COURT: On 12 November 2019, just before 4.40 pm, Tam Tat-chung, (hereafter “the accused”) was seen at the Hong Kong China Ferry Terminal by officers of the Customs and Excise Service. He appeared to be about to depart Hong Kong.
The officers intercepted him and requested a search. In the course of that search, a transparent resealable plastic bag wrapped in a piece of tissue paper, which contained one transparent resealable bag containing 13.6 grammes of a crystalline solid containing 13.3 grammes of methamphetamine hydrochloride that was found in the inner pocket of the jacket worn by the accused.
The accused was arrested and cautioned by the officers. He characterised the substance found by the officers as “sugar”. He said that this was given to him by an unknown man in the Ladies’ Market in Mong Kok at about 11 am on the date on which the accused was intercepted. He admitted to the officers he would be paid $500 for delivering this package to a location which is specified in Macau. A written record was made of the oral admissions of the accused and he signed them to confirm they were true.
At the time of the interception, the accused was found in possession of a mobile phone and a very small amount of cash.
The accused admitted to a recorded of interview that was under caution. In the course of the interview, the accused admitted that the dangerous drugs belonged to him and he had been asked by a person in the Ladies’ Market in Mong Kok to deliver the drugs to a person at a specific location in Macau, for which he would be rewarded by a payment of $500.
The estimated street value of the drugs as of November 2019 was just over $7,000.
It is perhaps noteworthy that the urine sample supplied by the accused to the Correctional Services Department after he was remanded in custody was negative for, amongst other things, amphetamines.
Procedural History
Following the arrest of the accused, he was taken before a magistrate on 13 November 2019. In a result, he appeared before Mr Cheang Kei-hong, sitting as a permanent magistrate in the Eastern Magistrates’ Court on 5 October 2020. On that occasion, he pleaded guilty to the charge of trafficking in a dangerous drug and admitted the Summary of Facts, the essence of which I have outlined just a moment ago. The learned magistrate committed the accused for sentence to this court.
Charge
The charge upon which the accused was committed alleged trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134. The particulars alleged that on 12 November 2019, at the Departure Hall of the Hong Kong and China Ferry Terminal in Tsim Sha Tsui, trafficked in a dangerous drug, namely, 13.6 grammes of a crystalline solid containing 13.3 grammes of methamphetamine hydrochloride.
Antecedence and Mitigation
The accused is 62 years of age and is a holder of the Hong Kong permanent identity card. The accused is a divorced person and lives with his 28-year-old daughter in a public housing estate in Tseung Kwan O. He has one previous conviction for gambling offence which occurred well over 10 years ago. That is completely irrelevant for the purpose of sentencing.
Counsel for the accused has drawn to my attention the medical report from the United Christian Hospital on the accused. The report is dated 30 September 2020. What emerges from that report is that the accused has suffered from schizophrenia since 1987. What appears also of importance is that he is receiving medication from that hospital and is receiving treatment from the psychiatric centre attached to the hospital. Dr Ng Kwok-chuen, the author of the report, observes that the accused, for the last attempt at the hospital, revealed that his mood was neutral, his speech was coherent and relevant and that there were no psychotic or suicidal features elicited. In the opinion of Dr Ng, the mental condition of the accused is stable and he is mentally fit to manage his personal affairs.
When this case originally come for consideration, I wanted to ascertain whether the Correctional Services Department was aware of this diagnosis. I have received a very thoughtful memorandum from the Chief Officer (Hospital) at the Stanley Prison. It seems that the prison authorities are very well briefed on the issue.
The court has also received a letter from the accused who set out his family circumstances and confirmed that he has been receiving psychiatric treatment for a long time. In that letter, he told me of his remorse. I accept the contents of the letter as true.
Sentencing Principles
Starting point (Trafficking)
The community of Hong Kong and as a result of the courts of Hong Kong have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates time and again that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. The trafficking and possession of ‘Ice’ can also have serious consequences for family members closed to the accused.
However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health services to help people who have become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private, and more pertinently in public, can be quite dangerous. The view of the community and the court is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
To reflect the serious view that the courts and community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs, including ‘Ice’, which is of course the subject of the charge in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.
In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. For between 10 grammes and 70 grammes of ‘Ice’, suggested guidelines were imprisonment for between 7 and 11 years. The range in question is upon the basis of a sentence following a conviction after trial. That is the basis upon which the starting point is calculated. The guidelines which are recognised in HKSAR v Tam Yi Chun reflect the seriousness of trafficking in this drug.
Discount
The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent. Further, cooperation with the authorities may attract varying levels of discount. The critical test is whether the assistance to the authorities is “effective assistance”.
Application of Sentencing Principles
Starting Point
It is necessary to identify the seriousness of the offence and the role of the accused in this act of trafficking. He was, on any view, a courier and was intending to conclude his act of trafficking in Macau. In my assessment, the accused in this case is a small-time first time cross-border trafficker for reward.
The drugs would not end up, in gist, in Hong Kong does not diminish the problem. Hong Kong is interested in assisting other placed (including, perhaps more particularly, other places in the People’s Republic of China) to suppress drug trafficking hardly needs to be stated. That Hong Kong is concerned about such suppression is underlines, at least in part, the enhancement which is often considered appropriate for the cross-border element of trafficking. It is well-recognised that there is a range of culpability amongst traffickers and taking into account of the nature of the trafficking and the destination is part of that assessment of the culpability in this regard.
Given the assessment of the accused’s culpability, there is a sense of double counting if an enhancement for cross-border element is added to a properly founded sentence that which identifies the culpability of a trafficker including one who has, in this case, traffics to a place outside Hong Kong. I perceive that at least an element of the notion of the enhancement for cross-border trafficking came into being on the basis of the perception in the court that did not recognise (or did not recognise as much) the range of culpability that can exist within, for example, those who can be properly characterised as a courier. There should be an evaluation of the nature and conduct of a trafficker that can be characterised as a courier, and that was recently articulated in HKSAR v Herry Jane Yusuph [2020] HKCA 974.
The Court of Appeal in Yusuph rejected the proposition that once the label “courier” is to be attached to the conduct of a person to be sentenced for trafficking in dangerous drugs, that is the end of the discussion. Specifically, the Court of Appeal rejected the analysis in HKSAR v Manalo [2001] 1 HKLRD 557 which has suggested that what the court characterised as “a discretionless starting point based on the quantity of the dangerous drugs alone.”
In Yusuph, Court of Appeal concluded:
“The danger of such a discretion-less approach is that it makes the same erroneous assumption as Justice Stuart-Moore, Acting CJHC, made in Manalo, that is that there is a precise arithmetical starting point for anyone who comes within the general description of ‘courier’ or ‘storekeeper’”.
The court went on to say there is repose in the sentence or a discretion to assess the role and culpability of the accused in deciding where in the applicable sentencing band, or, possibly, whether a person should be sentenced outside such a band.
If the sentencing approach in Manalo operated, it is easy to see why there would be an enhancement for cross-border trafficking. It may be that such an enhancement would continue to be appropriate in serious and organised cross-border trafficking. Whether that is correct or otherwise, this accused in this case does not appear to be that sort of trafficker. It is, of course, true that he got the drugs from one person in Mong Kok and was taking them for a small reward to another person in Macau.
In any event, the quantity of drugs is relatively small in this case and if there was to be an enhancement for the cross-border element, it would be a fairly small one. Taking into account the relatively small quantity of drugs and the fact that I have identified the role of the courier, he’s a small-time first time cross-border trafficker, there is no need to enhance the sentence further. If I was wrong about that, I should indicate I would have enhanced the sentence by between 1 and 2 months.
Accordingly, in my judgment of the culpability of this trafficker as represented by a sentence which is perhaps a fraction under the mathematical calculation which might apply for this quantity of methamphetamine hydrochloride under the relevant band of the guidelines. Accordingly, I fix the starting point at 7 years.
Counsel for the accused contends an adjustment for the starting point should be made given that the accused suffers from schizophrenia. The medical evidence suggests that is under control. There is no suggestion that the condition was anything other than under control at the time of the conduct, the subject to the charge. The authorities revealed that if an accused is suffering from mental illness which played a part in the commission of the offence, the court may properly allow a discount for sentence, and there I cite HKSAR v Chiu Peng [2002] 1 HKLRD 185, §16; HKSAR v Tsui Mei Ying [2002] 4 HKC 689, 691; HKSAR v Yeung Kwun Kuen [2014] 1 HKC 463 and HKSAR v Chan Sau Lan [2018] 2 HKC 548, §2, 33 and the references are given.
It appears that the court may be less ready to impose a discount where the deterrence is an important component of the sentencing rationale, see HKSAR v Chan Sau Lan. Nevertheless, even where deterrence is considered paramount, there would be cases which would justify according a discount, see HKSAR v Chiu Peng and HKSAR v Tsui Mei Ying. The rationale appears to be, in those cases, that the discount might be considered where the mental illness diminishes the criminality or culpability on the part of the accused.
It is contended that the accused may suffer more in prison, and that consideration would appear to me to be answered by the fact the prison authorities are well aware of his condition and will act accordingly. There is also a suggestion that he may be more vulnerable to commit an offence.
It does not follow that the fact that a person is suffering from a mental illness that a discount for that mental illness will be given to the accused. The authorities recognise that there must be a case-specific or individualised assessment of whether to accord the accused the discount and, if so, what that discount should be. In my judgment, given the evidence is that the schizophrenia is well-managed, no discount is appropriate in these specific circumstances. As I say, it is likely that it will be well-managed in prison. I will apply the recognised discount for a plea of guilty at the earliest practicable moment and that sentence will be reduced by one-third.
I take into account (1) the serious nature of the drug and its harm or potential harm to the community, including the community where the drug was destined; (2) the nature of the conduct of the accused, that he is small-time first time courier; (3) the remorse of the accused; (4) his offer of assistance to the authorities; (5) his previous minor criminal record which is relatively trivial, non-drug related and a long time ago. To a very, very limited extent, his mental illness and his plea of guilty at the earliest practicable moment. What I have done is I have pushed the discount up to 35 per cent. Accordingly, I wonder if the accused could stand up please.
The order of the court is that you will be sentenced to 4 years and 6 months’ imprisonment.