HKSAR v. Tam Kwok-wing

DCCC 127/2022

[2023] HKDC 368

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 127 OF 2022

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved were ketamine and cocaine.

Summary of Facts

2.About 11:45 p.m. on 12 September 2021, PC 10722 intercepted the defendant for enquiry.  He was in the driver's seat of a private car SF2258 ("the Car")  parked near Tin Shui Path outside Heng Lok House, Tin Heng Estate, Tin Shui Wai.  His wife (Madam Yau)  was in the front passenger seat of the Car.

3.The defendant was searched.  The following items were found in a black shoulder bag carried by him :-

(i)  54 transparent resealable plastic bags which contained a total of 19.6 grammes of a solid containing 17 grammes of ketamine (collectively E1); and

(ii)  6 transparent resealable plastic bags which contained a total of 0.95 gramme of a solid containing 0.8 gramme of cocaine (collectively E2).

4.The defendant was arrested.  Under caution, he said "Ah Sir, I have schizophrenia and diabetes, so I could not find a job.  I borrowed money from finance companies.  So I sold drugs and earned money by drug trafficking.  My wife does not know I was trafficking drugs."

5.The Car was searched in the presence of the defendant and Madam Yau.  In the compartment by the door handle of the driver's seat, 80 transparent resealable plastic bags which contained a total of 13 grammes of a solid containing 10.9 grammes of cocaine (collectively E3)  were found.

6.Under further caution, the defendant said "The drugs are Coke and K Chai, both belonging to me.  They are used for trafficking to repay the money.  It's none of my wife's business."

7.In his video recorded interview, the defendant admitted that the drugs found (i.e. E1 to E3)  were given to him by an unknown person for selling on that person's behalf.  Part of the drugs was intended for self-consumption.  This was his first time selling drugs for others.  The defendant also revealed the selling price of both types of drug per packet.  He would receive $2,000 as his reward, but has not yet received the money.  He borrowed the Car from someone.

Mitigation & Sentence

8.The defendant is 40 and has 8 conviction records which included 2 "simple possession" offences in 2001 and 2003 respectively.  Defence counsel Mr. Yuen informed me that the defendant separated from his wife in 2022.  They have 2 children (aged 3 and 1).  Prior to his arrest, the defendant was a casual transportation worker earning about $20,000 per month.  He was residing with his parents.

9.In mitigation, Mr. Yuen submitted that the defendant engaged in drug trafficking because he owed the drug dealer money.  Mr. Yuen also submitted that a small part of the drugs found was intended for the defendant's self-consumption.  The defendant is, however, unable to give a figure on the quantity for self-consumption.  He could only say that his daily consumption of both drugs combined is about 0.5 gramme. 

10.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1)  and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years' imprisonment.  For 10 to 50 grammes of cocaine, it ranges from 5 to 8 years' imprisonment.

11.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR v Cheng Yat Ming CACC 455/2006.

12.In the present case, the defendant trafficked in a cocktail of drugs consisting of 17 grammes of ketamine and 11.7 grammes of cocaine.  For 17 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 52 months' imprisonment.  For 11.7 grammes of cocaine, applying a strict arithmetical approach, the appropriate starting point is 62 months' imprisonment.  I consider the "combined approach" would arrive at a realistic and fair sentence. 

13.In terms of potency, 11.7 grammes of cocaine should form the basis of the starting point.  Hence, I adopt a starting point of 62 months' imprisonment and adjust it upward by 9 months for the ketamine, arriving at 71 months.

14.Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. Prosecuting counsel Mr. Yuen accepted that the defendant has mentioned being a drug user whilst under caution and that he has 2 convictions of "simple possession".  Other than that, there is no further evidence on self-consumption, needless to say the quantity of each type of drugs found (based on their storage locations, packaging or otherwise, which might be indicative of such portion being reserved for the defendant).  Having considered all relevant matters, since the defendant is a fresh offender of drug trafficking, I am prepared to grant him a nominal discount of 2 months for self-consumption as an act of mercy, reducing the starting point to 69 months.

15.With the timely guilty plea, the sentence is therefore reduced to 46 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 46 months' imprisonment.