HKSAR v. Tsang Pak Lam

HCCC 88/2023

[2023] HKCFI 1910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 88 OF 2023

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, on 11 April 2023, you pleaded guilty to two charges of trafficking in a dangerous drug before a magistrate sitting at the Eastern Magistracy. As a result of your plea of guilty, you were committed to the Court of First Instance for sentence.

The two charges you admitted were committed on the same date and at a similar location but to different quantities. The date of the two charges is 2 June 2022 and for the 1^st charge, it was committed at the lobby of the Ground Floor of Tower 2 of The Pavilia Bay, Tsuen Wan, New Territories, and in Charge 2, it was committed on the 18^th Floor of the same tower at Flat E of the same building.

In Charge 1, you admitted to trafficking in 992 grammes of a solid containing 834 grammes of ketamine. In Charge 2, you admitted to trafficking in 351.5 grammes of a solid containing 289.2 grammes of ketamine and 126.52 grammes of a solid containing 104.87 grammes of cocaine.

Although you admitted the Summary of Facts at the Eastern Magistracy, the facts were slightly amended before this court today and the amended Summary of Facts has also been admitted by you.

The facts of this case are as follows. In the evening of 2 June 2022, customs officers were conducting an anti-narcotics operation in plainclothes in Tsuen Wan. At about 8.35 pm, they saw you carrying a bag entering the lobby on the Ground Floor of Block 2A of The Pavilia Bay. Customs officers intercepted you and searched you.

Found in the bag you were carrying was the quantity of drugs in Charge 1 contained in four plastic bags. You were arrested and cautioned and upon arrest, you admitted the bags contained drugs and that you were asked by an unknown caller to pick up those drugs and to bring them to Flat 18E and to repack them. You said that you had received a remuneration of $1,000 per unit and each unit weighed 24 grammes.

In respect of Count 2, at about 8.45 pm, you led the customs officers to Flat 18E on the 18^th floor and provided the password to the flat to open the door. In the flat were found two electronic scales and 981 plastic bags containing the drugs quantified in Charge 2. Also found were a large number of empty resealable plastic bags and empty plastic bags.

You were again cautioned and under caution you stated that the plastic bags contained drugs, namely ‘K Chai’, ketamine and ‘Coke’, cocaine, and that you had repacked the drugs and waited for someone to call and collect the drugs for $1,000 per unit. You stated you did not know who the tenant of the flat was, that someone called you and gave you the password to open the door of the flat. You admitted that the electronic scales and the plastic bags were for repacking the drugs. The customs officers seized cash of $12,020 and two mobile phones which were in your possession.

In June 2022, the estimated street value of the ketamine was $730,864 and the cocaine $105,770.72. The total estimated street value of the drugs seized was $836,634.72.

Defendant, at the time of the commission of this offence, you were 17 years of age. You are now aged 18 and you were born in Hong Kong. You have received education up to Form 2 in Hong Kong. However, whilst you were still a Form 2 student, you were involved in a robbery offence which took place on 11 January 2022.

You have one previous conviction which relates to possession of offensive weapon to which you were sentenced to 10 months’ imprisonment on 31 August 2021. You are single and lived with your father, grandparents and uncle in a flat in Tsing Yi. Your mother left home soon after you were born and you were brought up in a Po Leung Kuk hostel since young. Then you were arranged to live in a hostel in Shek Pik when you were 11. You only returned to live with your father and your relatives in 2018. Your previous employment included making hamburgers in a market and a shop attendant in a frozen goods shop.

Mr Wong Po-wing, your counsel, has set out full written mitigation on your behalf. As stated by him, in Form 2, you committed an offence of conspiracy to rob. That, I am told, was the first offence you committed and the date of that offence was in January 2020. Between January to March 2020, you were charged with an offence of inflicting grievous bodily harm, contrary to section 19. For this offence, you have pleaded not guilty and I understand are awaiting trial in the District Court.

In the meantime, in March 2020, you committed the offence of possession of offensive weapon to which you were sentenced in 2021 to 10 months’ imprisonment. I am informed by Mr Wong that you had been released from prison for that offence on 9 March 2022. Within three months from being released from that term of imprisonment, on 2 June 2022, you committed these two drug trafficking offences.

Although there is one other offence of possession of offensive weapon in part B of your criminal record, I am informed by Mr Wong that you have been told that you will not be charged for that offence and your bail money is being returned.

You have written a very heartfelt letter to this court, expressing your remorse. You realise that despite your very young age, you have already committed some very serious offences so far. You are determined to turn anew and you say you will work hard to better yourself in order to care of society and other people and you are hoping to make a fresh start after your release from your terms of imprisonment. You admitted that due to your momentary greed, you committed these irrational acts that are irresponsible to society and understand that you must take responsibility for your acts.

Defendant, correctly, you are a very young man having committed some very serious offences. I am informed that for the conspiracy to rob charge, you have pleaded guilty and you will be sentenced in the High Court sometime after 11 October 2023. I hope that your words that you had written to this court are sincere and that you will turn anew not only once you are released from prison, but whilst you are in prison and work hard to do so.

For these two offences of trafficking in dangerous drugs, these are serious offences to which you realise, and as stated in your letter cause very serious damage to society. For that reason, the courts in Hong Kong have set down sentencing tariffs or guidelines for trafficking in dangerous drugs as these are serious offences.

For these two charges, it involved two different kinds of drugs. The 1^st charge involved ketamine and the 2^nd charge involved ketamine and cocaine. For the purposes of sentencing, as is stated by Mr Wong in his submissions, I agree with him and take the combined approach and use the base drug as ketamine and convert the cocaine to the base drug ketamine.

As referred to in HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 paragraph 3(3):

“...where the ‘combined approach’ is taken, the court will rely on common sense in determining which type of the dangerous drug is to be regarded as the more serious hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis of the starting point.”

In this case ketamine, although the less potent drug, is present in much larger quantities and for that reason I base the base drug on ketamine. That case was also referred to in the more recent of HKSAR v Islam S M Majharul [2020] 3 HKLRD 146 at paragraph 24.

For the purposes of sentence, I shall take the total quantity of drugs involved by converting all the drugs to ketamine and arriving at a sentence and sentence you individually for the two charges.

Defendant, for Charge 1, you were trafficking in 834 grammes of ketamine. The guideline case for trafficking in ketamine is HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1. In amounts between 600 to 1,000 grammes, the appropriate sentence is one of 12 to 14 years’ imprisonment. For the amount of 834 grammes, had you been convicted after trial, I would have taken a starting point of 13 years and given your early plea of guilty, which is the greatest mitigating factor, that term shall be reduced to 8 years and 8 months’ imprisonment. I find there to be no aggravating factors in this case.

For Charge 2, there was 289.2 grammes of ketamine and 104.87 grammes of cocaine. As I mentioned, I will be converting the cocaine to ketamine and therefore the sentence, had you been convicted after trial, for cocaine of 104.87 grammes, the leading case is that of Lau Tak Ming [1990] 2 HKLR 370, for that amount of cocaine, it falls within the bracket of 50 to 200 grammes which warrants the sentence of 8 to 12 years’ imprisonment. For that amount of cocaine, that would warrant a term of 9 years and 3 months’ imprisonment. That would convert to approximately 324 grammes of ketamine.

By adding 324 grammes of ketamine to the 289.2 grammes of ketamine in Charge 2, that would make a total amount of ketamine in Charge 2 to 613.2 grammes of ketamine. In following the case of Hii Siew Cheng, that falls within a bracket of 600 to 1,000 grammes which is a term of imprisonment after trial of 12 to 14 years.

For this charge, defendant, I take a starting point of 12 years and giving you full credit for your plea of guilty, I reduce that term by one-third to one of 8 years’ imprisonment.

I turn to the principle of totality. The total ketamine in this case would be 834 grammes in Charge 1 plus the 613.2 grammes of ketamine in Charge 2, which makes a total of 1,446.2 grammes of ketamine. For amounts of over 1,000 grammes of ketamine, the cases of Chow Yau Ching [2014] 2 HKLR(HKLRD?)  639 and Sze Kin Wang [2014] HKEC 1195 are appropriate. These are suggestions for large quantities of ketamine such that large quantities between 2 to 3 kilogrammes warrant 18 to 20 years’ imprisonment.

Taking 1,446.2 grammes of ketamine, I consider a starting point of 15 years and 6 months to be appropriate had you been convicted after trial. And giving you the full one-third discount, that would amount to 10 years and 4 months to which term you shall serve.

To reflect the sentence of 10 years 4 months, I would have 1 year 8 months in Charge 2 to run consecutive to Charge 1, which makes a term of 10 years and 4 months’ imprisonment.