HKSAR v. Tam Chun Hung

HCCC 279/2024

[2025] HKCFI 1250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 279 OF 2024

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REASONS FOR SENTENCE

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The Charge

1.On 29 August 2024, in the Eastern Magistracy, the defendant pleaded guilty to one count of trafficking in dangerous drugs, involving 9.81  grammes of a crystalline solid containing 9.66 grammes of methamphetamine hydrochloride (commonly known as “ICE”), and 271 grammes of a liquid containing 265 grammes of gamma-butyrolactone (also known as “GBL”)  (1^st Count).  He also pleaded guilty to one count of possession of a dangerous drug, involving 0.84 gramme of a crystalline solid containing 0.83 gramme of methamphetamine hydrochloride (2^nd Count).  On the same day, the defendant admitted a Summary of Facts dated 8 July 2024 and he was committed to the Court of First Instance for sentencing.  Today, before this Court the defendant confirmed his guilty pleas to the two charges and his admission of the Summary of Facts.

Facts Admitted

2.The facts of the case can be summarized as follows. 

3.On 3 October 2023, police officers saw the defendant leaving a flat at Mirador Mansion in Tsim Sha Tsui.  He was later intercepted for a search and nothing unlawful was found on him.  The officers escorted him back to the flat and gained access with the passcode provided by him.  They then opened the door of one of the rooms there using a key provided by the defendant.  The room had been rented by the defendant since September 2023.  The police searched the room and found on a table:-

(a)  A plastic bag containing 9.66 grammes of ICE (1^st Count);

(b)  An empty glass bottle and 3 plastic bottles containing a liquid of 265 grammes of gamma-butyrolactone (“GBL”)  (1^st Count);

(c)  A plastic bag containing 0.83 gramme of ICE (2^nd Count); and

(d)  A packet of empty resealable plastic bags, an electronic scale and a metal spoon.

4.The estimated street value of the ICE seized was about HK$4,484.

5.The defendant was then arrested and under caution, he admitted that he had brought all the drugs there and he had intended to share them with his friends.

6.In a subsequent cautioned interview, the defendant further admitted that:-

(a)  He had purchased the ICE and “Happy Water” from a seller on Telegram a few days ago at HK$8,000;

(b)  Some of the drugs were intended for self-consumption, and the rest was intended for sale; and

(c)  He would repackage the drugs and share them with others.

7.The defendant admitted that at all material times he was in possession of the subject dangerous drugs in the 1^st Count for the purpose of unlawful trafficking.

Background and Mitigation

8.The defendant was born in Hong Kong and is now 50 years old.  He has received up to Form 5 education in Hong Kong and is single.  He was unemployed at the time of his arrest.  He suffers from acquired immunodeficiency syndrome, a medical condition commonly known as AIDS. 

9.He has two previous convictions which were both related to dangerous drugs.  His first conviction was for possession of a dangerous drug and Part 1 Poison in December 2014.  His second conviction was in 2017 for trafficking in dangerous drugs and he was sentenced to imprisonment for 5 years and 6 months.

10.By the supplemental mitigation submissions filed with the Court on 17 March 2025, I was informed that on 3 September 2024, he was assaulted by a fellow detainee whilst being remanded at the Lai Chi Kok Reception Centre and as a result of the injuries suffered, his pancreas had to be removed.  I was further informed that despite being single, the defendant has a long-time girlfriend who gave birth to a child for him about a year ago.  

Sentence

11.In sentencing the defendant on the 1^st Count, I will follow the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

12.The first step is to identify the relevant guideline band applicable to the quantity or quantities of the dangerous drugs in question.  For the 1^st Count, there were two types of drugs being involved, namely ICE and GBL.  Given the small amount of GBL seized, Ms Tsang invited the court to disregard it when computing the sentence.  According to the guidelines set out in HKSAR v Ko Wai Shing [2021] 5 HKLRD 724 (at §62-63), 265 grammes of GBL should attract a sentence of about 3 months’ imprisonment.  On the other hand, 9.66 grammes of ICE should attract a sentence of about 6 years and 10 months.  Noting the small amount of GBL relative to the much larger quantity of ICE seized, the Court will deal with it in the following way:  the GBL will not be taken into account when assessing the base starting point for the 1^st Count, but the Court shall regard it as an aggravating factor against the defendant for trafficking in more than one type of drugs.  I shall return to this aspect later.  

13.Therefore, for the 1^st Count, the starting point will be 6 years and 10 months’ imprisonment.

14.The second step is to assess the role and culpability of the defendant.  According to his own admissions, the defendant claimed under caution that he had bought the ICE and the GBL from a seller on Telegram; he intended to consume some of it and the rest was intended for sale.  In the Summary of Facts, however, the defendant expressly admitted that he had possessed all the quantities being the subject matter of the 1^st Count for the purpose of unlawful trafficking. 

15.The third step is to decide where within the relevant guideline band the defendant should come.  In my assessment, the defendant was an actual trafficker.  For that reason, the appropriate starting point reflecting his greater role or culpability should be enhanced by 6 months, bringing it to 7 years and 4 months’ imprisonment.

16.The fourth step is to deal with aggravating factors, if any.  As mentioned before, the defendant has two previous drugs related convictions and for the second conviction of trafficking in dangerous drugs in 2017, he was sentenced to 5 years and 6 months’ imprisonment.  Due to his past drugs related records, I shall enhance the sentence by 6 months.

17.It is an aggravating factor for an accused to traffic in more than one kind of dangerous drugs “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.” (See HKSAR v Yim Hung Lui Ricky, CACC 266/2011, and HKSAR v Islam Azharul [2020] 1 HKLRD 644).  For this reason, I will enhance the starting point by 2 months, making a total of 8 years’ imprisonment.

18.The fifth step is to take into account the mitigating factors.  I do not regard the defendant’s personal or family circumstances or health conditions as any mitigating factor.  Therefore, the only mitigating factor in the defendant’s case is his guilty plea which was entered at the earliest opportunity.  Because of that, he is entitled to a full one-third discount.  That brings the sentence down from 96 months (or 8 years)  to 64 months’ imprisonment. 

19.Lastly, I consider this sentence fair, just and balanced in all the circumstances of the offence and the defendant.  Accordingly, the defendant is sentenced to imprisonment for 64 months on the 1^st Count.

20.Turning to the 2^nd Count of possession of a dangerous drug. 

21.It is for possession of a very small quantity of ICE.  I shall impose a sentence of 2 months’ imprisonment.  Taking into account the totality principle, I shall order the sentence for the 2^nd Count to run concurrently with that of the 1^st Count.

Exhibits

22.Order in terms of the Prosecution’s application, not objected to by the Defence, was granted.

Ms Yuen Wai Yee, Angel, SPP of the Department of Justice, for the Prosecution

Ms Manyi Tsang, instructed by Cheung, Yeung & Lee assigned by DLA for the Defendant