HKSAR v. Tam Lok Sin and Another

DCCC554/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 554 OF 2012

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Reasons for Sentence

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1.D1 and D2, you have each been charged with an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Charge 1 is against D1 and Charge 2 is against D2.

2.D1, you have pleaded guilty to the charge.  D2, you pleaded not guilty to the charge and I found you guilty after trial. Although the charges were laid against each of you separately, the facts in support of charges were the same.

3.The facts can briefly stated as follows.  On 26 March 2012, the 1st defendant (D1) handed a plastic bag containing drugs to the 2nd defendant (D2) outside Wah Yu House, Wah Fu Estate.  This handing over of the drugs was witnessed by PW4, a police officer, who was making an observation nearby.  Once the plastic bag of drugs was handed over from D1 to D2 the police officers immediately took action and intercepted both defendants.

4.The plastic bag of drugs was found on the rear seat of the taxi, next to the D2 who was sitting there.  D1 had not boarded the taxi he handed the drugs to D2 whilst he was standing outside of the taxi and D2 was inside of it. 

5.The plastic bag contained two cigarette boxes and a soft drink box.  The drugs were contained in the boxes.  One cigarette box contained 13 plastic bags of the drug ketamine.  The lemon tea soft drink box contained 15 plastic bags of the drug cocaine.  The other cigarette box contained one plastic bag containing the drug ketamine. 

6.In total the drugs, as is laid out in the charge, was 62.63 grammes of a powder containing 32.3 grammes of ketamine and 3.82 grammes of a solid containing 2.79 grammes of cocaine. 

7.Mr Justin Cheung, counsel for the 1st defendant, and Mr Mark Sutherland, counsel for the 2nd defendant, has made full and thorough mitigation on behalf of the 1st and 2nd defendants respectively. 

8.I turn first to deal with the 1st defendant. The 1st defendant is 39 years of age.  He has two previous convictions, both dating back to 1995, of which there one is related to drugs which was a charge of possession of a dangerous drug, he was fined $1,500.  The defendant is single and lives with his mother.  I have received three letters in mitigation written by the defendant, his previous employer and his family members, his mother, sister and brother-in-law. 

9.As for the 1st defendant, he sets out that he is deeply remorseful for the crime he committed and that he is deeply remorseful for his foolishness on his part.  He is worried about leaving his mother alone at home.  His family members praise him highly.  They say that it was a moment of foolishness and that he was used by others.  That is why he committed this foolish act.  They begged the court for leniency.  The employer of the defendant also states that the defendant was hard-working and ambitious. 

10.As for the 2nd defendant, he is 32 years of age.  He has 12 previous convictions upon four separate appearances at court. None of those offences relate to dangerous drugs.  The last conviction was in 2004, some nine years ago.  Prior to that, from 2001 to 2004, he committed about 12 offences, of which he was sentenced to fairly lengthy periods of imprisonment. The defendant also lives with his mother and sister and is single. 

11.Counsel have recognised that for trafficking in dangerous drugs there are very clear tariffs laid down by the Court of Appeal. For the tariff guidelines for heroin and cocaine, the relevant case is that of R v Lau Tak Ming.  The tariffs for ketamine is laid down in Hii Siew Cheng.

12.I shall first set out the starting points for each type of drug.

13.For the ketamine, the amount was 32.30 grammes. The amount of drugs falls within the third bracket of 10 to 50 grammes, which warrants a sentence of 4 to 6 years’ imprisonment after trial.  For the amount of drugs of ketamine, in this case I take a starting point of 5 years after trial. 

14.For the amount of cocaine involved in this case, the relevant guideline case is that of Lau Tak Ming.  The amount of cocaine involved was 2.79 grammes.  That falls within the first bracket of up to 10 grammes and a starting point of between 2 to 5 years’ imprisonment. 

15.For that amount of cocaine I consider an appropriate starting point after trial would be 2 years and 6 months’ imprisonment. 

16.Defendants, you have trafficked in more than one type of dangerous drug.  In sentencing for different types of drugs involved there are two approaches, one of an individual approach, where an appropriate starting point is determined for each type of dangerous drug, and then they are combined into an overall starting point prior to any sentence. 

17.The second approach is the combined approach where a starting point is determined for the most serious type of dangerous drug and is then adjusted upwards in the light of the quantity of the less serious drug in order to arrive at the ultimate starting point.  No matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point. 

18.I consider that an individual approach is appropriate, and in considering the overall totality of sentence for these two different kinds of drugs I consider a starting point of 5 years and 6 months’ imprisonment to be appropriate. 

19.For D2, you were convicted after trial and therefore you shall be sentenced to 5 years and 6 months’ imprisonment.

20.For D1, that is the starting point I shall use to sentence you.  However, as you pleaded guilty, you are entitled to a one-third discount to that sentence. You shall be sentenced to 3 years and 8 months’ imprisonment.