HKSAR v. Chan May Yam

HCCC 412/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 412 OF 2014

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REASONS FOR SENTENCE

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1.The defendant, Chan May‑yem, pleaded guilty to the charge of trafficking in dangerous drugs in the Magistrate’s Court and was committed to this Court for sentence. The relevant particulars of the charge were that on 2 April 2014, at the Sun Hing Building situate at Mongkok, Kowloon, the defendant unlawfully trafficked in a quantity of power containing 391.59 g of ketamine.

2.Brief facts have been agreed to reflect the factual circumstances of the commission of the offence and the basis for the plea of guilty by the defendant.  

3.On 2 April 2014, police officers carried out an anti-drug operation in the vicinity of the Sun Hing Building.  At about 1:48 pm, the defendant was observed walking down the stairwell from the 13^th to the 12^th floor of the building.  She was stopped by the police who carried out enquiries with her.  A messenger bag that she was carrying was searched and found inside was a coin bag in which were 13 plastic bags and 14 packets all containing what appeared to be drugs.  This was confirmed to consist of 50.15 g of a powder containing 40.39 g of ketamine.  On this discovery, the defendant immediately told the police to give her a chance.  She was then cautioned after which she said: '”I sell K Chai only because I am unemployed”.  She was arrested and further cautioned after which she stated: “I sell K Chai only because I have no money for food”.

4.The search of the bag also uncovered two bunches of keys, three mobile telephones and a quantity of cash in the sum of $7570.  One set of keys provided access to the premises at Flat 1213D which was searched.  The police found on a table in the flat five plastic bags containing what appeared to be drugs, a wad of white pieces of paper, a quantity of plastic bags and a scale.  The suspected drugs were confirmed to consist of 121.01 g of a powder containing 81.24 g of ketamine.  Again the police cautioned the defendant after which she stated: “Ah Sir, there are all the K Chai.  I sell K Chai to others only because I have to earn a living”.

5.Upon enquiries, the police learnt that the defendant resided in Flat 2408D in the building.  With the other set of keys found on the defendant, the police gained access to the flat which was searched.  The police uncovered a plastic box in the flat in which were a further 79 plastic bags containing what appeared to be drugs.  The suspected drugs were confirmed to consist of 320.44 g of a powder containing 269.96 g of ketamine.  With respect to what was found, the police arrested and cautioned the defendant after which she said: “Ah Sir, I say the same thing.  I sell K Chai to others only because I have no money”.

6.The total quantity of drugs seized was 491.60 g of a powder containing 391.59 g of ketamine.  The estimated retail value of the drugs at the time of their seizure was $58,009.

7.The defendant admitted to the police that the drugs seized from her were ketamine that she would sell the drugs to others.  She said she obtained the drugs from a male known as “Ah Shing”.  She said the day before her arrest she had obtained 250 g of ketamine which was delivered to her flat by an unknown male.  She paid $9,500 for the drugs.  The two flats in the building were rented by her with the upper flat as her residence and the lower flat as a place where she conducted her drug activities.  She said she sold drugs to other people many of whom were young persons.  The customers would come to the lower flat for trade.  She said that the drugs and packaging equipment found inside the flats belonged to her.  She said the drugs found on her and in her residence were those she purchased from Ah Shing.  

8.The defendant is 57 years old.  She is a person with a clear record except for a minor traffic offence committed sometime ago.  She was educated to primary school level.  It was submitted on her behalf that she has lived a trouble‑free life and it was only because of her serious financial difficulties that she resorted to selling drugs.  The defendant has submitted a letter to the Court.  She explained that she has a son and daughter from a relationship that spanned from 1975 to 1982 when the father of the children left her.  She worked as a sales lady earning $6,000 to $7,000 per month.  She lived with her children in a public housing unit.  She explained that because she had to earn money to support her family, she was neglectful of her children.  Her son, as a consequence, got into trouble and is now serving a prison sentence.  He is 39 years old.  The son married a Mainland woman who resides there.  They had a child who was born in 2010.  The defendant has taken care of their son who is 4 years old.  As a result of her imprisonment for this offence, the child has been returned to the mother in mainland China, even though she wished the child to have an upbringing here in Hong Kong.  She claimed because of her age and circumstances she engaged in this crime in order to make money for her family.  She also has a daughter who is aged 31 years old who is married with two children.  The defendant comes from a large family from whom she has concealed her life of crime.  It was submitted on her behalf that as result of this crime she has brought shame to her family. 

9.It is always sad and tragic to see a middle‑aged person who has lived basically a decent and law‑abiding life to resort to crime because of hard times or difficult circumstances.  I would like to be sympathetic but I cannot.  It is clear from what was uncovered by the police that the defendant was involved in an elaborate operation of selling drugs, in particular to young persons, providing them with a drug that is commonly used by the youth of Hong Kong and which has become a serious problem here.

10.Madam Chan, I hate to think how many young lives your drug trade has harmed or possibly destroyed.  Whatever your dire circumstances may have been to lead you into this criminal enterprise, the harm and hurt that you have caused others by it is unforgivable.

11.On the other hand, there is no doubt that we all bear the responsibility for people like you who having lived a decent and law‑abiding life, for some unknown reason turned to crime to extricate themselves from hard times or difficult circumstances.  I do feel sorry for you and maybe we should all do more to prevent others like you from doing what you have done.  However, you now have to pay a heavy price.

12.It is to your advantage, and may be a reflection of your true character, that when you were apprehended by the police you candidly and fully admitted your involvement in the drug trade and cooperated with the police in their enquiries.  In determining the sentence to be imposed, I will bear in mind your background and the co‑operation that you gave to the investigating authorities.  The higher courts have set tariffs when sentencing for trafficking in drugs and because of the growing problem of ketamine abuse, in particular amongst young persons, tariffs have been set for trafficking in ketamine which as one would expect are severe.  For the quantity involved of 391.59 g of ketamine, a tariff is set of 9 years and 10½ months’ imprisonment after trial.  When it comes to sentencing for trafficking in drugs, the tariffs that are set provide a strict guide to the courts to follow.  There is obviously scope to adjust the tariff upwards or downwards depending on the nature of any aggravating or mitigating factors and there is some flexibility as to the starting point to be imposed as long as there is general adherence to and recognition of the tariff that has been set.  Sentencing is founded on a body of legal principles and criteria, and when it comes to the application of them, it will naturally depend on the particular circumstances of the case.

13.In your case, and in particular given your background and circumstances, I will reduce the starting point slightly to 9 years’ imprisonment which I will further reduce by one third for your plea of guilty.  There being no other factors that warrant a reduction of sentence, I sentence you to 6 years’ imprisonment.

Ms PJ Power, SADPP of Department of Justice, for HKSAR

Mr MA Ming Tak Stephan, instructed by Messrs Tang & Lee, assigned by Director of Legal Aid, for the defendant