A A
B DCCC 429/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 429 OF 2012
E E
--------------------
F HKSAR F
v
G G
TAM Man-to
H -------------------- H
I I
Before: Deputy District Judge Chainrai
J Date: 10 July 2012 J
Present: Mr Alvin Chui, PP of the Department of Justice, for HKSAR
K K
Mr Yeung Kam Yuen Roderick, of Yeung & Chan, assigned
L L
by the Director of Legal Aid, for the defendant
M
Offence: Trafficking in a dangerous drug (販運危險藥物) M
N N
------------------------------------
REASONS FOR SENTENCE
O O
------------------------------------------
P P
1. The defendant has pleaded guilty to an offence of trafficking
Q in 4.46 grammes of a crystalline solid containing 4.25 grammes of Q
methamphetamine hydrochloride, namely ice, contrary to sections 4(1)(a)
R R
and (3) of the Dangerous Drugs Ordinance, Cap 134.
S S
T
2. Facts admitted by the defendant disclose that at around 7.40 T
th
p.m. on 10 March, 2012, police officers patrolling at 15 floor, Tin Mei
U U
V V
- 2 -
A A
B House, Tin Ping Estate, Sheung Shui, saw the defendant walking out of his B
home towards the rear staircase in a furtive manner. He was intercepted at
C C
the staircase for inquiry. Upon search, a plastic bag containing 6 packets
D containing the dangerous drugs the subject matter of the present charge, as D
well as a plastic spoon an electronic scale and a plastic bag containing
E E
some empty resealable plastic bags were found from the defendant’s right
F front jacket pocket. 3 mobile phones were found from his left front jacket F
pocket. The defendant was arrested and cautioned and said under caution
G G
that he intended to hide the ‘ice’ and he would take it out for sale to others
H upon request. In a subsequent video recorded interview under caution, he H
said he had purchased the dangerous drugs in question at around 4 to 5 p.m.
I I
on 10 March, 2012 for HK$2,000. He sold the dangerous drugs to
J customers who would call him to order the drugs, and after he received J
payment, he would instruct his customer to pick up the drugs from a
K K
designated hiding place. He sold the drugs at HK$3-400 per gramme. The
L L
plastic spoon found was for separating the dangerous drugs and the
M
electronic scale was for weighing the dangerous drugs, while the empty M
resealable plastic bags were for packing the dangerous drugs. Two of the
N N
three mobile phones found from him were for receiving calls from
O customers who wanted to buy dangerous drugs from him. The estimated O
street value of the dangerous drugs seized was HK$4,307.00. The
P P
dangerous drugs seized was examined by a government chemist and
Q confirmed to be a total of 4.46 grammes of a crystalline solid containing Q
4.25 grammes of methamphetamine hydrochloride.
R R
3. As Mr Yeung, counsel for the defendant rightly said, the tariff
S S
for trafficking in “ice” was laid down in AG v Ching Kwok Hung [1991] 2
T HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004 T
U U
V V
- 3 -
A A
B (unreported). For trafficking up to 10 grammes of “ice”, a term of B
imprisonment of between 3 to 7 years is called for.
C C
4. The defendant is now aged 28 years. His criminal record
D D
dates back to 1998. He has 8 previous convictions in 4 court appearances.
E E
Although he has no previous convictions for trafficking in dangerous drugs,
F
he had 2 previous convictions in 2008 for possession of dangerous drugs, F
for which he was sentenced to the DATC. For his most recent convictions,
G G
which were in 2009 for offences of forgery of documents and other driving
H
offences under the Road Traffic Ordinance, Cap 374, as well as using a H
motor vehicle without third party insurance (Cap.272), he was fined for
I I
some offences and sentenced to the DATC for others.
J J
5. Although Mr Yeung had indicated that he did not take issue
K with the contents of the Antecedent Statement, which states the defendant K
is single, he submitted in mitigation that the defendant is married but
L L
separated from his wife. In my view, whether he is single or separated is of
M little consequence for offences of this nature. Mr Yeung submitted that the M
defendant’s mother, in her 50’s, was in court today to show her support for
N N
the defendant. His father is aged 65 years. Both parents depend upon
O public assistance. He has two sisters, both of whom are married. He O
worked as a delivery worker for IKEA prior to his arrest for the present
P P
offence, earning $10,000 a month. Mr Yeung submitted that the defendant
Q was not a drug dependant, although he took drugs occasionally for fun. Q
R R
6. The defendant admits that he was in possession of the drugs in
S S
question for trafficking, although in mitigation counsel for the defendant
T
submitted that a half would be for his own consumption, while half was for T
U U
V V
- 4 -
A A
B sale to others for a small profit. Counsel for the prosecution does not accept B
that some of the dangerous drugs could be for the defendant’s own use. He
C C
submits that upon his arrest, the defendant made no mention that any of the
D drugs was for self-use. Under caution at the scene, he said he was hiding D
the drugs and would take them out upon request by others for sale. In the
E E
subsequent video recorded interview under question, he again made no
F mention that any of the drugs were for self-use – he mentioned when he F
had bought the drugs and for how much, and his mode of sale and even the
G G
use of the electronic scale, the spoon, the resealable plastic bags and the
H mobile phones found upon his person upon search. Defence counsel H
submitted that the defendant was not a drug dependant, and he only took
I I
drugs occasionally for fun. If he was not a drug dependant and regularly
J taking dangerous drugs, why would he keep as much as half of the J
dangerous drugs he had bought for self-use. I do not accept that as much as
K K
half would be for self-use, although I accept that he might use some of the
L L
drugs for himself. It would be difficult to differentiate what would be for
M
self-use. M
N N
7. In HKSAR v Chow Chun Sang, CACC 135/2011, Hon Yeung
O VP, in delivering the judgment of the Court, said :- O
P P
“19. We are of the view that in drug trafficking cases, when
all or part of the drugs are intended for the trafficker’s own
Q consumption, the ensuing discount to sentence should, Q
depending on the circumstances, fall somewhere between 10%
R
and 25% of the basic starting point. In determining the extent of R
the discount in a particular case, the court should have regard
to factors including the total quantities of drugs involved,
S proportion of the drugs intended for self-use, the nature of the S
drugs, whether the drug trafficking was for financial gain,
whether the trafficking was organized and premeditated, and
T T
the background and criminal record of the defendant.”
U U
V V
- 5 -
A A
B B
C
8. The sentence follows the quantity of drugs. That would put C
the quantity in the defendant’s possession for trafficking at the material
D D
time to be 4.25 grammes of methamphetamine hydrochloride, namely ice.
E
This would warrant a starting point of 4 ½ years imprisonment. E
F F
9. I have taken into account that the defendant is an occasional
G drug user and that some of the drugs would have been for his own G
consumption. There was no direct evidence of sale of any drugs. I have
H H
also borne in mind the latent risk of the drugs for self-consumption falling
I into the wrong hands. The quantity of drugs in not insubstantial. Two of I
the three mobile phones found on him was for drug users to contact him to
J J
buy dangerous drugs from him. He had a spoon to separate the dangerous
K drugs, electronic scales to weigh the dangerous drugs and empty resealable K
plastic bags to pack the dangerous drugs for sale – clearly, the trafficking
L L
was organized and premeditated, and for financial gain. He has a criminal
M history, including for drugs related offences. M
N N
10. Looking at those features of the case, I have decided that the
O appropriate starting point for this offence is one of 4 years’ imprisonment. O
P P
11. The defendant has pleaded guilty and he is entitled to a
Q discount of one-third to reflect that. That is the only mitigation of weight Q
before me. Giving the defendant full credit for his plea, which in my view
R R
S S
T T
U U
V V
- 6 -
A A
B is the only mitigation of weight before me, the defendant is sentenced to 2 B
years and 8 months’ imprisonment.
C C
D D
E E
F F
（ Bina Chainrai ）
G G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B DCCC 429/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 429 OF 2012
E E
--------------------
F HKSAR F
v
G G
TAM Man-to
H -------------------- H
I I
Before: Deputy District Judge Chainrai
J Date: 10 July 2012 J
Present: Mr Alvin Chui, PP of the Department of Justice, for HKSAR
K K
Mr Yeung Kam Yuen Roderick, of Yeung & Chan, assigned
L L
by the Director of Legal Aid, for the defendant
M
Offence: Trafficking in a dangerous drug (販運危險藥物) M
N N
------------------------------------
REASONS FOR SENTENCE
O O
------------------------------------------
P P
1. The defendant has pleaded guilty to an offence of trafficking
Q in 4.46 grammes of a crystalline solid containing 4.25 grammes of Q
methamphetamine hydrochloride, namely ice, contrary to sections 4(1)(a)
R R
and (3) of the Dangerous Drugs Ordinance, Cap 134.
S S
T
2. Facts admitted by the defendant disclose that at around 7.40 T
th
p.m. on 10 March, 2012, police officers patrolling at 15 floor, Tin Mei
U U
V V
- 2 -
A A
B House, Tin Ping Estate, Sheung Shui, saw the defendant walking out of his B
home towards the rear staircase in a furtive manner. He was intercepted at
C C
the staircase for inquiry. Upon search, a plastic bag containing 6 packets
D containing the dangerous drugs the subject matter of the present charge, as D
well as a plastic spoon an electronic scale and a plastic bag containing
E E
some empty resealable plastic bags were found from the defendant’s right
F front jacket pocket. 3 mobile phones were found from his left front jacket F
pocket. The defendant was arrested and cautioned and said under caution
G G
that he intended to hide the ‘ice’ and he would take it out for sale to others
H upon request. In a subsequent video recorded interview under caution, he H
said he had purchased the dangerous drugs in question at around 4 to 5 p.m.
I I
on 10 March, 2012 for HK$2,000. He sold the dangerous drugs to
J customers who would call him to order the drugs, and after he received J
payment, he would instruct his customer to pick up the drugs from a
K K
designated hiding place. He sold the drugs at HK$3-400 per gramme. The
L L
plastic spoon found was for separating the dangerous drugs and the
M
electronic scale was for weighing the dangerous drugs, while the empty M
resealable plastic bags were for packing the dangerous drugs. Two of the
N N
three mobile phones found from him were for receiving calls from
O customers who wanted to buy dangerous drugs from him. The estimated O
street value of the dangerous drugs seized was HK$4,307.00. The
P P
dangerous drugs seized was examined by a government chemist and
Q confirmed to be a total of 4.46 grammes of a crystalline solid containing Q
4.25 grammes of methamphetamine hydrochloride.
R R
3. As Mr Yeung, counsel for the defendant rightly said, the tariff
S S
for trafficking in “ice” was laid down in AG v Ching Kwok Hung [1991] 2
T HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004 T
U U
V V
- 3 -
A A
B (unreported). For trafficking up to 10 grammes of “ice”, a term of B
imprisonment of between 3 to 7 years is called for.
C C
4. The defendant is now aged 28 years. His criminal record
D D
dates back to 1998. He has 8 previous convictions in 4 court appearances.
E E
Although he has no previous convictions for trafficking in dangerous drugs,
F
he had 2 previous convictions in 2008 for possession of dangerous drugs, F
for which he was sentenced to the DATC. For his most recent convictions,
G G
which were in 2009 for offences of forgery of documents and other driving
H
offences under the Road Traffic Ordinance, Cap 374, as well as using a H
motor vehicle without third party insurance (Cap.272), he was fined for
I I
some offences and sentenced to the DATC for others.
J J
5. Although Mr Yeung had indicated that he did not take issue
K with the contents of the Antecedent Statement, which states the defendant K
is single, he submitted in mitigation that the defendant is married but
L L
separated from his wife. In my view, whether he is single or separated is of
M little consequence for offences of this nature. Mr Yeung submitted that the M
defendant’s mother, in her 50’s, was in court today to show her support for
N N
the defendant. His father is aged 65 years. Both parents depend upon
O public assistance. He has two sisters, both of whom are married. He O
worked as a delivery worker for IKEA prior to his arrest for the present
P P
offence, earning $10,000 a month. Mr Yeung submitted that the defendant
Q was not a drug dependant, although he took drugs occasionally for fun. Q
R R
6. The defendant admits that he was in possession of the drugs in
S S
question for trafficking, although in mitigation counsel for the defendant
T
submitted that a half would be for his own consumption, while half was for T
U U
V V
- 4 -
A A
B sale to others for a small profit. Counsel for the prosecution does not accept B
that some of the dangerous drugs could be for the defendant’s own use. He
C C
submits that upon his arrest, the defendant made no mention that any of the
D drugs was for self-use. Under caution at the scene, he said he was hiding D
the drugs and would take them out upon request by others for sale. In the
E E
subsequent video recorded interview under question, he again made no
F mention that any of the drugs were for self-use – he mentioned when he F
had bought the drugs and for how much, and his mode of sale and even the
G G
use of the electronic scale, the spoon, the resealable plastic bags and the
H mobile phones found upon his person upon search. Defence counsel H
submitted that the defendant was not a drug dependant, and he only took
I I
drugs occasionally for fun. If he was not a drug dependant and regularly
J taking dangerous drugs, why would he keep as much as half of the J
dangerous drugs he had bought for self-use. I do not accept that as much as
K K
half would be for self-use, although I accept that he might use some of the
L L
drugs for himself. It would be difficult to differentiate what would be for
M
self-use. M
N N
7. In HKSAR v Chow Chun Sang, CACC 135/2011, Hon Yeung
O VP, in delivering the judgment of the Court, said :- O
P P
“19. We are of the view that in drug trafficking cases, when
all or part of the drugs are intended for the trafficker’s own
Q consumption, the ensuing discount to sentence should, Q
depending on the circumstances, fall somewhere between 10%
R
and 25% of the basic starting point. In determining the extent of R
the discount in a particular case, the court should have regard
to factors including the total quantities of drugs involved,
S proportion of the drugs intended for self-use, the nature of the S
drugs, whether the drug trafficking was for financial gain,
whether the trafficking was organized and premeditated, and
T T
the background and criminal record of the defendant.”
U U
V V
- 5 -
A A
B B
C
8. The sentence follows the quantity of drugs. That would put C
the quantity in the defendant’s possession for trafficking at the material
D D
time to be 4.25 grammes of methamphetamine hydrochloride, namely ice.
E
This would warrant a starting point of 4 ½ years imprisonment. E
F F
9. I have taken into account that the defendant is an occasional
G drug user and that some of the drugs would have been for his own G
consumption. There was no direct evidence of sale of any drugs. I have
H H
also borne in mind the latent risk of the drugs for self-consumption falling
I into the wrong hands. The quantity of drugs in not insubstantial. Two of I
the three mobile phones found on him was for drug users to contact him to
J J
buy dangerous drugs from him. He had a spoon to separate the dangerous
K drugs, electronic scales to weigh the dangerous drugs and empty resealable K
plastic bags to pack the dangerous drugs for sale – clearly, the trafficking
L L
was organized and premeditated, and for financial gain. He has a criminal
M history, including for drugs related offences. M
N N
10. Looking at those features of the case, I have decided that the
O appropriate starting point for this offence is one of 4 years’ imprisonment. O
P P
11. The defendant has pleaded guilty and he is entitled to a
Q discount of one-third to reflect that. That is the only mitigation of weight Q
before me. Giving the defendant full credit for his plea, which in my view
R R
S S
T T
U U
V V
- 6 -
A A
B is the only mitigation of weight before me, the defendant is sentenced to 2 B
years and 8 months’ imprisonment.
C C
D D
E E
F F
（ Bina Chainrai ）
G G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V