HKSAR v. Ng Ying Kit

DCCC 889/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 889 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.On 26 November 2015, the defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts of the case

2.In the evening of 6 August 2015, two police officers saw the defendant emerge from his residence at Room 1110, Block C, Trend Plaza, No 2 Tuen Hop Street, Tuen Mun.  They intercepted him and found in the black plastic bag he carried in his right hand: 21 resealable plastic bags, and ten resealable plastic bags containing what was, on subsequent chemical analysis, found to be 133 grammes of a powder containing 23.4 grammes of ketamine.  Arrested and cautioned, the defendant said: “I obtained the K Chai for sale to others to earn a living.”

Mitigation

3.The defendant is 33 years of age.  Born in Hong Kong and educated to Form Three level, he has, according to the defence, worked as a decoration worker, a kitchen assistant and, finally, a transport worker at the time of his arrest, making about $11,000 to $12,000 a month.  He is single and he lives with his mother and a step-sister.  He has, prior to his current conviction, a total of three criminal records involving four offences, one of which was trafficking in a dangerous drug for which he was sentenced to 40 months’ imprisonment in December 2010.

4.In his plea in mitigation, Mr WL Kwok appearing for the defendant submits that the defendant was brought up in a broken family, his natural father having left his mother before the defendant’s birth; and his mother’s second marriage has also ended in his step-father deserting the family.  The defendant is a filial son; he provides financial support to his mother’s family.  Claiming to be a drug addict, the defendant has, according to Mr Kwok, intended to consume one of the ten packets of ketamine concerned.  Mr Kwok seeks a Drug Addiction Treatment Centre (DATC) order to enable the defendant to deal with his drug addiction, failing which Mr Kwok would ask the court to adopt a starting point of four years’ imprisonment in all the circumstances of this case.

Reasons for sentence

5.In SJ v Hii Siew Cheng[1], the Court of Appeal, in deciding the issue of guideline sentences for trafficking in ketamine, accepted and acted upon expert evidence to the following effects.  First, abuse of ketamine could lead to falls from height, drowning, and traffic accidents.  Secondly, it had adverse effects on the cardiovascular, respiratory and central nervous systems of the drug abusers.  Thirdly, it could induce psychological effects resembling schizophrenia, as well as impairment of episodic and semantic memory.  Fourthly, it had long term effects in the form of memory deficit, “flashbacks”, attention dysfunction, decreased sociability, chronic mood elevation, and severe lower urinary tract symptoms.  The Court of Appeal said: “This drug has been shown not only to be a prevalent drug in Hong Kong but also, seemingly, the most popular of all amongst those under 21 who abuse drugs.”  The guideline sentence for trafficking in 10 to 50 grammes of ketamine should be, according to the Court of Appeal, four to six years’ imprisonment. 

6.The defendant in this case has a previous record of trafficking in a dangerous drug.  Such an offence is by its nature a serious one, given that the statutory maximum sentence is imprisonment for life.  The defendant’s infringement of the law on that prior occasion could not have been a minor one: he was sentenced to a term of imprisonment in excess of three years.  In these circumstances, an order for the defendant’s detention in the DATC for rehabilitation is wholly unjustified.  Given the nature and seriousness of the defendant’s offending on this occasion, a prison sentence is inevitable.

7.The defendant’s previous records do not justify an enhancement of the starting point; the court simply cannot deal with him as if he was a person of good character.  For the quantity of narcotics concerned, a starting point of 54 months’ imprisonment is called for.  The defendant’s claim that he would use one of the ten packets of ketamine himself does not sit well with the facts that he was arrested when he was taking the ten packets of ketamine out of his own residence and that he told the police that he had intended to sale the ketamine to make a living. However, the court cannot entirely rule out the possibility that he might not be able to sell the ten packets all at once, and so he might still be able to consume one of them had there been leftovers. 

8.In all the circumstances, the appropriate starting point is one of 51 months’ imprisonment.  The defendant is entitled to one-third discount for his guilty plea.  Little in his background and the circumstances of the offence would justify any further discount.

Conclusion

9.For the offence of which the defendant stands convicted, he is sentenced to 34 months’ imprisonment.