HKSAR v. Ng Ho Fung

DCCC 931/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 931 OF 2015

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Summary of facts

2.Police entered Room 506, Shek Yan House, Shek Lei (II) Estate upon the execution of a search warrant at about 8pm on 7^th August 2015.

3.The defendant, a Hung Man Yee and her 14 year old daughter and Hung’s 15 year old godson were playing mah-jong inside the unit.

4.Upon search, one re-sealable plastic bag containing ketamine was found from the the right rear pocket of the shorts the defendant was wearing. He also had on him $1,050 cash and two mobile phones. The defendant was arrested and cautioned for trafficking in dangerous drugs. Under caution, the defendant admitted that the ‘K chai’ belonged to him and that he possessed it for selling as well as self-consumption.

5.Upon search of the unit, a paper bag containing an electronic scale and a re-sealable plastic bag containing 81 re-sealable plastic bags were found next to a bed inside the defendant’s room.

6.In the subsequent video recorded interview under caution, the defendant claimed that he obtained 56 grammes of ketamine from someone a few days ago. He had used 13 grammes himself and sold 13 grammes at $100 per gramme. It was later confirmed by Government Chemist that 13 grammes of the powder would contain about 4.37 grammes of ketamine (charge 1).

7.The defendant claimed that he was a drug addict and would consume 5 to 6 grammes of ketamine per day. The unit was the residence of the said Hung and the defendant had moved into two weeks ago.

8.Government Chemist confirmed that the one re-sealable plastic bag found from the defendant’s shorts contained a total of 29.5 grammes of a powder containing 9.91 grammes of ketamine (charge 2).

9.The street value of ketamine was $129 per gramme as at August 2015.

Previous convictions

10.The defendant has 13 convictions from 7 court appearances. His most recent conviction record dated 24^th August 2015 was for, among 3 other charges, possession of dangerous drugs, when he was sentenced on that charge for 8 weeks’ imprisonment.

11.The defendant was sentenced to jail earlier in that same month for assaulting and resisting a police officer. In January 2013, the defendant was convicted of taking conveyance without authority, among other offences. The defendant’s first conviction was back in 2008 when he as sentenced to the Rehabilitation Centre for the offence of possession of dangerous drugs.

12.Although the defendant has a bad record, these are his first convictions for trafficking in dangerous drugs.

Mitigation

13.The defendant is 24 years old. He worked as a casual delivery worker earning $400 per day prior to his arrest. He contributed about $3,000 to his parents. The defendant is educated up to Form 6 in Hong Kong.

14.Mr. Tam for the defendant pointed out that the defendant was fully cooperative with the police and had admitted to his offences under caution.

15.It is the defendant’s case that of the total of 14.28 grammes of ketamine content involved in the two charges, 3 grammes (21%) were for the defendant’s self-consumption. Mr. Tam submits that a discount based on the principle expounded in the case of HKSAR v Chow Chun Sang (周俊生), CACC 135/2011 should be granted.

Sentence

16.The maximum sentence for trafficking in dangerous drugs on conviction upon indictment is that of a fine of $5,000,000 and imprisonment for life.

17.The tariffs for sentence after trial for trafficking in ketamine is laid down in the case of Secretary for Justice v Hii Siew Cheng (許守城), CAAR 7/2006. For over 1 gramme to 10 grammes is 2 to 4 years’ imprisonment; and for over 10 to 50 grammes is 4 to 6 years’ imprisonment.

18.Ms. Lau for the prosecution submits that the court should sentence the defendant on the total amount of ketamine involved in both charges and impose a concurrent sentence. Mr. Tam for the defendant agrees with this submission.

Self-consumption

19.As mentioned above, the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 provides guidance to the court when sentencing the defendant who claims that part of the dangerous drugs is for his or her self-consumption:

“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 consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.”

20.Although the ketamine were found on the defendant and at the unit on the same day, the trafficking that the defendant confessed to in charge 1 took place on 24^th July 2015, that is to say, 14 days before the drugs were found.

21.I find that, given the circumstances of the offences and their commission, the final sentence should be based upon the total quantity of drugs that the defendant was trafficking in.

22.The total quantity of ketamine involved is (4.37+9.91) 14.28 grammes. Applying the tariffs, I adopt a starting point of 51 months’ imprisonment.

23.Given that the defendant had admitted to possessing the drugs for selling, given the fact that an electronic scale and 81 re-sealable plastic bags were found to be in the defendant’s possession, and given the fact that  the defendant claims that 21% of the ketamine contents was for his self-consumption, I find that a proper discount  for self-consumption is that of 20%.

24.A slightly more than 20% discount from 51 months results in 40 months’ imprisonment.

25.I find that there are no aggravating factors, and the only mitigating factor is the defendant’s guilty pleas.

26.I sentence the defendant to 27 months’ imprisonment on each of charge 1 and charge 2 and I order the sentences to be served concurrently.