HKSAR v. Ngo Kin Chung

DCCC 299/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 299 OF 2016

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Reasons for Sentence

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1.The defendant has been convicted after trial of one offence of trafficking in a dangerous drug.

2.The facts are straightforward and can be found in my reasons for verdict.  A very simple summary is that this involved a stop and search of the defendant’s vehicle and the defendant, where the total narcotic was found in the defendant’s possession.  We are concerned with 13 grammes of the narcotic cocaine contained in 71 packets.  At the time, the defendant said the drugs were for his own consumption.

3.The defendant is aged 39.  He is a decoration worker and works as a foreman at present.  He has been married, with two children; divorced in 2007; currently living with his girlfriend in his home in Luk Mei Tsuen.

4.The defendant has a number of previous convictions:  seven previous appearances in court.  He has two previous appearances in court for possession of dangerous drugs, both of which led to sentences of imprisonment.

5.The defendant identified his addiction starting in around 2002.  He was convicted in that year of possession of dangerous drugs, and served a sentence of 5 months’ imprisonment.  Since then, he was also imprisoned for possession of an offensive weapon at the same time.  He has since then received sentences of imprisonment in 2008 for theft and common assault, and finally, in 2014, for possession of a dangerous drug, he was sentenced to 8 months’ imprisonment.

6.The defendant, despite his consumption of drugs, has maintained employment.  At the time of his arrest he was working for Sun Pine Construction, where he is a well-regarded worker.

7.I now turn to the question of sentence.  The defendant is convicted, after trial, of trafficking in a total of 13 grammes of cocaine.  The starting point for sentence is governed by guideline sentencing, and in cases of trafficking in cocaine, the same guideline as applicable to the trafficking in heroin applies, and that is set out in the case of Lau Tak Ming.

8.In this case, it is common ground that the quantity of cocaine in question means that the defendant falls within the band of between 10 to 50 grammes, which would involve a starting point of sentence of between 5 to 8 years’ imprisonment.  By a simple calculation of quantity, the defendant would lie at the lower end or the lowest end of that tariff or band.

9.I also bear in mind that the defendant is aged 39 and this is his first offence of trafficking.  I have decided it is appropriate to take the starting point for sentence at the lowest point.  That is 5 years’ imprisonment.

10.There are no other aggravating factors.  There is, however, a mitigating factor that has been argued that would allow for a further reduction in sentence.  It is said the defendant is a long-term addict to the drug; that at the time of his arrest, he said he would consume the drug; and that the defendant would, in fact, consume a portion of the drug.  Where that is a significant portion, a further reduction in sentence can be made to allow for that, and such deduction can range between 10 to 25 per cent of the original starting point.

11.The defendant has given evidence about his consumption of the drug, and it would appear from his evidence about that that he is a long-term consumer and has I think what could be described as a significant consumption habit.

12.In support of this is the fact that on admission to the custody of Correctional Services Department, the defendant was found to have cocaine in his system, and also, the defendant has previous convictions on two occasions for possession of dangerous drugs.  I think it is fair to accept the defendant’s evidence that he was a consumer of the drug and would have consumed at least a part of it.

13.I consider a factual basis exists within the evidence to allow this as a mitigating factor.  What I shall do, rather than indicating a percentage, is to indicate a figure by which the starting point for sentence will be reduced.  I think it should lie somewhere between the 10 to 15 per cent value.

14.The original starting point for sentence is 5 years’ imprisonment, which is 60 months.  I will reduce that by a further 9 months of imprisonment to allow for the defendant’s consumption of at least part of the drug.

15.This results in a final sentence of 51 months’ imprisonment, or 4 years and 3 months’ imprisonment.