HKSAR v. David Ng

DCCC 754/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 754 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of “Trafficking in dangerous drugs” and another charge of “Possession of Part I poison”. The dangerous drugs involved are 29.3g of ketamine, 9.43g of methamphetamine hydrochloride, commonly known as “ice” and 8.14g of cocaine, while the Part I poison is 22 tablets of Phenazepam.

Summary of facts

2.About 2:56 am on 27 May 2016, at To Gwa Wan Road near Lo Shan Road, the defendant was found stopping his private vehicle bearing registration number TN 1422 stopping at traffic green light with his eye closed.  Having been waken up and asked to step out from the vehicle by the police officers, the defendant was observed to have responded slowly.  Upon search of the vehicle, there were found inside the armrest on the left of the driver’s seat 23 transparent resealable bags containing a total of 29.3g of Ketamine and 5 transparent resealable bags containing a total of 9.43g of “ice”.  Further search revealed a blue box inside the said armrest containing 45 resealable bags of 8.14g of cocaine and 22 tablets of Phenazepam.

3.Under caution at scene and in subsequent video recorded interview, the defendant stated that all the dangerous drugs were for his own consumption and he did not need to take them in multiple occasions if he carry them in bulk.  He would use his Samsung mobile phone to contact seller of the dangerous drugs and he was addicted to Ketamine.

4.At the time of the arrest, the defendant had altogether 3 mobile phones and cash of HK$26,003.

5.The estimated street value of the dangerous drugs were about HK$21,383.

6.The defendant now admits that he possessed the dangerous drugs for the purpose of unlawful trafficking.

Mitigation

7.The defendant is 35 years old and single.  He had three previous criminal records, all relating to possession of dangerous drugs respectively in 2003, 2011 and 2014.  He was lastly sentenced to DATC.  Defence solicitor Mr Tang informed me that at the time of his arrest, the defendant was a casual car cleaner earning about $400 per day.  He resides with his mother at a public housing estate.

8.In his written submissions, Mr Tang said the defendant has just obtained his $16,000 salary and went to To Gwa Wan to purchase the dangerous drug at a bulk price of $15,000 at the material times.  The dangerous drug was purchased for the defendant’s own consumption and he would also share with his friends.

9.It was also mitigated that the defendant fell asleep at the time of interception due to the long working hours on that day.

Sentence

10.The Court of Appeal has laid down clear sentencing guidelines for trafficking in various dangerous drugs.  For 10 to 50 grammes of ketamine, the sentence ranges from 4 to 6 years’ imprisonment after trial[1]. Trafficking in up to 10 grammes of cocaine carries a sentence of 2 to 5 years’ imprisonment: see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others [1990] 2 HKLR 370.  Trafficking in up to 10 grammes of ice carries a sentence of 3 to 7 years: see HKSAR Tam Yi Chun [2014] 3 HKLRD 691.

Respective tariff

11.In view of the respective tariffs for trafficking in ketamine, cocaine and ice, trafficking in 29.3g of ketamine will attract a starting point of 5 years ie 60 months imprisonment, and 8.14g cocaine of about 50 months, and 9.43g of ice of about 80 months’ imprisonment.  However, the overall starting point is not to be achieved by just adding up all starting points, otherwise, the overall starting point will be manifestly excessive.

Overall starting point

12.In determining the proper overall starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003, HKSAR v Cheng Yat Ming CACC 455/2006 and HKSAR v Chan Yuk Leong CACC  318/2013.

13.The Court of Appeal in HKSAR v Chan Yuk Leong CACC 318/2013, by reference to previous decided cases, has provided three means of cross-checking the appropriateness of the overall starting point in case of a trafficking involving different types of dangerous drugs:-

(i) The first means is called the “absurdity test”. In the present case, assuming the whole quantity of drugs seized (46.87 grammes) contained only the most serious drug, ie, ice, the starting point would have been about 110 months’ imprisonment.

(ii) The second means is called the “conversion test”. In the present case, I note that the sentence for trafficking in 29.3 grammes of ketamine would be similar to the sentence for trafficking about 6 grammes of “ice”. And sentence for trafficking in 8.14 grammes of cocaine would be similar to the sentence for trafficking about 5 grammes of ice. If one were to add the converted quantities (5g + 6g of ice) to the 9.43 grammes of ice seized, one would arrive at a total of about 20.43 grammes of ice. Applying the sentencing guidelines Ching Kwok Hung and Tam Yi Chun tariffs, one would arrive at a sentence of about 90 months’ imprisonment.

(iii) The third means is called the “ratio test”. Applying this test, on the basis that the ice seized accounted for about 20% of the total quantity seized and that the ketamine accounted for about 60%, the overall starting point would be about 58 months.

Dangerous drug	Sentence assuming 46.87 g of a single drug	Ratio	Sentence
Ice	110 months	0.2	22 months
ketamine	70 months	0.6	42 months
cocaine	90 months	0.2	18 months
		Total	82 months

14.The Court of Appeal in the case HKSAR v Chan Yuk Leong CACC 318 of 2013 observed that the fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.  One aggravating feature is the ability of the trafficker to cater to a wider market.  More important is the effect on users of combinations of dangerous drugs.

15.In HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, the Court of Appeal held that where the “combined approach” is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point.  For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point.

16.In the present case, I am of the view that the “combined approach” would arrive at a realistic and fair sentence.  In terms of either potency or quantity, 9.43 grammes of ice should form the basis of the starting point.  Hence, I adopt a basic starting point of 80 months’ imprisonment and adjust it upward by 6 months for the quantity of 29.3g of ketamine and 8.14g of cocaine found in the present case, arriving at 86 months’ imprisonment.

Self-consumption

17.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[2]. The defendant said that he has been a drug addict for 10 years and has been taking Ketamine.  He also claimed to have started to take ice and cocaine.  Given the result of the urine test submitted by defence and the previous criminal records, I am prepared to give 15% discount for his self consumption and reduce the sentence to 72 months[3].

18.A one-third discount is given for the guilty plea, reducing the sentence further to 48 months.  Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 48 months' imprisonment for the count of trafficking in dangerous drugs.

19.Regarding the count of possession of part I poison, I take a starting point of 6 months imprisonment and give a full one third discount for his guilty plea.  The final 4 months’ imprisonment will run wholly concurrently with the 48 months’ imprisonment imposed for the trafficking count, given the totally principle.  The defendant is sentenced to 4 years’ imprisonment in total accordingly.