HKSAR v. Ng Ka Yee

HCCC 493/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 493 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

You pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 16 December, before the Eastern Magistrates Court and you have been committed to this court for sentence.

The offence to which you pleaded was in respect of 20.99 grammes of methamphetamine hydrochloride, or ‘Ice’ as it is commonly called and 1.34 grammes of cocaine.

You have agreed the Summary of Facts today which forms the basis of your plea. That is, that on 24 February of last year, you were stopped outside Room D, on the 2nd Floor of 51-53 Tung Choi Street, in Mong Kok, and you were at that time with a male companion who was holding a blue snack can which you say belongs to you. We can see what was inside that snack can by looking at the photograph bundle. There were several bags containing clear plastic bags with ‘Ice’ and with cocaine plus a bottle for consuming it. There were also two mobile phones, an electronic scale and $6,460 recovered, and some more clear plastic bags which you had.

Whilst you remained silent upon arrest and caution, as is your right, under interview, you said that the can and its contents belonged to you and not to the male and that it was for your own consumption and that you were unemployed. As for the drugs, you initially said you had purchased them but you could not say how much or from whom. And later, you changed your story and said that you had been given them.

By your plea before the magistracy, you now accept that you were trafficking in dangerous drugs. The retail value of those drugs on the street at the time was $6,578 for the ‘Ice’ and $1,567 for the cocaine.

I do take into account what has been said on your behalf by Ms Ma, but it is not to your credit, Ms Ng. You are now single, 38 years of age and unemployed. You were married for six years and are now divorced, having allowed your ex-husband to raise your only child, your son who is now 16. Perhaps that is just as well because you have made very little of your life since that date. You say you were supported by your ex-husband for two years and then by a boyfriend who was a cook. You also say that you worked in a mah-jong establishment, but I note that, in interview, you said that you made money by playing there. One or other version of those events, or both, is untrue, Ms Ng.

In any event, it is about this time that you started to become dependent, you say, on drugs and I do not accept that you could have been in a position to have had any savings at all. If that is the case, then your drug habit of 0.5 grammes per day must come from some other source. Either you were given drugs for free for trafficking for others, or you buy in bulk, consume some and traffic the rest. I do not know and I have given you the opportunity to give evidence and explain your addiction to the dangerous drugs and how it is you can support yourself, but you have declined that offer.

What is said to the court through Ms Ma is a bare assertion and as such, I do not accept it. You appear to be making a living by gambling, as you suggested in your interview, and by trafficking in dangerous drugs. Surprisingly, you were of good character at 38 years of age and I will take that good character into account.

The trafficking of ‘Ice’, Ms Ng, falls to be considered under the guideline case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For between 10 and 70 grammes of ‘Ice’, the starting point after trial is in the range of 7 to 11 years. So for 20.99 grammes, the starting point after trial would be 7 years and 8 months.

Trafficking in cocaine falls to be considered under the guidelines in HKSAR v Lau Tak Ming [1990] 2 HKLR 370 and for trafficking in up to 10 grammes of cocaine, the sentencing range is 2 to 5 years. One can see from that, that 10 grammes of ‘Ice’ would attract a greater sentence than the equivalent 10 grammes of cocaine. The starting point after trial for 1.34 grammes of cocaine would be in the region of 1 year to 1 year 6 months, which would then have made a total sentence to you of 9 years and 2 months.

However, if I were to add the 1.34 grammes of cocaine to the ‘Ice’, then the total amount of 21.33 grammes would still have attracted a similar sentence to the one that you would receive on 20.99 grammes, even though, normally ‘Ice’ attracts a greater sentence than cocaine. So in this case, I consider that it is just, and to your benefit, for me to calculate the total quantity of dangerous drugs recovered under the guidelines in Tam Yi Chun and make the starting point after trial just 7 years and 9 months.

As for your assertion of self-consumption, you were also provided with an opportunity to address the court on your consumption of dangerous drugs in order to mitigate the amount which the court falls to sentence you for, but you declined that invitation. Whilst I accept that you consume drugs, the manner in which these drugs were contained on the evening in question, the items which went with them and the way that the wallet of money was recovered, all suggest that this was a trafficking exercise and nothing more. Therefore, I will not reduce the amount you were trafficking by any further figure.

The trafficking of dangerous drugs is a very serious offence and deterrence is therefore an overwhelming consideration, and whilst I have heard some of your personal circumstances, in the face of such a serious offence there is nothing else which has been said on your behalf which can reduce the sentence further.

I will give you the one-third discount for entering an early plea which is to your credit, and the sentence I pass upon you today is one of 5 years and 2 months’ imprisonment.