HKSAR v. Hui Duin Ngan

DCCC 15/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 15 OF 2017

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REASONS FOR SENTENCE

1.Hui Duin Ngan you have pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary on 28 September last year you were intercepted by the police as you were about to leave No 60. Cheung Sha Wan Road. Inside your white handbag PC 10448 found sixteen re-sealable plastic bags containing a total of 3.07 grammes of a solid containing 2.36 grammes of cocaine (charge 1).

3.Later the same day a search was conducted of your residence at Room C on the 2nd floor of No. 60 Cheung Sha Wan Road.  During the search the police found on a table:

(i) two transparent plastic bags containing a total of 1.88 grammes of a crystalline solid containing 1.76 grammes of methamphetamine hydrochloride (‘ice’);

(ii) a tray containing 0.01 gramme of a powder containing cocaine; one re-sealable plastic bag containing 0.61 gramme of herbal cannabis; and four re-sealable plastic bags containing a total of 14.2 grammes of a solid containing 9.10 grammes of cocaine;

(iii) a tray containing 7.55 grammes of a solid containing 6.19 grammes of cocaine; and

(iv) a tray with traces of cocaine.

4.The police also found one electronic scale and 190 re-sealable plastic bags.

Mitigation

5.In passing sentence, I have carefully considered everything said on your behalf by Mr Ng, including that you started to sell dangerous drugs to pay for the medical expenses of your father. Sadly, while on remand your father has passed away. 

6.I have read your mitigation letter and note your recent support for the organ donation registration scheme.  I take into account you have no previous convictions for trafficking in drugs.

7.I am told that you have been taking ice since you were 20[2].  This is consistent with your criminal record having been convicted of possession of drugs in 1998.  

8.You say that the ice found in your residence was for your own use.  Although I have some reservations about this claim, taking into account your previous conviction; your addiction to ice; you told the police you had been taking ice since you were 20 and that the quantity of ice is much less than that of cocaine, I am prepared to accept that the ice may have been for your own use.   

Starting point

9.The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.   Where the quantity of narcotic is up to 10 grammes the sentence upon conviction after trial is between 2 and 5 years and where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years[4].   

10.Taking into account this is your first conviction for trafficking I am satisfied the proper starting point after trial for 2.36 grammes of cocaine is 2 years and 3 months’ imprisonment.  Giving you full credit for your plea of guilty reduces the sentence on charge 1 to 1 year and 6 months’ imprisonment. 

11.Charge 2 concerns three different drugs, cocaine, ice, and cannabis. 

Cocaine

12.I am satisfied the proper starting point after trial for 15.30 grammes of cocaine is 5 years and 3 months’ imprisonment.

Ice

13.Accepting the ice may have been for your own use the approach to be taken is that found in HKSAR v To Chu Kong[5].  Had a charge of possession of ice been preferred, absent a recommendation for treatment in the DATC, a starting point of not less than 12 months would have been appropriate for possession of 1.76 grammes of ice[6].

14.To enhance the starting point by 12 months would however in my view be excessive.  I am satisfied that 3 months is to be added making a starting point of 5 years and 6 months’ imprisonment. 

Cannabis

15.In determining the starting point I disregard the small quantity of herbal cannabis, which I am satisfied does not add to the overall criminality of the charge.

16.Giving you full credit for your plea of guilty reduces the sentence to 3 years and 8 months’ imprisonment. 

Totality

17.I accept the cocaine found on you when leaving your home was part of the same cache of cocaine found in your home.  In the circumstances I am satisfied a total sentence of 3 years and 10 months’imprisonment properly reflects your criminal culpability on the charges.

18.You are convicted and sentenced as follows:

Charge 1 - 1 year and 6 months’ imprisonment; and

Charge 2 - 3 years and 8 months’ imprisonment, 2 years and 4 months consecutive and 1 year and 4 months concurrent to charge 1.

Total sentence to be served by you is 3 years and 10 months’ imprisonment.

Suspended sentence

19.Your conviction places you in breach of a suspended sentence of 6 months’ imprisonment suspended for 2 years imposed on 2 March 2015 for an offence of shoplifting. Notwithstanding just over 18 months of the suspension had lapsed and the offence is of an entirely different nature, I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence.  Considering totality of sentence, I am however satisfied that it would be just to activate only 2 months consecutive and 4 months concurrent making a total sentence to be served by you of 4 years’ imprisonment.