HKSAR v. Ng Pak Ling

HCCC 71/2018

[2018] HKCFI 2199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 71 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before me to one charge of trafficking in a dangerous drug. In sentencing, I have considered the whole circumstances of the case, paying particular regards to the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.

The facts which defendant admitted may be summarized as follows.

On 6 July 2017, the defendant was stopped by police officer when he was standing at the lift lobby of his residential building in Mong Kok. Upon search of the rucksack he was holding, two plastic bags each containing ‘Ice’ were found. The total quantity was 28.19 grammes of a crystalline solid containing 26.55 grammes of methamphetamine hydrochloride.

Under caution, the defendant said the ‘Ice’ was for his own consumption and he consumed slightly more than one gramme of dangerous drug every day. No ‘Ice’ bottle was found at his home.

I was told that the defendant is 33 years old, he is married and has a son now 7 years old. He lived with his family at a flat in Tung Chung. He was educated up to Form 5 and had worked in a theatre responsible for backstage lighting and in a kitchen. At the time of arrest, he was working in a logistic company earning about $24,000 a month. He is married to a mainland woman but they have not seen each other for some time since she had given birth to a child of another man.

The defendant is not a first time offender. He had been convicted on six previous occasions. The last conviction was in 2016 for trafficking in dangerous drugs. He was sentenced to 4 years’ imprisonment and discharged on 25 April 2017. In 2013, he was also convicted for trafficking in dangerous drugs for which he was sentenced to 10 months’ imprisonment. He was convicted of possession of dangerous drug in 2002 and 2013. The other offences he had committed, he had been convicted with procuring with intent to commit crime, blackmail and common assault.

In mitigation, learned counsel for the defence, Ms Tsang, informed the court that the defendant had been addicted in ‘Ice’ since 2002. He started the habit when he was working in a theatre. Since he had to work at night and also under the influence of bad culture amongst colleagues, he started the habit. He had tried to get rid of it but when he heard the news of his wife giving birth to a child of another man, he was upset and relapsed to the habit. The son of the defendant is now being looked after by his parents and he gave about $10,000 each month to them.

Ms Tsang asserted that this time the defendant intended to keep about half of the quantity for his own consumption and share the rest with a friend not for the purpose of gaining a profit. Ms Tsang said it is the first time the defendant’s son came to realize of the wrongdoing of him. Upon reflection, the defendant is now determined to turn over a new leaf. The defence produced a letter of the defendant in which he expressed remorse as well as a note written by his son.

The dangerous drug which the defendant had trafficked in was ‘Ice’. The total narcotic content was 26.55 grammes. The tariff as set out in HKSAR v Tam Yi Chun, CACC 529/2011 is applicable. In that case the Court of Appeal held that if the narcotic content is between 10 to 70 grammes, the sentence to be considered is 7 to 11 years’ imprisonment. In all the circumstances I see no reason to depart from the tariff. By reference to the quantity of the dangerous drug seized, which is the most important factor in consideration of the sentence, a starting point slightly above 8 years would have been appropriate.

Though it was asserted that the defendant was only going to share the dangerous drug with friends without making a profit and there is no firm evidence to rebut this assertion, having regard to what was said in HKSAR v Wong Suet Hau [2002] 2 HKLRD 1121, I do not consider a lower starting point is justified.

I have to take into account that this is the third time the defendant committed the offence of trafficking in dangerous drug and he committed it in less than 3 months after he had been discharged from prison. For this reason, I am of the view that the starting point should be enhanced by 6 months.

The defendant claimed that a substantial quantity of the dangerous drug seized was intended for his own consumption. In this connection, I have regards to HKSAR v Wong Suet Hau and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872 as well as the following matters.

The circumstances in which the defendant was intercepted, the drug was found in possession of the defendant at a place in Mong Kok and not near his place of residence, no consumption paraphernalia was found at his home and it was asserted that he used disposable consumption equipment each time to avoid his son having a chance of contacting the harmful items, his first response when the drug was found, the defendant’s previous record and the urine test conducted upon the defendant arrest is showed methamphetamine in his urine, as well as the means of the defendant. I have indicated my reservation about accepting such a substantial quantity of drug was intended to be reserved for self-consumption and the defendant indicated that he would not testify on this aspect.

In all the circumstances, I am prepared to accept that quite a proportion of the dangerous drugs seized would be intended for his own consumption, but not as much as half of the quantity. However, at the same time my assessment is that the latent risk was very high. Moreover, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed having regard to the quantity asserted. In any case, even if the quantity for the purpose of trafficking was as low as half the quantity seized, a starting point of over 7 years would have been called for.

Having taking into account the above factors and having regard to the case of HKSAR v Tam Ling Yuen, CACC 159/2015 and the more recent Court of Appeal decision in HKSAR v Yeung Shek Yung, CACC 314/2016, taking into account the aggravating features I have mentioned earlier, I adopt an ultimate starting point of 8 years.

The defendant pleaded guilty before me only after the case have been set down for trial. Having regard to HKSAR v Ngo Van Nam, CACC 418/2014 and every thing ably said on the defendant’s behalf, I will give the defendant a discount of 25 per cent.

For the reasons I have said, I sentence you to an imprisonment term of 6 years.