HKSAR v. Ng Ping Fat

CACC 371/2017

[2018] HKCA 715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 371 OF 2017

(ON APPEAL FROM HCCC NO 256 OF 2017)

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Before: Hon Zervos JA in Court

Date of Hearing: 16 October 2018

Date of Judgment: 16 October 2018

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J U D G M E N T

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1.On 25 October 2017, D’Almada Remedios J (the judge) sentenced the applicant to 6 years’ imprisonment for trafficking in dangerous drugs, namely 72.4 grammes of heroin hydrochloride and 289 tablets and 22 tablet fragments containing 4.1 grammes of midazolam. He had previously pleaded guilty to the offence in the Magistrate’s Court. He admitted that on 16 December 2016 he tried to smuggle the drugs into Hong Kong from mainland China. He said he was asked to deliver the drugs for a reward of $1,800 by a person whom he knew as “Ah Sun”, but had no means of contacting him. He met an unknown person at a hotel in Shenzhen who gave him a white plastic bag containing the drugs to deliver. The street value of the drugs at the time of the offence was $66,600.

2.The applicant was born in mainland China and came to Hong Kong when he was young.  He was 64 years of age and unemployed at the time of the offence.  He is married with 3 children.  It was claimed in mitigation that he was a heavy drug user and that a small amount of drugs was for his own consumption.  It was further claimed that he was cooperative when he was arrested and while in prison custody he was attending church gatherings in an effort to turn over a new leaf and rid himself of his drug addiction.

3.The applicant has a criminal record consisting of 16 previous convictions for violence and drugs dating back to April 1975. In December 1980, he was sentenced to 8 years’ imprisonment for robbery.  His last 8 convictions were for drug offences.  He was convicted for possession of dangerous drugs in January 1988, June 1988, September 1994, for which he was ordered to attend a drug addiction treatment centre, and November 1995 when he was also convicted for trafficking of dangerous drugs for which he was sentenced to a total term of 10 years’ imprisonment.  In September 2003, following his conviction of two offences of trafficking in dangerous drugs, he was sentenced to a total of 6 years’ imprisonment.  Prior to the present offence, in March 2011 following his conviction for trafficking in dangerous drugs, he was sentenced to 5 years and 2 months’ imprisonment. 

4.The judge applying the guideline case of HKSAR v Lau Tak Ming [1990] 2 HKLR 370 adopted a starting point of 8 years and 6 months’ imprisonment which she enhanced by 3 months to reflect the international element involved in the case and by a further 3 months to reflect that he was a persistent offender with four previous occasions when he was convicted of trafficking in dangerous drugs.  This brought the starting point to 9 years’ imprisonment which she reduced by one third for the applicant’s guilty plea to 6 years’ imprisonment.

5.The quantity of heroin narcotic of 72.4 grammes falls within the band of between 50 and 200 grammes which corresponds to 8 to 12 years’ imprisonment.  On an arithmetic calculation, the starting point is 8 years and 7 months’ imprisonment.  Hence, the judge could have adopted a starting point greater by one month.

6.The judge, following HKSAR v Wong Kam Wo [2001] 2 HKLRD 290, did not further adjust the sentence for the small quantity of midazolam because it would have had little, if any, bearing on the overall sentence.  She rightly, in my view, refused to make any allowance that some of the drugs were for self-consumption as the basis of his plea was that he was making a delivery of the drugs for reward.  The whole of the drugs were contained in a white plastic bag for this purpose.

7.The applicant complains that his sentence was too severe.  He submits that there was no international element and he should not have received an enhancement to his sentence for his previous offences for drug trafficking.  The sentence imposed was in line with authority in relation to both the starting point and the enhancements.  He should consider himself fortunate that the enhancement for his previous offending was not higher, given the number of prior convictions for this grievous offence.  See HKSAR v Yeung Kam Tung, CACC 427/2012, 19 March 2013, unreported.  The enhancement for the international element could have also been higher.  See HKSAR v Abadallah Anwar [2009] 2 HKLRD 437.  He therefore has no cause for complaint about the sentence that was imposed on him.

8.It follows from what I have said that the application for leave to appeal against sentence is refused. 

9.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Mr David Chan, SADPP (Ag) of the Department of Justice, for the respondent

The applicant appeared in person