HKSAR v. Tong Ngai Pan

DCCC 139/2018

[2018] HKDC 1622

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 139 OF 2018

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REASONS FOR SENTENCE

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1.In this case the defendant, Tong Ngai Pan upon his plea and admission of facts is convicted of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance.

2.The facts revealed that on 14 December 2017 the defendant was intercepted in Tung Yuen Street Car Park after he had alighted from a taxi. Upon a body search by the police officer, a total of 22 bags of cocaine and a small wrapped packet of ketamine were found on his person.  The 22 bags of cocaine contained a total of 8.94 grammes of a solid of which 8.4 grammes was cocaine.  The quantity of the ketamine was confirmed to be 0.92 grammes.  In addition, the police found in the defendant’s person four mobile phones and five SIM cards and, a total cash in the sum of $12,795.50.  The estimated street value of the cocaine was $10,340.40.

3.The defendant was charged with trafficking the cocaine.  Under caution he admitted to possession of the same.

4.In respect of the trafficking in cocaine, there is a very clear line of authorities.  The combined effect of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 and the case of R v Lau Tak Ming & Others [1990] 2 HKLR 370 means that the total quantity in the present case falls into the bracket of up to 10 grammes warranting a term of imprisonment of 3 to 5 years.

5.In this case I take into account of the fact that there were four smartphones, five SIM cards found on the defendant’s person, a large quantity of cash, and that there were a total of 22 bags of cocaine.  I considered that there is evidence to suggest, and I so found, the defendant was personally involved in the retailing of the dangerous drugs.  The facts alluded to therefore are more serious than the normal cases of people having a large bag of dangerous drugs.  Having considered the facts as a whole, I considered a starting point of 54 months is appropriate in the circumstances.

6.In respect of the possession of ketamine, normally the court ought to consider the option of a DATC order.  However, the defendant in the present case is also charged with a DDUT which definitely would involve a term of imprisonment exceeding 9 months.  I do not consider this option viable in the present set of circumstances.  For the possession charge there are authorities that suggest that the term of imprisonment is up to 12 months.  As there was only bag involved in this case, I consider that 6 months is an appropriate starting point.

7.I then consider the mitigating factors in the present case.  The defendant is aged 29, but he had a total of three previous convictions involving four charges, two of which were related to the possession of dangerous drugs.  The first charge conviction involving dangerous drugs, it was in 2008 where he was sentenced to a Rehabilitation Order.  He committed similar offence again in 2012 and was sentenced to DATC.  Therefore, in view of his age and his previous convictions, there is no reason for this court to exercise additional clemency in his favour.

8.I also take into consideration of the mitigation submissions and also the letters by his siblings.  Both his younger sister and younger brother wrote favourably of him.  He had been responsible for taking care of the parents full-time.  However, in respect of the sentencing for trafficking in a dangerous drug, the sentencing principle is one of deterrence.  The fact that the defendant had been a dutiful son is not a significant factor in mitigation as the idea of the sentencing order is to deter others from committing similar offences.  Therefore, the only valid mitigating factor in the present case is the fact that he pleaded guilty.  As in line with the existing authorities, I would reduce his sentence by one-third.  Therefore, in respect of the 1st charge, the defendant’s sentence is reduced to 36 months.  In respect of the 2nd charge, it is therefore reduced to 4 months. 

9.I take into consideration also of the totality principle and also as an act of clemency, I order 2 months of the 2nd charge to run consecutive to that of the 1st charge.  Therefore, in respect of the present case, the defendant is hereby sentenced to a total of 38 months.

10.I have reconsidered the defence’s submission and the background submitted by the prosecution.  I do not find any valid reason for not ordering the sentence to run immediately.  Therefore, the defendant is sentenced to a total of 38 months’ imprisonment to take effect immediately.