HKSAR v. Ng Siu Sun

DCCC 1182/2018

[2019] HKDC 371

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1182 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 9.05 grammes of a solid containing 3.94 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by the defendant today.  In summary at 1600 hours on 28 October last year the police carried out an anti-drug operation at Pelene Mansion, No. 5, Yue Ko Street in Tin Wan.  At 1810 hours the police saw the defendant drive private car UU 9278 close to the main entrance of Pelene Mansion. 

3.At 1814 hours the police intercepted the defendant after he alighted from the car. In the right front pocket of the defendant’s trousers the police found six transparent plastic bags containing a total of forty-nine smaller transparent plastic bags inside which was the cocaine.      

4.The defendant was arrested for trafficking in dangerous drugs.  Under caution the defendant said “I received $500 to help a person to deliver the stuffs to Wanchai”. 

5.A search of the car and the defendant’s residence found nothing suspicious. 

6.The street value of the cocaine was $10,145.

Mitigation

7.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Ng together with the mitigation letters from his wife, parents, brother and cousin and Pastor Li who are all in court to support the defendant. 

8.The defendant has worked as a personal driver and a public light bus driver earning between $15,000 and $20,000 per month.  Mitigation letters from former employers, who all speak very highly of the defendant, have also been submitted to court. 

9.I take into account that the defendant has no previous convictions for drug offences and was last before the court in 2011.    

Starting point

10.The courts have equated for sentencing purposes cocaine with heroin[2].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[3].   Where the quantity of narcotic is up to 10 grammes sentence falls within the range of 2-5 years’ imprisonment. 

11.On a purely arithmetical approach a starting point of 3 years and 2 months’ imprisonment would be appropriate for trafficking in 3.94 grammes of cocaine.  Taking into account the defendant has no previous drug convictions I adopt a starting point of 3 years’ imprisonment. 

Own use

12.The defendant claims that twenty-three packets were for his own use. 

13.Mr Ng explains that the defendant agreed to buy drugs together with his friend who lives in Wanchai so as to cut the cost and reduce the risk of arrest.  After collecting the drugs from the letterbox at the entrance of his home the defendant was arrested.  The defendant intended to deliver twenty-six packets to his friend in Wanchai for which his friend would then pay him $500.  The defendant intended to take the remaining twenty-three packets home for his own consumption.   

14.Mr Ng relies on the result of a urine test which shows that in December 2018 the defendant was taking cocaine which supports what the defendant told the police in a video recorded interview that he started to smoke cocaine one or two years ago. 

15.The claim is contrary to what the defendant told the police that he was delivering the drugs for a reward of $500.  At no time did the defendant tell the police part of the drugs were for his own consumption.

16.The prosecution adopts a neutral stance but point out that nothing suspicious was found in the defendant’s residence. 

17.As indicated in court I do not accept the mere assertion that part of the cocaine was for the defendant’s own consumption.  Mr Ng having taken further instructions informs the court that the defendant does not wish to give evidence in support of his claim that part of the cocaine was for his own consumption. 

18.Notwithstanding the defendant may be a consumer of cocaine I reject the defendant’s assertion part of the drugs were for his own consumption.  I proceed on the basis that all the cocaine was for trafficking.  

19.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years’ imprisonment.