HKSAR v. Ng Sau Keung and Another

HCCC 382/2018

[2019] HKCFI 1570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 382 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Mr Ng, you have pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 11 February 2018. That was the date of the offence. On Count 1 of the indictment, you pleaded guilty to trafficking in 52.6 grammes of methamphetamine hydrochloride. I am going to refer to that as ‘Ice’ from now on.

Ms Shu, you have also pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on the same date; that is, 11 February 2018. On Count 2 of the indictment, you pleaded guilty to trafficking in 2,426.9 grammes of ‘Ice’.

The facts which form the basis of your plea today have been read out in court by Ms Yip and you have both accepted them. In summary, you, Mr Ng, were found to be in possession of 52.6 grammes of ‘Ice’ at 4.35 am in the morning, which was concealed within a bucket containing what you told the police was to be washing. You also had upon you HK$9,390 and some renminbi and two mobile phones, even though you said you were simply going to take the clothes to be washed. You told the police where you lived and that resulted in a search which was carried out at the relevant address.

They found you, Ms Shu, inside. You were actually holding a bag of drugs when the police entered. You were seen to be sitting at a table with five transparent re-sealable plastic bags on the top of it, containing a total 70.9 grammes of ‘Ice’, as well as scales and other paraphernalia, both for the packaging of dangerous drugs and for consumption of dangerous drugs. Underneath that table the police found more drugs and yet more on the shelf by the television. Various sums of money in different currencies were recovered, including HK$76,000 found within the TV cabinet.

You too were, therefore, arrested, but, as is your right, of course, you remained silent on arrest and caution and also in interview.

Mr Ng, on the other hand, in interview denied knowledge of the ‘Ice’ in his possession or in your flat. He said the cash found upon him, a smaller amount, $9,000-odd, was from gambling.

The estimated retail value of the drugs found upon you, Mr Ng, was $28,321. The estimated retail value of the drugs found upon you, Ms Shu, was $1,336,400.

Mr Ng, you are now 58 years of age. Although you have a wife in China and, Mr Boyton suggests, you have a marital home on the Tung Tai Estate, which your parents are living in, it appears that you were living with Ms Shu at the time of the offence. Ms Chan on her behalf says that the two of you looked for this flat together because you were having an affair. You say you were working at the time as a construction worker and you would, therefore, have had a limited income which, at best, would have been HK$30,000 a month, but I suspect that that is unlikely to have been the average income that you would have earned as a construction worker.

You would also presumably be working daylight hours, so I cannot understand why you would venture out at 4.35 in the morning to wash clothes, especially as they were clearly not yours? I have read your letter and I note that you say you are remorseful. But a man of your age and experience knew exactly what he was doing. You are very lucky not to have been jointly charged with the whole amount of the drugs recovered from the flat as there was more than sufficient evidence to show you lived there and that the drugs were openly on display immediately that the officers went into the flat. Indeed, on one view of the case, you could be said to have manoeuvred the situation to have Ms Shu take up the tenancy of the flat or that, given her residency in China, that you rented this flat for your drug-running operation. And, indeed, that appears to have been made out by the mitigation of Ms Chan.

You have a criminal record, but the last matters known were some 11 years ago and your last period of imprisonment in 1994. I am not going to take any of that into account. Mr Boyton asked the court to discount the sentence I am about to pass upon you as you are a drug addict and you would have consumed some part of the dangerous drugs which were found in your possession that morning. I do not accept that. The facts suggest otherwise. You were clearly residing in the flat, even if you had an alternative address which you could use with your parents. Your clothing can be seen hanging up within it and there are items within the bathroom which indicate a masculine presence and there are two toothbrushes. There is a wallet in the TV cabinet with your bankcards within it, even though you say the wallet is not yours.

In any event, why would you be doing the washing from the flat if you did not live there? The items included bedding and women’s clothing. There was plenty of ‘Ice’, Mr Ng, which you could have consumed inside the flat and, indeed, the paraphernalia was there for you to consume it inside the flat if you were a drug addict, even though I take note of what Mr Boyton said, when he resiles from the fact that that is what you were doing. But it was there. It was there to be taken by you. The ‘Ice’ found upon you was concealed in a bucket under clothing. You never suggested that you were going home to the Tung Tai Estate to consume it when you were stopped and searched. In fact, you gave the officers the flat address and not your Tung Tai address when they asked for it. It was 4.35 in the morning and you had on you a large sum of money for a construction worker and two mobile phones. The only reasonable inference to be drawn from that is that you were about to supply those dangerous drugs to someone else.

Ms Shu, the authorities in Hong Kong appear to have three identities for you and today through your counsel you say those are all you, that you correctly identify today as Shu Yuhua. You are 41 and a citizen of China but married, although separated, from a Hong Kong resident. I am told you have a six-year-old daughter and ordinary live in Shenzhen but had come to Hong Kong to visit Mr Ng with whom you were having an affair and with whom you leased the flat in question in order to continue that relationship.

From the evidence available to me through Ms Chan, it appears you must have left your daughter in Shenzhen in mid-January and now I know it is earlier than that, in early January, in order to come to Hong Kong and find a flat. I am told you had a fulltime job in China as a logistics clerk, although that cannot have been the case if you were here from 8 January onwards until 11 February when you were arrested. So you must have been making your money somehow. No one has suggested that you were commuting to and fro. You seem to have come to Hong Kong both to see Mr Ng and traffic in dangerous drugs as this was a fairly sophisticated exercise in that I can see this humble flat even has equipment to suck out air from packaging and there was the HK$76,000 in the side cabinet. This was not a one-off exercise as you say you expected to earn several tens of thousands of dollars distributing these drugs. When pressed, you said you would receive HK$20,000. I note that that HK$20,000 included payment for the rental of the flat and the utilities. That is a considerable sum of money. You were clearly not at the bottom of the hierarchy.

I take the view that you were a quartermaster, closer to the end recipient, but a quartermaster nevertheless. I doubt either of you have been entirely frank with the court. That being the case, the court is not going to simply accept bare assertions from either of you not properly borne out by the facts. However, I am not sentencing you for what I believe was going on and was an ongoing enterprise; I am sentencing you for the dangerous drugs found that morning. This is not the first time you have been before the courts, but again, those matters bear absolutely no relation to this case, which is, of course, extremely serious.

I have read your letters and note that both of you say that you are remorseful. But these are very serious offences with significant consequences to the people of Hong Kong and only a deterrent sentence will stop others following suit.

Mr Ng, the guideline authority for trafficking in smaller quantities of ‘Ice’ is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking in 52.6 grammes of ‘Ice’, the starting point after trial for between 10 and 70 grammes of ‘Ice’ is between 7 and 11 years’ imprisonment. For 52.6 grammes, the starting point after trial would be 9 years and 9 months. There is no other mitigation which can affect the sentence this court must pass. But you are, of course, entitled to a one-third discount for your early plea, which is to your credit, and you will go to prison for 6 years and 6 months. I say again, you are a very lucky man.

Ms Shu, the relevant sentencing guideline in your case for a far greater amount of drugs is HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 because you are responsible for trafficking in a significant quantity of ‘Ice’. For trafficking in between 1,200 and 4,000 grammes of ‘Ice’, the starting point after trial is between 23 to 26 years. For trafficking in 2,426.9 grammes of ‘Ice’, the starting point is, therefore, 24 years and 3 months. There is an aggravating feature that I take the view that you are not a vulnerable person manipulated by others to run dangerous drugs. You were clearly higher up the chain. But given that you are to receive a significant sentence for the dangerous drugs you were trafficking that night, I am only going to enhance your sentence by 6 months to 23 years and 9 months. That takes into account totality of sentencing and also your role. You too will receive a one-third discount for your early indication of plea, which is to your credit.

You will go to prison for 16 years and 6 months.