HKSAR v. Ng Tsz Ching

HCCC 54/2019

[2020] HKCFI 257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 54 OF 2019

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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 to two counts of trafficking in dangerous drugs before a magistrate, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and is committed to the High Court for sentence.

The Summary of Facts

This is a case of stop and search in the early hours on 2 November 2017. The police found inside a black bag carried by the defendant the following:

(a) two bags containing 1.41 grammes of a powder containing deschloro-N-ethyl-ketamine, with short form, we call it d-N-e ketamine; and

(b) one bag containing 0.01 gramme of a crystalline solid containing d-N-e ketamine.

Under arrest and caution, the defendant said she knew it was wrong to traffic in dangerous drugs. She also told the police she had rented a room at the Inn Hotel nearby and brought the officers there. A search of the room rented by the defendant yielded the following from a safe:

(a) a bag containing 41.3 grammes of a solid containing 39 grammes of cocaine;

(b) one bag containing 397 grammes of a solid containing 203 grammes of ketamine and 102 grammes of a powder containing d-N-e ketamine;

(c) one bag containing 188 grammes of a powder containing 1.6 grammes of ketamine;

(d) one bag containing 554 grammes of a crystalline solid containing 546 grammes of methamphetamine hydrochloride, that is ‘Ice’;

(e) four bags containing a total of 986 grammes of herbal cannabis; and

(f) one bag containing a foil pack containing 10 tablets containing phenazepam.

Now, from a suitcase on the bed:

(a) two electronic scales;

(b) one plastic bag sealing machine;

(c) some empty transparent resealable bags; and

(d) one plastic bag containing a paper cutter, five spoons and a pair of scissors.

The defendant was further arrested and under caution she said she trafficked the dangerous drugs because she wanted to make quick money. She also said she knew it was wrong. The police found one hotel key and two mobile phones on the defendant’s person.

During a video-recorded interview, the defendant said she assisted another person to sell the drugs for a reward. She had used the two mobile phones in this connection. All the drugs and paraphernalia found inside the hotel room were for trafficking.

The estimated value of all the dangerous drugs seized was $663,641.

Expert Opinion

Dr Tony Mak, consultant chemical pathologist of the Hospital Authority Toxicology Reference Laboratory and the Chief of Service of the Department of Pathology and Deputy Hospital Chief Executive of the Princess Margaret Hospital, commented that this deschloro-N-ethyl-ketamine was an emerging drug of abuse. It causes similar dissociative and hallucinogenic effects as ketamine. However, the apparent toxicity of the former is greater than the latter with a higher incident of impaired consciousness, convulsion and hypertension. The adverse clinical effects of this d-N-e ketamine are more prominent. d-N-e ketamine is about fivefold more potent than ketamine.

The Background and Mitigation

The defendant, who has a clear record, was 20 years old when she committed these offences. She completed Form 3 education and has worked as a cashier, a clerk, a waitress and a hairstylist before. At the time of the arrest, she was unemployed. The defendant was married but her husband remained in Mainland China.

In mitigation, the defendant’s counsel, Mr Clement Lau, provided further information on the defendant. The defendant was said to have worked in a salon, a convenience store, an office and a restaurant. Her former employers had written to this Court, asking for leniency on her behalf.

The defendant’s half-sister and the defendant herself also wrote to this Court. From their letters, it was said that the defendant’s father deserted her mother even before the defendant was born. The defendant’s mother was so immersed in gambling that she practically deserted the defendant as well. The defendant then lived with her maternal grandmother. She moved out to live with her boyfriend. The defendant owed money to financial institutions and she was persuaded by her boyfriend to traffic dangerous drugs. She is very remorseful for the harm she had caused to the society. She suffers from diabetes which makes it harder for her to be in gaol as she needs to receive insulin injections twice a day.

Upon her arrest, she had given information to the police about the case. The defendant, her half-sister and a pastor all said things positive about the defendant and asking for leniency on her behalf.

The Sentence

Trafficking in dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to a fine of $5 million and to imprisonment for life.

In the present case, both offences were committed on the same day and the facts were closely linked. The d-N-e ketamine in Count 1 was obviously connected with the dangerous drugs in Count 2. The proper approach is to have regard to the total amounts of dangerous drugs in Count 1 and 2 to arrive at an overall starting point (see the case of HKSAR v Chow Yu Chi, CACC 359/2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499).

The defendant was convicted of trafficking more than one kind of drug. The circumstances of these offences are serious. The defendant was clearly using the hotel room as a storage place for all these drugs. She had equipped herself with the apparatus to weigh and package the drugs as and when required by clients. The modus operandi adopted can be compared with the delivery service of a fast food shop.

For the trafficking of more than one kind of drugs, there are two sentencing approach open to the sentencing judge: (a) an individual approach where each component in a cocktail of drugs is looked at to establish the sentence relevant to each individual drug before an appropriate adjustment to the overall sentence is made; and (b) a combined approach where a sentence for the most serious drug would be calculated before making an upward adjustment to take into account significant quantities of the other less serious drugs in terms of their potency.

I will first look at the appropriate starting point of each drug before deciding which approach is better, bearing in mind no matter which approach is adopted, it is the overall sentence that is important. I will add here that Mr Clement Lau urged this Court to adopt a combined approach.

Appropriate Starting Point for ‘Ice’

The ‘Ice’ involved in this case amounts to 546 grammes. According to the guidelines in the case of Tam Yi Chun, the starting point after trial for trafficking 300 to 600 grammes of ‘Ice’ is one between 15 to 20 years. Bearing in mind the circumstances of this case, I am of the view that a starting point of 19 years is appropriate.

Appropriate Starting Point for Cocaine

For the trafficking of cocaine, the guidelines for heroin in the case of R v Lau Tak Ming has been adopted for the sentencing of cocaine trafficking. That is the case of AG v Pedro Nel Rojas. The cocaine involved here is 39 grammes which falls within the band of 10 to 50 grammes with a starting point between 5 to 8 years. An appropriate starting point is one of 7 years, in my view.

Appropriate Starting Point for Ketamine and the d-N-e ketamine

In the case of Secretary for Justice v Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine. The quantity of ketamine involved here is 204.6, that is 203 plus 1.6, which fits into the band of 50 to 300 grammes with a starting point of between 6 to 9 years.

The amount of d-N-e ketamine found inside the hotel room is 102 grammes. For the substance found inside the bag that is in Count 1, there was no discernible amount of d-N-e ketamine identified. Just that d-N-e ketamine was contained in 1.41 grammes of a powder and 0.01 grammes of crystalline solid. So adopting 102 grammes as the basis and assuming that one treats this d-N-e ketamine the same as ketamine, the total amount of ketamine would become 306.6, that is 204.6 plus 102, which is within the band of 300 to 600 grammes with a starting point between 9 to 12 years. Now, adopting this approach and bearing in mind the quantity is just over 300 grammes, the appropriate starting point is 9 years.

While the toxicity and the adverse effect of the d-N-e ketamine being more serious than ketamine may well justify an upward adjustment of the appropriate starting point, I will deal with this after I decide which of the two approaches I will adopt.

The Appropriate Starting Point for Herbal Cannabis

The cannabis involved here are 986 grammes of herbal cannabis. In the case of AG v Chan Chi Man, guidelines were given for the trafficking of cannabis resin which was four times more potent than herbal cannabis. So adjustment needs to be made and that is in the case of the AG v Tuen Shui Ming and Another. The guideline for trafficking under 2,000 grammes of cannabis resin was up to 16 months. So the trafficking of the less potent herbal cannabis is up to 4 months.

Now, I will decide the approach to be adopted. Having set out the appropriate starting point for each drug, I am of the view that the combined approach is more appropriate in this case. I will use ‘Ice’ as the basis and adjust the sentence upwards after taking into account significant quantities of other drugs. Because I need to take into account significant quantities, I will disregard the herbal cannabis and the 10 tablets containing phenazepam in this exercise.

I will add here that the quantity of ketamine and the d-N-e ketamine are relevant to the upward adjustment of the starting point for the trafficking of ‘Ice’. For this exercise of upward adjustment, I will treat d-N-e ketamine the same as ketamine even though the toxicity and the adverse effect of d-N-e ketamine are more serious than ketamine. So I have identified the starting point for ‘Ice’ being 19 years, for cocaine 7 years and for ketamine 9 years.

I will now have to decide the overall starting point using ‘Ice’ as the basis. The total amount of narcotics amount to 891.6. If these were all ‘Ice’, the starting point would have been between 20 to 23 years. That is the case of Tam Yi Chun and Abdallah. In the case of Abdallah, between 600 and 1,200 grammes, the starting point is 20 to 23 years. So I am of the view that if these are all ‘Ice’, an appropriate starting point would have been 22 years, and since they were not all ‘Ice’, with the upward adjustment, the overall starting point should not be as high as 22 years. The appropriate starting point, after taking into account the significant quantity of cocaine and ketamine, is, in my view, 21 years.

The defendant pleaded guilty on the earliest available opportunity and is entitled to a full one-third discount. With such a discount, the sentence will be one of 14 years.

I now have to consider whether the defendant is entitled to any further discount. First of all, the defendant’s medical condition. Whilst I understand the difficulties faced by the defendant on account of her suffering from diabetes, it must be remembered that a prisoner’s medical condition was not a matter to which the court would have regard for mitigation or for proper sentence though it might well be a matter for the Executive, if brought to their attention and deserving consideration. That is the case of R v Ho Mei Lin [1996] 4 HKC 491.

The other aspect is the defendant’s assistance to the authorities. I have been provided with two non-prejudicial statements given by the defendant, giving detailed information of how she became involved in the trafficking of these dangerous drugs and who were the personnel involved. Though the defendant claimed certain useful information was available from her mobile phone, she was unable to provide the correct passcode to unlock her phone. Even with the leave of this Court for her to try to access her phone this morning, she was unable to do so.

I understand from Mr Oscar Tan for the prosecution that one of the persons named by the defendant was invited by the police to go to a police station and was interviewed. However, since the defendant was unable to provide further information allegedly contained in her mobile phone, no prosecution can be taken against that certain person in the absence of corroborative evidence.

In the case of HKSAR v Dewi Ilmayanti and Another, CACC 370/2015 or [2019] HKCA 794, the Court of Appeal said in paragraph 74:

“Assistance to authorities entitles a defendant to an additional discount beyond the one-third for the plea of guilty. Where that assistance is only the provision of information that is of practical use but does not result in successful law enforcement action the appropriate discount will usually be in the range of 33.3 per cent to 40 per cent.”

Having considered the contents of the two NPS and the confirmation by Mr Tan, I am satisfied that the defendant has provided information of practical use which does not result in successful law enforcement action. I will give the defendant a total discount of around 40 per cent which of course already included the one-third discount for plea.

With a starting point of 21 years, a 40 per cent discount will yield 12.6 years of imprisonment but I will round it up to 12 years and 6 months, so making the sentence slightly more than a 40 per cent discount.

For the actual sentence, Count 1, 12 years and 6 months; Count 2, 12 years and 6 months; both sentences to run concurrently, making a total of 12 years and 6 months’ imprisonment, all right?