HKSAR v. Nf Chun Lung

HCCC 366/2019

[2020] HKCFI 721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 366 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the facts

On 28 October 2019, the defendant pleaded guilty in the Eastern Magistrates’ Courts to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134. This morning, he confirmed his plea before me and accepted the Summary of Facts.

Briefly, it was agreed that in the night of 2 September 2018, a private vehicle was stopped for investigation. The defendant was occupying the front passenger seat at the time and upon search, the following items were found: a) a plastic bag containing four plastic bags with a total of 54.7 grammes of a crystalline solid containing 44.5 grammes of methamphetamine hydrochloride, ‘Ice’, placed under the left rear passenger seat; and b) a nylon bag containing 25 plastic bags with a total of 4.29 grammes of a solid containing 3.89 grammes of cocaine as well as 43 plastic bags with a total of 55.6 grammes of a powder containing 40.17 grammes of ketamine under the front passenger seat.

The defendant was arrested and under caution he admitted that the drugs belonged to him but he claimed that they were for his self-consumption.

A further search revealed that the defendant hid with him cash of $305.5 and a mobile phone. During the subsequent video-recorded interview, the defendant said that he had purchased the drugs for HK$40,000 and would share the ‘Ice’ with his friends. The cocaine and the ketamine were for his own use over a period of one week and one month respectively. According to the police, the estimated street value of the drugs was about HK$58,000.

Mitigation and the defendant’s background

The defendant was born in Hong Kong. He is now aged 34 and is married. He received education up to Form 3 level and had worked as a renovation worker, earning about 20,000 per month prior to his arrest but he was unemployed at the time of arrest. The defendant has got three convictions recorded between 2002 and 2004, one of which was possession of a dangerous drug in 2002. He has been put on probation and sent to the detention centre.

It was said by Mr Tang for the defendant that his greatest mitigation was the guilty plea. Mr Tang, however, relying on HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116 and HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, originally suggested in his written submissions that as there was at least a small portion of the drugs for the defendant’s own consumption, he should be given a further reduction of sentence. However, Mr Tang agreed at this hearing that if the claim for self-use was in respect of a small amount, then these cases would not apply.

In the course of mitigation, letters from the defendant’s mother, his wife and the defendant himself were submitted to the court. The defendant’s family members considered that his commission of the present offence was a result of his foolish and rash act and they begged for a lenient sentence to be passed on the defendant.

Sentencing considerations

The tariffs for trafficking in ‘Ice’, cocaine and ketamine were respectively laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, R v Lau Tak Ming & Others [1990] 2 HKLR 370 together with AG v Pedro Nel Rojas [1994] 2 HKCLR 69, and SJ v Hii Siew Cheng [2009] 1 HKLRD 1. For 10 to 70 grammes of ‘Ice’, a term of imprisonment of 7 to 11 years is called for. For up to 10 grammes of cocaine, a term of 2 to 5 years is called for. Finally, for 10 to 50 grammes of ketamine, a term of 4 to 6 years is called for.

Since the charge to which the defendant pleaded guilty involved multiple drugs, there are two sentencing approaches, that is, the individual approach and the combined approach. See for example HKSAR v Ko Ka Hing [2009] 4 HKLRD 856.

In this case, having considered all the circumstances including that the ‘Ice’ and ketamine involved were of similar quantity while cocaine only constituted a relatively small amount, I find it appropriate to adopt the combined approach as suggested by Mr Tang.

In my view, based purely on the narcotic content, a starting point of 9 years and 9 months would be appropriate and I have cross-checked this by applying the conversion test, the ratio test and the absurdity test which yielded a term of 11 years and 3 months as being an absurd sentence.

No doubt, there is an aggravating factor which I need to take into account which is an enhancement to reflect the more serious nature of trafficking in different types of drugs. For example, see HKSAR v Chan Yuk Leong, CACC 318/2013 (8 April 2014 unreported).

For this aggravating factor, I am going to enhance the sentence by 6 months. Therefore, the global starting point which I am going to adopt after enhancement is one of 10 years and 3 months. That is a total of 123 months.

In respect of the defendant’s claim that there was a small amount of the drugs for his own consumption, I had told Mr Tang, in the course of these proceedings, that in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297 and HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, the Court of Appeal had already pointed out that the range of discount suggested in HKSAR v Chow Chun Sang was not relevant unless a significant proportion of the drugs in question was for the defendant’s self-consumption. If it was the defendant’s case that not a significant portion was involved, it would then be a matter of discretion for the sentencing judge to decide whether any reduction should be granted for this self-consumption element and if so, the range of the discount given.

In the present case, given the circumstances under which the drugs were found, the way they were packaged and stored; and given their value vis-à-vis the very little amount of cash found on the defendant’s person and his financial means, I have grave doubts in the absence of further evidence, that the defendant would have any portion of the drugs for his own-consumption. When Mr Tang raised this matter in the course of mitigation, I already indicated to him that I was not inclined to accept this claim. When asked whether there would be further evidence or further submission to be made on this, Mr Tang replied in the negative. Therefore, all that was before me was the assertions made by the defendant after his arrest and a claim now made through his counsel Mr Tang.

In my view, the defendant was more probably a courier delivering the drugs to others at the time of his arrest, not that he had himself bought the drugs and would keep them for self-consumption and/or sharing with friends as claimed.

I should say that even if there were indeed a small portion of the drugs for the defendant’s own use, I would not consider it appropriate to exercise my discretion to reduce his sentence because of this factor. There is no dispute that simple possession of a dangerous drug is itself an offence which might call for a term of imprisonment. There is also no dispute that the defendant has already got one previous record of simple possession.

The sentence

As pointed out earlier, the defendant pleaded guilty at the committal stage. He would receive the full one-third reduction for that. Other than his guilty plea, there is nothing in this case which would warrant any further reduction in sentence. 123 months reduced by one-third is a term of 82 months’ imprisonment. I therefore sentence the defendant to 82 months.