HKSAR v. Ng Yu Tin

HCCC 112/2020

[2020] HKCFI 2500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 112 OF 2020

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The accused was charged with one charge of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, and one charge of keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance.

Charge 1 alleged that he, between the 24th day and 25th day of April 2019, at a flat situated in Kwun Tong, unlawfully trafficked in a total of 11.44 grammes of a solid containing a total of 10.92 grammes of methamphetamine hydrochloride or methamphetamine, commonly known as ‘Ice’, and a total of 1.45 grammes of a solid or a mixture containing 1.18 grammes of heroin hydrochloride or heroin. Charge 2 alleged that he, between the same period and at the same flat, kept a divan where dangerous drugs, namely methamphetamine hydrochloride, methamphetamine, heroin, heroin hydrochloride were sold in the divan and were to be smoked, inhaled, ingested or injected therein.

The accused pleaded guilty to the charges before the magistrate at the committal stage and was on 1 June this year committed to the Court of First Instance for sentence. He comes before me today for sentence, having confirmed his plea and admission of the Summary of Facts in support yesterday.

The facts giving rise to the offence may be summarized as follows. Police officers gained entry to Flat E, 3rd Floor, Hong Wah House, Nos. 32-38 Hong Ning Road, Kwun Tong at about 6.25 pm on 25 April 2019 while D opened the door of the flat for a male’s entry. The accused identified himself as the person responsible. There were 13 other persons in the flat. The flat was installed with CCTV cameras which could be viewed at the counter near the entrance with live images of the staircase and entrance of the flat depicted.

Upon search, the police found on top of the counter near to the accused: Exhibit E1, one tinfoil packet containing 0.01 gramme of a solid containing heroin, and one paper packet containing 0.01 gramme of a powder containing heroin; Exhibit E2, one waist bag containing 28 plastic bags containing a total of 9.75 grammes of a crystalline solid containing 9.54 grammes of methamphetamine hydrochloride, and cash of HK$4,685.70; Exhibit E3, two tin boxes containing a total of eight packets containing a total of 1.43 grammes of a mixture containing 1.18 gramme of heroin hydrochloride; Exhibit E4, eight plastic bags containing a total of 1.22 grammes of a crystalline solid containing 1.21 gramme of methamphetamine hydrochloride.

On the other tables placed inside the flat, the police also found: Exhibit E8, one inhaling device containing 104 millilitres of a liquid containing 0.23 gramme of a solid upon drying, containing 0.17 gramme of methamphetamine; Exhibits E9 to E11, three inhaling devices containing a total of 312 millilitres of a liquid containing 0.24 gramme of a solid upon drying, containing methamphetamine.

Upon police inquiry, the accused claimed that E1 was for self‑consumption. Upon his arrest, the accused stated under caution that as his friend knew he was in need of money and he used to consume No. 4, his friend asked him to take care of the business for one day to sell ‘Ice’ to customers so that the accused could earn money and consume No. 4. At the time of his arrest, the accused had cash of HK$1,700 with him.

In the subsequent video-recorded interview, the accused stated that he started working at the flat at 8 pm on 24 April 2019. He would receive a reward of $1,200 for working there for 24 hours. He was responsible for selling dangerous drugs to customers and collecting money from them. The accused said he would put the money received from customers into the waist bag, E2. Details of the selling price for ‘Ice’ and heroin respectively were given. The other 13 persons found inside the flat consumed ‘Ice’ or heroin therein.

Regarding the exhibits seized in the flat, the accused said the notebook was used to mark the transaction records of the drugs sold, and the calculator was used to calculate the amounts payable. The accused said he purchased El at $200 for his consumption by using rolled-up paper. E2 was for sale to customers. The syringes were for injecting heroin, and the bottles were for inhalation of ‘Ice’. The accused said the money on his person belonged to him, obtained from his work.

The estimated street values of the ‘Ice’ and heroin seized were HK$6,595 and HK$1,035 respectively in April 2019, making a total of HK$7,630.

The accused now admits that at the material time, he unlawfully trafficked in the dangerous drugs seized in the flat and he kept a divan where dangerous drugs were sold and were to be smoked, inhaled, ingested or injected therein.

The accused is 49 years of age. He has no similar previous conviction, but 11 previous convictions for other offences including one conviction for possession of dangerous drug and two convictions for possession of pipe, equipment fit and intended for smoking, injecting, inhaling dangerous drugs. He was last discharged from Hei Ling Chau Correctional Institution in January 2019. He was educated up to Primary 2 and worked as a construction worker since 2001. At the time of his arrest, the accused was living with his wife and two children.

In mitigation, counsel for the accused, Mr Steve Chui, informed the court that the accused committed the present offences so as to earn quick money to support his drug addiction. The accused was a drug addict consuming ‘Ice’ and heroin before his arrest. He was tested positive for opiate and amphetamine upon his admission to Lai Chi Kok Reception Centre on 28 April last year.

Counsel said the accused is remorseful and asked for leniency. The accused has pleaded guilty and defence counsel urged this court to adopt the combined approach in calculating the sentence to be imposed for Charge 1 and to give the accused the full one-third discount for the plea.

Counsel also urged this court to exercise its discretion to give the accused a further discount for the quantities of ‘Ice’ and heroin for his own consumption. In the end, counsel submitted that the appropriate overall sentence for both charges is one of 5 years’ imprisonment.

For the claim of self-consumption, counsel relied on the urine test report confirming that the accused had consumed heroin and ‘Ice’ prior to his arrest as the basis for the court’s acceptance of the claim. Counsel submitted that the accused purchased the heroin in Exhibit E1 at HK$400 and one of the packets of ‘Ice’ in Exhibit E2 at HK$800 for his own self‑consumption. According to the Summary of Facts, E1 consists of one tinfoil packet containing 0.01 gramme of a solid containing heroin, and one paper packet containing 0.01 gramme of a powder containing heroin. E2 consists of 28 plastic bags containing a total of 9.75 grammes of a crystalline solid containing 9.54 grammes of methamphetamine hydrochloride. Having checked the government chemist’s certificate and the photos depicting the bags in E2, it is confirmed that the bag in question contained less than 1.88 gramme of ‘Ice’ narcotic.

It is well-established that when all or a significant part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point. Nonetheless, there is a risk of abuse in this avenue of mitigation. It is therefore the task of the sentencing court to determine where the truth lies on a proper factual and evidential basis.

During mitigation, I informed counsel that I am not prepared to accept bare assertion from the Bar table, and invited the accused to support his claim by way of a Newton inquiry if he so wished. As a result, a Newton inquiry was conducted on 20 August this year to resolve this matter. Having heard the accused’s evidence in support of his assertion, I was not satisfied that one of the bags of ‘Ice’ in E2 was intended for the accused’s self‑consumption and his claim failed. On the other hand, while I accept that the heroin in E1 was intended for the accused’s self‑consumption, the quantity involved was so minimal that no further discount is warranted. Indeed, counsel did fairly accept that even if this court were to accept that El and less than 1.88 gramme of ‘Ice’ in E2 were for his own consumption, the amount itself would not be of significant proportion. I therefore would not award any further discount for this matter.

In sentencing, I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the drugs involved, the accused’s personal circumstances and the mitigation advanced on his behalf by defence counsel.

In relation to Charge 1, the accused had trafficked in two types of dangerous drugs, namely ‘Ice’ and heroin. The total narcotic content involved was 10.92 grammes of ‘Ice’ and 1.18 gramme of heroin, making a total of 12.1 grammes of narcotics.

According to the guidelines in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for trafficking in 10 grammes to 70 grammes of ‘Ice’, the sentence should range from 7 to 11 years’ imprisonment after trial. According to the guidelines laid down in the case of R v Lau Tak Ming [1990] 2 HKLR 370, for sentence involving trafficking in heroin where the narcotic content is up to 10 grammes, a sentence between 2 and 5 years’ imprisonment should be imposed after trial, whereas trafficking in heroin where the narcotic content ranged from 10 grammes to 50 grammes, the sentence should range from 5 to 8 years’ imprisonment after trial.

On the above sentencing guidelines, the starting point for trafficking in 10.92 grammes of ‘Ice’ narcotic is about 7 years’ imprisonment, and 1.18 grammes of heroin narcotic corresponds to a starting point of about 2 years 4 months’ imprisonment.

To sentence the accused on the individual approach would produce a starting point of 9 years and 4 months’ imprisonment which would be too high and does not properly reflect the justice of the case.

To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves upward adjustment from the starting point of the base drug. In computing the appropriate sentence, I have had regard to the principles enunciated by the Court of Appeal in the cases of HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542, HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Chan Yuk Leong, CACC 318/2013, and HKSAR v Islam Majharul [2020] HKCA 300 or CACC 67/2019.

In the present case, ‘Ice’ is the more serious drug in terms of its potency and the sentencing tariff. I will use ‘Ice’ as the base drug in the calculation. As stated above, the starting point for trafficking in 10.92 grammes of ‘Ice’ narcotic is about 7 years’ imprisonment. In determining the upward adjustment for the remaining heroin narcotic, I examine the overall starting point by checking it against the absurdity test, the conversion test and the ratio test.

Under the absurdity test, the overall starting point would be about 7 years 1 months’ imprisonment. Under the conversion test, the overall starting point based on the ‘Ice’ sentencing guidelines is about 7½ years’ imprisonment, and based on the heroin sentencing guidelines would be 7 years 1 month’s imprisonment. The overall starting point based on the ratio test is about 6 years 11 months’ imprisonment.

Taking all these matters into account, I consider it fair to make an upward adjustment of 1 month, resulting in an overall starting point of 7 years and 1 month’s imprisonment, that is, 85 months.

In the present case, different types of drugs were seized at the same time even though separately packed and not in a prepared mixture. Having regard to the two possible aggravating features, namely: one, the ability of the trafficker to cater to a wider market; and two, the effect on users of combination of dangerous drugs, I further enhance the starting point by 3 months to 7 years and 4 months, that is, 88 months.

The accused pleaded guilty at the earliest opportunity. He is entitled to the full one-third discount of his sentence. There being no other mitigating factor, one-third is the extent of discount he is entitled to in the present case. Nonetheless, he sought to challenge the quantity of drugs involved in the trafficking activity, the claim of which was unsuccessful after a Newton inquiry. As a result, judicial resources are used and public funds are expended. It is an established principle that the unsuccessful challenge may have an impact on the sentence to be imposed, resulting in a reduction to the discount to be given following a plea of guilty.

Taking all the circumstances into consideration, it is appropriate to reduce the one-third discount from 33.33 per cent for the accused’s guilty plea to Charge 1 by 3.33 per cent, that is, the discount is reduced to that of 30 per cent as far as the sentence in Charge 1 is concerned. The final sentence for Charge 1 is one of 61.6 months’ imprisonment, rounding down to 61 months’ imprisonment.

In relation to Charge 2, I have had regard to the cases of HKSAR v Ng Ka Wing Kevin, CACC 563/1999, HKSAR v Lam Lai Chu Patsy, CACC 56/2003, and HKSAR v Chong Cho Kit, CACC 363/2005.

Given the scale of the divan in the present case, I consider the proper starting point is one of 2 years. The accused is given the full one-third discount for his timely plea of guilty and sentenced to 16 months’ imprisonment accordingly. No reduction is made for the unsuccessful Newton inquiry.

In the case of Ng Ka Wing Kevin, the Court of Appeal held that when the defendant is being sentenced to divan keeping and trafficking in the drugs that was being consumed in the same divan that he was keeping, the sentences can be ordered to run consecutively as the act of providing drugs to others for consumption and that of keeping a divan are different and separate matters.

Applying the totality principle, I order that 6 months of the sentence in Charge 2 to be served consecutively to the sentence in Charge 1, making a total of 67 months’ imprisonment, that is, 5 years and 7 months.

Accused, please stand up. For the matters I have mentioned, you are sentenced to an imprisonment term of 5 years and 7 months for both charges.