HKSAR v. Ng Ngo Yu, Godwin

DCCC 779/2019

[2020] HKDC 1181

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 779 OF 2019

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 70.2 grammes of a powder containing 54.9 grammes of fluorodeschloroketamine and 1.07 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary on 15 May last year the police set up a roadblock at Mei Lai Road in Lai Chi Kok.  At 1:05 a.m. the police pulled over for inspection private car bearing registration mark VW 7796 which was being driven by the defendant. 

3.Upon search the police found at the right side of the driver’s seat a packet of lozenges inside which was seven transparent re-sealable plastic bags containing the fluorodeschloroketamine and the ketamine. 

4.The street value of fluorodeschloroketamine and the ketamine was estimated to be about $39,450.

5.Three mobile phones and $1,820 were found on the defendant.   A further $5,800 was found inside the storage compartment in front of the gear shift. 

Mitigation

6.In passing sentence, I have carefully considered the written and oral submissions of Ms Ku, including that the defendant, who is aged 40, married and prior to arrest was working as a delivery worker on a casual basis, committed the offence due to financial difficulty[2].

7.I have read the defendant’s mitigation letter in which he expresses his regret and promises this will be his last conviction.  I take into account while on remand the defendant has joined the organ donation registration scheme[3]. 

8.I have also read the letter written by the defendant’s wife who describes the defendant as a good person with no bad habits.  The defendant’s wife and his parents have attended court today to show their support[4].

Guidelines

Fluorodeschloroketamine

9.There are no guidelines for fluorodeschloroketamine.  The prosecution has submitted expert reports of Dr Mak dated 3 March 2020 and 8 July 2020 detailing the nature of fluorodeschloroketamine.  Dr Mak is of the opinion that the potency of fluorodeschloroketamine is similar to, or slightly higher than ketamine. 

10.In HKSAR v So Wan Cheung the High Court, having read a report prepared by Dr Mak, treated for sentence purpose fluorodeschloroketamine as equivalent to ketamine[5].  Ms Ku asks that the court also treats fluorodeschloroketamine as equivalent to ketamine[6].

11.In Secretary for Justice v Hii Siew Cheng[7]the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 50 and 300 grammes sentence after trial falls within the range of 6-9 years.  I am satisfied a starting point of 6 years’ imprisonment is appropriate for trafficking in a total of 55.97 grammes of fluorodeschloroketamine and ketamine.

12.Although the defendant has a previous conviction for trafficking in drugs, taking into account that was in 2009 and the defendant was released after serving sentence in 2013, I accept the submission of Ms Ku the sentence should not be enhanced by reason of the criminal record[8].

Own use

13.The defendant claims that he has been consuming ketamine for over ten years and that 14-16 grammes would have been kept for his own consumption[9]. 

14.The prosecution opposes the claim on the basis that in the antecedent statement the defendant did not claim to have a drug habit; no incriminating items consistent with consuming drugs were found in the defendant’s residence; the time of arrest and the packaging which was suitable for trafficking.  

15.Ms Ku submits the defendant’s previous convictions for possession of drugs supports the assertion part of the drugs were for the defendant’s own consumption[10]. 

16.The criminal record revealing the defendant had never been sentenced to DATC I called for the case papers for the defendant’s last conviction in 2016 when he was sentenced to 2 months’ imprisonment for possession of drugs.  The sentencing magistrate called for both a probation report and a DATC report.  Both reports have been shown to Ms Ku[11].

17.The dangerous drug was ketamine.  The defendant told the probation officer he bought the ketamine to relieve pain on his knee but was arrested before he had tried the ketamine.  Similarly, the defendant told the Assessment Officer in Lai Chi Kok he was arrested before taking the ketamine. 

18.The probation report also reveals that the defendant claimed the only drug he had ever taken was cannabis when he was a teenager.  The defendant told the Assessment Officer that he had no drug abuse experience before but did tell the medical officer he had consumed cannabis a few times in 2000.  The defendant was found not to be drug dependant. 

19.As indicated in court I do not accept the mere assertion that part of the dangerous drugs was for the defendant’s own consumption.  Ms Ku having taken instructions from the defendant informs the court that the defendant does not wish to give evidence in support of his claim. 

20.Taking into account, inter alia, the defendant was arrested in the street and not at home; no incriminating items were found in the defendant’s home and in the antecedent statement he claimed not to have a drug habit which was consistent with the finding in 2016 that he was not a drug dependant and that he claimed only to ever have taken cannabis, I reject the assertion part of the dangerous drugs was for the defendant’s own consumption.

Sentence

21.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 4 years’ imprisonment.