HKSAR v. Ng Chun Yin

DCCC 647/2020

[2021] HKDC 272

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 647 OF 2020

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty on the first day of the trial of a count of trafficking in dangerous drugs involving 5.75 grammes of a solid containing 5.44 grammes of cocaine.

2.The facts of this case, as admitted by the Defendant, disclose that the Defendant went on board a taxi at some time after 2 am, and asked the taxi driver to take him to Fu Tai Estate.  Shortly before 3 am, the taxi arrived at a carpark of Fu Tai Estate, where the Defendant asked the driver to approach and stop near an unknown male.  The Defendant greeted and said “Thank you” to that male through the open window.  The Defendant asked the driver to take him elsewhere.  The taxi was then intercepted by the police. 

3.One transparent plastic bag containing 32 resealable plastic bags containing a total of 5.75 grammes of a solid containing 5.44 grammes of cocaine was found inside the Defendant’s right shoe, and two mobile phones and HK$18,545.60 cash were found on the Defendant. 

4.The Defendant was arrested and cautioned for trafficking in dangerous drugs.  The Defendant said under caution “Ah Sir, give me a chance, those things were for my own consumption”.  The Defendant also said under caution that the drugs seized were cocaine and that he had received them from a friend in Fu Tai Estate for his own consumption.  He claimed that he was a drug addict and that the drugs seized would be sufficient for a day or so’s consumption. He said that he had yet to pay for the drugs seized which would cost about $5,000 to $6,000 as he lacked the means to do so.  He owed his friend $16,000 for the drugs that he had previously taken.  He stated that the cash found on him was borrowed from others and that the two mobile phones belonged to him. 

5.The Defendant is 30 years old, married, and has a 3-year-old son and one-year-old daughter.  He lived with his parents and elder brother.  He was a repairman at the Housing Authority earning $30,000 a month.  Mitigation letters had been submitted. 

6.He had been in remand since April 2020.  Although the trial date had been fixed, a letter was written to the court on 18 January 2021 indicating the Defendant’s intention to plead guilty at the trial. 

7.Defence counsel submitted that the Defendant intended to consume 2 grammes out of the dangerous drugs seized.  For each occasion, he would consume one small packet of cocaine.  The cocaine seized came in the small packets as found by the police.

8.It was also submitted that the Defendant had marital discord at the time of the arrest, and had relapsed into drug-taking behaviour as a result.  He has a previous record of possession of dangerous drugs in 2011, for which he had been sentenced to 15 months’ probation. 

9.Defence had also submitted a letter from the Correctional Services Department confirming that the Defendant had been tested positive in cocaine at the urine test conducted at his admission to Lai Chi Kok Reception Centre the day after his arrest. 

10.Prosecution disputes the said claim by the defence.  It is submitted by fiat counsel that the court should consider that there are 32 packets of cocaine, and that the Defendant had not been frank to the police in the VRI, as he claimed in the VRI that all drugs seized were for his own consumption and that he did not have the means to pay his friend for the cocaine seized.  The Defendant had a job and $18,000-odd in his possession when arrested. 

11.After hearing counsels’ submissions, I decided that it is not necessary to have evidence called to decide the issue of self-consumption. 

12.In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, the Court of Appeal stated at paragraph 33 that:-

“…in drugs cases, where traffickers are renowned for their attempts to circumvent the rigour of the court’s stern approach to drug offences, sentencers will need to examine with particular case any assertion by a proved or self-confessed trafficker that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities; and they will have to bear in mind that the quantity accepted as having been intended for self-consumption carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true ‘mixed’ cases, the difference in sentence, if any, will be slight.”

13.And at paragraph 34 that, in determining the issue of whether a “significant portion” of the dangerous drugs was for self-consumption, the judge ought to have regard to the following:-

“The factors to be considered will include:

(a)  the quantity of drugs and, if known, their value;

(b)  the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c)  where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d)  the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e)  whether the defendant is an addict or is otherwise accepted to have been a habitual user of the drug in question;

(f)  the explanation given by the defendant following arrest;

(g)  the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h)  the defendant’s criminal record, if any, in relation to previous drug offences.”

14.I have considered the following factors in the resolution of this issue.  The CSD letter confirming the presence of cocaine in the Defendant’s urine at the time of admission into the Lai Chi Kok Reception Centre, the fact that he had been detained since arrest, and his previous conviction of possession of dangerous drugs.  There had also been a lack of paraphernalia associated with trafficking seized from the Defendant.  The location can be considered a public place, as the Defendant was in a taxi, and there were multiple small packets of cocaine, but these two factors are equally consistent with trafficking of all drugs seized and part of it being intended for self-consumption. 

15.The Defendant was employed, with a monthly salary of $30,000.  Although he explained in his VRI that he did not have the means to pay for the drugs, that he still owed drug money and that the cash found on him was borrowed from a friend, that does not mean he could not use part of his salary, when required, to pay for the drugs, which, according to him, would cost $5,000 to $6,000.  I therefore will accept that 2 grammes out of 5.44 grammes of cocaine were intended for his own consumption, and that the quantity for self-consumption is a significant portion of that seized.  Two grammes out of 5.44 grammes for self-consumption constitutes more than one-third. 

16.In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, at paragraph 19, Yeung VP said:-

“We are of the view that in drug trafficking cases, when all or 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% and 25% of the basic starting point. In determining the extent of discount in a particular case, the Court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

17.An arithmetic calculation of trafficking in 5.44 grammes of cocaine arrives at a starting point of 3.6 years’ imprisonment.  I am of the view that a discount of 15% from the starting point is appropriate for the proportion of drugs for self-consumption, making the reduced starting point of 3 years’ imprisonment.

18.The Defendant had pleaded guilty after the trial date had been fixed, yet it is still a timely plea before the trial commenced.  I will allow a one-fourth discount for the Defendant’s plea of guilty.  The Defendant is sentenced to 27 months’ imprisonment.