HKSAR v. Ng David

DCCC 758/2020

[2021] HKDC 512

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 758 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance[1] (charge 1); one charge of possession of a Part 1 poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance[2] (charge 2); and one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance[3] (charge 3).

2.Sentenced was adjourned for the defendant to receive a mitigation letter from Reverend McKnelly, who is well known for his help in the rehabilitation of drug addicts. Unfortunately, despite two requests, the defendant is still waiting to receive the letter from Reverend McKnelly.  The defendant asks the court to sentence him today and not to adjourn sentence again.

3.Full particulars of the offences are set out in the amended summary of facts admitted by the defendant on 31 March 2021.  In summary at around 1210 hours on 6 June 2020 PC 26758 and WPC 27763 were patrolling in Tsim Sha Tsui when they spotted the defendant sitting in private car WA 9128 which was parked outside Ground Floor of Nos. 26-38 Cameron Road. 

4.The defendant was sitting in the driver’s seat with the engine on.  The police officers approached and asked the defendant to show his identity card and driving licence.  The defendant was unable to produce a valid driving licence. 

5.PC 26758 asked the defendant to alight from the car.  In the presence of the defendant PC 26758 then searched the car.  In the armrest between the driver’s seat and front passenger seat PC 26758 found a red first-aid pouch containing four transparent plastic bags; one hundred and eighty-five empty re-sealable plastic bags and one digital scale.

6.The four transparent plastic bags contained:

(i)  13.8 grammes of a solid containing 11.5 grammes of ketamine;

(ii)  6.04 grammes of a solid containing 2.77 grammes of cocaine;

(iii)  4.24 grammes of a powder which did not contain any dangerous drugs; and

(iv)  5.55 grammes of a powder containing phenacetin, a Part 1 poison.

7.PC 26758 found on the front passenger seat a black cross bag containing two transparent plastic bags containing a total of 6.93 grammes of a crystalline solid containing 6.77 grammes of methamphetamine hydrochloride (“ice”); one tissue paper wrapping containing 0.08 grammes of herbal cannabis; one paper packet containing 0.11 grammes of a crystalline solid containing 0.11 grammes of ice and one black spoon[4].

8.The estimated street value of the dangerous drugs as in June 2020 was $6,403 for the ketamine; $17,776 for the cocaine; $3,809 for the ice and $18 for the herbal cannabis. 

9.Under caution the defendant claimed the drugs were for his own consumption and that the money found on him was his earnings from work.

10.The police also found on the defendant two mobile phones, and $10,741.30 cash. 

11.The Transport Department confirmed that the defendant’s driving licence had expired on 11 August 2019.   

Mitigation

12.In passing sentence, I have carefully considered the written and oral submissions of Mr Lee on behalf of the defendant who is 40, single, lives with his mother and is a transportation worker[5].

Guidelines

13.In HKSAR v Tam Yi Chun the Court of Appeal recast the sentencing guidelines for trafficking in ice[6].  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

14.The courts have equated for sentencing purposes cocaine with heroin[7].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[8].  The starting point after trial where the quantity of narcotic is up to 10 grammes is within the range of 2-5 years’ imprisonment. 

15.In Secretary for Justice v Hii Siew Cheng[9]the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years. 

16.There are guidelines for cannabis however taking into account the very small quantity of cannabis, I agree with Mr Lee this should be disregarded in calculating the sentence the small quantity of cannabis not adding to the culpability of the defendant in trafficking in ice, cocaine and ketamine[10]. 

Starting point

17.Adopting the “individual” approach to sentence based on quantity alone the starting point for trafficking in 6.88 grammes of ice would be 5 years and 9 months’ imprisonment; for 2.77 grammes of cocaine would be 2 years and 10 months’ imprisonment and for 11.50 grammes of ketamine just less than 4 years and 1 month imprisonment.

18.Applying what has been referred to as the “absurdity test” a starting point of 12 years and 8 months’ imprisonment is clearly excessive for if all the drugs were ice the starting point based on quantity alone would likely be just under 7 years and 9 months’ imprisonment. 

19.I am satisfied that the “combined” approach to sentence is appropriate and agree with Mr Lee that ice should be taken as the “base” drug to calculate the starting point[11]. Taking ice as the base drug I adopt a starting point of 5 years and 9 months’ imprisonment.

20.Applying the “conversion test” a sentence of just over 6 years and 10 months would be arrived at when converting the ketamine to ice.  The conversion test however excludes a conversion of the cocaine to ice because as Mr Lee correctly points out the corresponding term of imprisonment is less than the minimum length of imprisonment under the guidelines for ice[12].

21.I agree with Mr Lee in applying the ratio test the overall starting point would be about 5 years and 8 months which is just less than the base starting point for ice[13].

22.Taking all these matters into account in calculating a reasonable and realistic increase to the starting point together with the aggravating factor that the trafficking involved three serious dangerous drugs, I increase the starting point by 1 year to 6 years and 9 months’ imprisonment[14].

23.In R v Lau Tak Ming the Court of Appeal said that within the suggested bands a sentencing judge may properly take into account previous history of narcotic offences[15]. 

24.The defendant has one previous conviction for trafficking in dangerous drugs in 2016 when he was sentenced to 4 years’ imprisonment.  I note from the reasons for sentence in that case the defendant was also found inside a private car trafficking in ice, cocaine and ketamine. 

25.The defendant also has convictions for possession of dangerous drugs in 2003, 2011 and 2014 and for possession of Part 1 poison in 2016. 

26.I further enhance the starting point by 3 months to 7 years’ imprisonment[16].

Own use

27.The defendant claims that half of the ice and half of the cocaine was for his own consumption[17].

28.Mr Lee says the defendant has been a drug addict for quite some time and that his daily dose of ice was between 0.3 to 0.5 gramme and for cocaine was between 0.2 to 0.4 gramme[18].   

29.In support Mr Lee relies on the result of a urine test taken after the defendant’s arrest on his admission to Lai Chi Kok Reception Centre which was positive for amphetamine and cocaine.  A copy of the urine test result has been submitted to court.

30.Mr Lee also relies on the defendant’s criminal record which as noted shows that the defendant was convicted of possession of dangerous drugs in 2003, 2011 and 2014. The defendant was sentenced to the DATC in 2014. 

31.The last conviction was for trafficking in dangerous drugs in 2016 when the defendant was sentenced to 4 years’ imprisonment.  As noted already the defendant was also found inside a private car trafficking in ice, cocaine and ketamine.  On that occasion the defendant was given a discount in sentence for his claim part of the ice and part of the cocaine were for his own consumption. Having read the reasons for sentence I must say that was a very generous discount. 

32.No explanation has been forthcoming as to why the dangerous drugs were kept in the car together with a digital scale and a large quantity of empty plastic bags. Nor has the court been told any details about when the defendant came into possession of the dangerous drugs.   

33.As indicated in court I do not accept the mere assertion that half of the ice and half of the cocaine was for the defendant’s own consumption.  Mr Lee having taken instructions from the defendant confirms that the defendant does not wish to give evidence in support of his claim that half of the ice and half of the cocaine was for his own consumption. 

34.Taking into account, inter alia, that the defendant was arrested in a car and not at his home, the quantity of the dangerous drugs and that the dangerous drugs were found together with one hundred and eighty-five empty re-sealable plastic bags and a digital scale, I reject the assertion that half of the ice and half of the cocaine was for the defendant’s own consumption. 

35.The urine sample collected on admission to Lai Chi Kok Reception Centre being positive for amphetamine and cocaine, I am however prepared to accept that a small part of the ice and the cocaine may have been for the defendant’s own consumption. 

36.In deciding how much weight should be attached to the fact part of the ice and the cocaine may have been for own consumption, I have considered the decision in HKSAR v Wong Suet Hau[19].

37.In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[20].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

38.In HKSAR v Cheung Wai Man the Court of Appeal said that in determining whether there was a significant proportion the sentencing court must have credible and reliable information and material[21]. 

39.I am not satisfied credible and reliable information and material has been placed before the court to show that a significant proportion of either the ice or the cocaine was for the defendant’s own consumption.

40.Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied that the starting point should be reduced by 3 months to 6 years and 9 months’ imprisonment. 

41.Giving the defendant full credit for his plea of guilty reduces the sentence to 4 years and 6 months’ imprisonment.

Possession of Part I poison

42.The phenacetin is in powder form.  No information has been placed before the court as to what is phenacetin save that today Ms Lee submits an extract from a medical dictionary.

43.I am not told whether the poison being in powder form can be mixed with any of the dangerous drugs and if so whether the dangerous drugs are thereby more potent or conversely provide a risk to the user.  In either of those circumstances the possession of the poison may be an aggravating factor in sentence.  

44.Mr Lee says he has no instructions from the defendant to tell the court anything about the possession of the poison. 

45.Taking into account that the possession was in the street and not at home and that the defendant has a previous similar conviction in 2016 when he was sentenced to 4 months’ imprisonment, I am satisfied that a custodial sentence is appropriate. I am satisfied the proper starting point after trial is 6 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment. 

Driving without a valid driving licence

46.Mr Lee informs the court that the defendant was unable to renew his driving licence by reason of his inability to settle outstanding penalty tickets[22].    

47.Taking into account that the defendant has held a driving licence for ten years and has no previous conviction for driving without a valid driving licence, I am satisfied a financial penalty is appropriate. 

Totality

48.Without any information about the part 1 poison I am satisfied a concurrent sentence is appropriate. 

49.The defendant is convicted and sentenced as follows:

Charge 1 – 4 years and 6 months’ imprisonment.

Charge 2 – 4 months’ imprisonment concurrent to charge 1; and

Charge 3 – fined $1,000 which the defendant consents to be taken from the monies found on arrest.