HKSAR v. Ng Tak Ho

DCCC 760/2021

[2022] HKDC 1091

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 760 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (1^st charge) and a charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (2^nd charge), and is so convicted.

Facts

2.At around 12:45 am on 22 April 2021, PC19698 (PW1)  was on patrol with his teammates.  He saw the defendant walking along Portland Street towards Waterloo Road, looking furtively.  As soon as the defendant saw PW1, he walked swiftly and then ran towards Waterloo Road.  Suspecting that he was in possession of dangerous drugs, PW1 and his teammates gave chase and intercepted the defendant near the junction of Pitt Street and Tung Fong Street. 

3.Upon search, the following items were found in the black pouch carried by the defendant, namely:-

(a)  1 plastic bag containing 3.7 grammes of a crystalline solid containing 3.66 grammes of methamphetamine hydrochloride (E1);

(b)  8 plastic bags containing a total of 30 grammes of a solid containing 27.2 grammes of cocaine (E2);

(c)  1 plastic bag containing 0.71 gramme of a solid containing 0.62 gramme of ketamine (E3); and

(d)  1 plastic bag containing a total of 1.6 grammes of a solid containing 1.58 grammes of cocaine (E4).

4.Upon body search, cash of $6,895 and a mobile phone with 2 SIM cards were found on the defendant.  The defendant was arrested and under caution, he said the drugs (E1-4)  were for his own consumption. 

5.In a subsequent interview, the defendant said under caution that he consumed 0.5 gramme of ICE and 1 to 1.5 grammes of cocaine per day.  He purchased the drugs (E1-4)  from an unknown person at a price of $15,000 shortly before his arrest and he worked as a transportation worker with salary of $700 per day.  The cash found on him was his earnings and he did not have a fixed place of abode. 

6.The street value of the ICE and the ketamine was estimated to be $2,024 while that of the cocaine is $37,225. 

7.At the material times, the defendant was in possession of E2 & E4 for the purpose of unlawful trafficking (1^st charge), and was in possession of E1 & E3 (2^nd charge).

Criminal Record

8.The defendant has 13 previous records involving convictions of 16 charges, including 8 relating to drugs, 4 of which is similar to 1^st charge and 3 similar to the 2^nd charge.  His last conviction was trafficking in dangerous drugs convicted on 9 May 2018 for which he was sentenced to 5 years and 4 months’ imprisonment.  He was last released on 15 September 2020. 

Mitigation

9.The defendant is aged 31.  He was educated up to Form 3 level. He is single and worked as a transportation worker at the time of arrest.  He lived together with his parents. 

10.Concerning the 1^st charge, it was said by defence counsel that Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 laid down the tariff for trafficking in heroin in R v Lau Tak Ming [1990] 2 HKLR 370 should also apply to trafficking in cocaine, and that for trafficking 28.78 grammes of cocaine as in this case, the sentencing starting point is slightly less than 77 months’ imprisonment. 

11.As for the 2^nd charge, defence counsel submitted that assuming the dangerous drugs in the 2^nd charge are also for the purpose of trafficking, applying the absurdity test, the total weight of ICE and cocaine being 32.44 grammes (amount of ketamine being ignored), following the guideline in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the sentencing starting point for trafficking 32.44 grammes of ICE is slightly less than 102 months’ imprisonment.  Assuming that all of 32.44 grammes is cocaine, according to the guideline in Lau Tak Ming, the sentencing starting point would be around 80 months’ imprisonment. 

12.Applying the conversion test, the defence counsel submitted that if one used the 28.78 grammes of cocaine as the base drug, applying the guideline in Tam Yi Chun, the 3.66 grammes of ICE would attract a sentence of 53.5 months, which is similar to the sentence imposed for trafficking 8.2 grammes of cocaine.  Thus, by adding the converted quantity of 8.2 grammes to the 28.78 grammes of cocaine, the total weight is 36.98 grammes of cocaine.  Following the guideline in Lau Tak Ming, the sentencing starting point is around 84 months. 

13.Defence counsel said if the ratio test is applied, the sentence would be 82 months’ imprisonment. 

14.He submitted that for the 2^nd charge, possession of dangerous drugs, the normal sentence is in the range of 12 to 18 months’ imprisonment. 

15.Defence counsel urged this court to consider the totality principle.  He referred this court to the case of 香港特別行政區 訴 王偉明, HCCC 411/2011 where the court in effect added only 1-month sentence to the possession charge in addition to the sentence for trafficking in dangerous drugs.

16.Defence counsel asked this court not to impose a sentence in excess of what the court would impose on the defendant had all the dangerous drugs seized on him been for trafficking purpose. 

Discussion

17.Before sentencing, this court has considered the mitigation submissions by defence counsel and the mitigation letter by the defendant. 

1^st Charge

18.On conviction upon indictment, the maximum sentence is a fine of $5 million and imprisonment for life. 

19.The court agrees, as submitted by defence counsel, that the appropriate sentencing starting point for trafficking 28.78 grammes of ‘Ice’ would be 76.9 months’ imprisonment. 

20.In calculating the final sentencing starting point, defence counsel has not taken into consideration the fact that the defendant is a persistent offender.  This is an aggravating factor in sentencing.  The defendant has 4 previous similar convictions.  In fact, he committed the present offence 7 months after his release from prison for a similar offence, for which the sentencing starting point is enhanced by 6 months’ imprisonment.

21.Personal background of the defendant seldom affords the defendant a sentencing discount when faced with conviction of trafficking in dangerous drug.  The sentencing starting point for the 1^st charge is therefore 83 months’ imprisonment. 

22.The defendant has pleaded guilty, for which he is entitled to full one-third sentencing discount.  He is therefore sentenced to 55 months and 10 days’ imprisonment for the 1^st charge. 

2^nd Charge

23.The maximum sentence for conviction upon indictment for this charge is a fine of $1 million and imprisonment for 7 years, subject to 54A of the Dangerous Drugs Ordinance. 

24.When sentencing cases of simple possession of dangerous drugs, two factors are of particular importance: the quantity of dangerous drugs involved and the risk that the dangerous drugs will get into the hands of others by access or distribution, ie latent risk. 

25.In the case of HKSAR v Wong Wai Wah, CACC 181/2017, the Court of Appeal referred to the case of HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 where the Court of Appeal held that the following three-step approach should be adopted when determining an appropriate sentence for an offender who is a bona fide user and convicted of simple possession of dangerous drugs (heroin or ICE).  For step 1, the judge should normally determine a sentence starting point between 12 to 18 months’ imprisonment.  For step 2, the starting point is increased or enhanced to take account of the latent risk factor to arrive at the total sentence.  For step 3, the total sentence is then adjusted to take into account of the mitigating factors, such as a guilty plea. 

26.In the case here, ignoring the 0.62 gramme of ketamine, the drug was 3.66 grammes of ICE in quantity.  Taking into consideration of the quantity of ICE, the consumption habit of the defendant and therefore his monthly expenses on dangerous drugs and his monthly income as claimed in his cautioned interview, the court considers that there is real risk of dissipation of the drugs in the 2^nd charge.  Accordingly, there will be 3 months’ enhancement on the sentencing starting point regarding latent risk.  The court will adopt a sentencing starting point of 21 months’ imprisonment for the 2^nd charge. 

27.The defendant has 3 previous similar convictions.  On this occasion, the court is not going to enhance the sentencing starting point for this offence.  The defendant is entitled to full one-third sentencing discount by reason of his guilty plea, bringing the sentence for the 2^nd charge to 14 months’ imprisonment. 

28.The 2^nd charge offence was committed at the same time of the 1^st charge offence.  Although the 2 offences both relate to dangerous drug, the nature of these offences are different.  As a result of the commission of the 2^nd charge offence, there is a variety of drugs involved in addition to that in the 1^st charge.  Commission of the 2^nd charge offence adds slightly to the culpability of the defendant in the 1^st charge. 

29.Defence counsel urged this court to consider the totality principle and give the defendant a total sentence less than had all the dangerous drugs seized been used for trafficking purpose.  This court agrees with this contention. 

30.However, one must not forget that had all the dangerous drugs been used for trafficking, there is an aggravating factor in sentencing, namely, the defendant trafficked a cocktail of drugs.  And further, in raising with this court the sentencing starting point, the defence counsel had not taken into consideration the fact that the defendant is a persistent offender of trafficking which amounts to an aggravating factor in sentencing. 

31.Considering the totality principle and the culpability of the defendant in the whole case, the court considers that the total sentence of 56 months is a just and proportionate sentence for the defendant in the case.  The court therefore orders that 21 days’ imprisonment of the sentence in the 2^nd charge shall run consecutive to the sentence in the 1^st charge.  The rest to run concurrently. 

32.The defendant is therefore sentenced to a total of 56 months’ imprisonment in this case.