COURT: Here we have two case numbers, we have one defendant who pleaded guilty at the earliest opportunity and one who has been convicted after trial, however, I intend to deal with sentencing together.
The defendant of HCCC 202/2022, Mr Ng Siu-chun pleaded guilty to one count of trafficking in dangerous drugs and one count of possession of dangerous drugs on 28 November 2022 in the Magistrates’ Court and was committed to the Court of First Instance for sentence. He confirms his plea and admission of the Summary of Facts.
Mr Fong Kin-ching of HCCC 201/2022 pleaded not guilty and was convicted after trial of trafficking in dangerous drugs with Ng Siu-chun, Charge 1. He was acquitted of Charge 3 in that case, assaulting a police officer in the due execution of his duty.
On 25 March 2021, both men were arrested when a drug warehouse was raided by police at Room 2408, Leung Shui House, Leung King Estate, Tuen Mun. The police were watching this premises and when the door opened, an undercover police officer made his way in to find Ng, Fong and a third man, Leung Ka-yiu inside this room.
Leung was also charged with trafficking dangerous drugs with Ng and Fong and pleaded not guilty with Fong, both men were tried together and a jury unanimously acquitted Leung of trafficking in dangerous drugs.
On a table in Room 2408 were ‘Ice’ pipes or bottles fashioned for the purposes of inhaling dangerous drugs, some cocaine, some transparent resealable plastic bags and electronic scales; paraphernalia associated with weighing and repackaging drugs for the purposes of trafficking.
PW1 was the first officer inside when he barged in when the door was opened by Leung. There was a struggle involving all the men with PW1 but Fong was alleged to have punched him and kneed him with force. All three men were subdued and arrested after a struggle, a fierce struggle.
PW1 and Fong were sent to hospital with injuries. As I have said, Fong was charged with assaulting PW1, a police officer but acquitted by the jury after trial. The premises were then searched. In one box, the police found a large bag of dangerous drugs, the ‘Ice’ of Charge 1.
In a separate box, the police found all the rest of the drugs, other than small amounts of cocaine found in a transparent resealable plastic bag on the table. On the bed was $2,612.50. On Ng, the police found $160. On Fong, the police found $137,968 and seized it.
Ng was arrested, cautioned and remained silent. He was subsequently interviewed and under caution said he was acquainted with the men in his room. He was there waiting for the tenant himself, he did not know about the drugs in the boxes. He had consumed some drugs with the paraphernalia on the table, the cash on the bed did not belong to him and he did not have a fixed bode but hung out often at Room 2408.
In August 2022, at the request of Ng, Ng was interviewed again and this time said all the drugs in the premises belonged to him. The other two men, Fong and Leung knew nothing of the dangerous drugs and were innocent. He subsequently gave evidence in the trial of the other two men found in the room and repeated that version of events.
Ng admits having in his possession 88 millilitres of a liquid containing traces of methamphetamine found in an ‘Ice’ bottle or pipe seized from the table. He admits having consumed or inhaled drugs by this method in the premises just prior to his arrest. This is Charge 2.
Ng agreed that the estimated street value of all the dangerous drugs found in the premises was just under $329,000.
Mitigation
Ng is now 44 years old and came to Hong Kong in 1995. Prior to his arrest and after his release from his last term of imprisonment, he had been working as a transportation worker earning approximately $12,000 a month. He is not a man with a clear record, he has four previous convictions, all drug related. Two relate to trafficking in dangerous drugs.
In 2010, he was sentenced to 16 months’ imprisonment by Tuen Mun Magistracy for trafficking in dangerous drugs and in 2014, he was sentenced by the High Court to 8 years’ imprisonment for the same offence. Mr Cheung has said all he can say on behalf of the defendant in mitigation. His best mitigation is his plea of guilty at the earliest opportunity.
Fong is now 48 years old and single. He has a previous conviction but way back in 1993 for robbery. He has no drug-related convictions. Today I have heard his family background as well as his employment and business background. Ms Yip has said all she can say on his behalf. There is not much she can say after Fong was found guilty by a jury.
Trafficking guidelines
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take such as assessing the gravity of the offence and applicable guideline; identifying the defendant’s role; where within the guideline the defendant should lie; any aggravating factors; any mitigating factors; and lastly passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drugs seized. Here there are four types of drugs but the bulk and most serious drug is the ‘Ice’.
The sentencing guidelines for ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the starting point for trafficking between 300 grammes to 600 grammes of methamphetamine hydrochloride will be between 15 to 20 years’ imprisonment. Mathematically speaking, the total weight of 530.69 grammes of ‘Ice’ here alone will attract a starting point of 18 years and 10 months’ imprisonment.
The sentencing guidelines for cocaine is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming which are directed at trafficking heroin are equally to be applied in cases of trafficking cocaine.
The starting point for trafficking up to 10 grammes will be between 2 and 5 years’ imprisonment. Mathematically speaking, the total weight of 0.68 grammes of cocaine here alone will attract a starting point of 2 years and 2 months’ imprisonment.
The sentencing guidelines for ketamine is found in the authority of Secretary for Justice v Hii Siew Cheng and the starting point of trafficking between 1 to 10 grammes of ketamine will be between 2 to 4 years’ imprisonment. Mathematically speaking, the total weight of 7.21 grammes of ketamine here alone will attract a starting point of 3 years and 5 months’ imprisonment.
There is also 30.4 grammes of herbal cannabis which according to the old guidelines for trafficking herbal cannabis would be a short sentence of a few months and therefore, I intend to disregard this drug for the purposes of sentencing today.
I will take into account the three types of drugs I have referred to above, a cocktail of drugs. The individual approach would be unfair here. I agree with Mr Cheung for Ng that the combined approach should be adopted here using ‘Ice’ as the base drug as it is the highest quantity. I intend to convert the cocaine and ketamine into ‘Ice’ to find a mathematical starting point. Therefore, I calculate a starting point to be one of 18 years and 10 months’ imprisonment.
The second step of the six steps is to assess each defendant’s role and culpability based upon the evidence. I have heard Ng give evidence in the trial of Fong and Leung and taken into account what he said.
He agreed that the Room 2408 was a drug storeroom and that he would consume some but sell the rest. He would deliver drugs downstairs to customers as and when required. That makes him an actual drug trafficker, not just a courier or a storekeeper.
As for Mr Fong, there is no evidence of his role. I cannot take his role any higher than that of a storekeeper here. He had a large amount of cash on him but as I told the jury, this does not prove anything against this defendant.
This leads me to the third step of where within the guidelines each defendant should lie, what is his role and culpability. Taking into account Ng’s role of an actual drug trafficker, I intend to take a starting point of 19 years and 6 months’ imprisonment. For Fong, I would take the mathematical starting point of 18 years and 10 months.
The fourth and fifth steps require me to consider whether there are any aggravating or any mitigating factors. For Fong, there is no mitigating or aggravating factors. For Ng, the only mitigating factor is his plea of guilty at the earliest opportunity.
I am of the view that there is an aggravating factor that applies to Ng and that is the fact this is his third conviction for trafficking in dangerous drugs and he had only been released from prison some two years prior for his last transgression. That was a significant sentence of 8 years’ imprisonment imposed by the Court of First Instance. I intend to increase that starting point of 19 years and 6 months’ imprisonment by a further six months to one of 20 years’ imprisonment for Ng.
As Ng pleaded guilty at the earliest opportunity, he is entitled to a discount of one-third from that starting point. After that discount is applied, he is sentenced to 13 years and 4 months’ imprisonment for Charge 1.
There is no mitigation for Fong that allows me to depart from that starting point I find appropriate. Therefore, he is sentenced to 18 years and 10 months’ imprisonment for Charge 1.
The last step is to stand back and look at the overall sentences in order to ensure that they are fair, just and balanced in all of the circumstances of not only this offence but also the defendants’. Those sentences are not so harsh they are unfair, imbalanced or unjust. I see no reason to deduct any of those sentences in consideration of this last step.
Accordingly, I repeat Ng is sentenced to 13 years and 4 months’ imprisonment for Charge 1 of HCCC 202/2022. Fong is sentenced to 18 years and 10 months’ imprisonment for Charge 1 of HCCC 201/2022.
As for Charge 2 for Ng only, possession of traces of methamphetamine, I have considered HKSAR v Mok Cho Tik [2001] 1 HKC 261 and the Court of Appeal’s view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.
There is also the latent risk factor to consider, that is the latent risk to society when drugs are at large. In a sense that they are possessed by a drug user who here admits he dealt with and delivered drugs as well as shared drugs with others in his drug storeroom. Latent risk factor can justify an enhancement to a starting point. For this charge of possession of dangerous drugs, I would take a starting point of 2 years’ imprisonment.
After a one-third discount is applied, Ng is sentenced to 1 year and 4 months’ imprisonment for Charge 2 of HCCC 202/2022. Taking into account the facts of the case and the totality principle, I will order the sentences of Charges 1 and 2 to be served concurrently for Ng. Therefore, Ng is sentenced to a total of 13 years and 4 months’ imprisonment for HCCC 202/2022.