HKSAR v. Ng Chi Wai

DCCC 886/2024

[2025] HKDC 1630

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 886 OF 2024

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REASONS FOR SENTENCE

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1.The defendant faces a Charge Sheet consisting of two charges as follows.

2.Charge 1 is Trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 9 March 2024, at the carpark entrance on Ground Floor, Harbour Centre Tower 2, No 8 Hok Cheung Street, Hung Hom, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 10.60 grammes of a solid containing 8.71 grammes of cocaine.

3.Charge 2 is Doing an act or a series of acts tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I(1)  of the Criminal Procedure Ordinance, Cap 221.

4.The defendant pleaded not guilty to Charge 1 but guilty to the alternative offence of Possession of a dangerous drug.  The prosecution did not accept the guilty plea resulting in a trial on the original charge.

5.The defendant pleaded guilty to Charge 2.  His sentencing on Charge 2 was adjourned until the end of trial relating to Charge 1.

6.After trial, I found the defendant not guilty of Charge 1 but guilty of the statutory alternative of possession of a dangerous drug.

Facts as admitted or found

7.On 9 March 2024 at about 22:34 hours, the defendant was acting furtively at the carpark of Harbour Centre Tower 2.  He looked around then entered the building via a gap in the entrance of the carpark.

8.At about 22:35 hours, plainclothes police officers on patrol intercepted the defendant and revealed their police identities.  They escorted the defendant to a nearby location to make enquiries.

9.During a search of the defendant, the defendant attempted to walk away but was stopped.  He continued to move around but was eventually pressed down on the ground.  It was noticed that the defendant was chewing something.  He was repeatedly asked to spit it out.

10.After some time had elapsed, the defendant spat out a bloodstained transparent bag containing 10.6 grammes of a solid containing 8.71 grammes of cocaine.

11.The defendant admitted that by chewing and attempting to swallow the bag of dangerous drug, he intended to pervert the course of justice.

Criminal record

12.The defendant has a clear record.

Antecedents

13.The defendant is aged 39 (38 at the time of the offences), educated to F4 level, worked as a driver earning a monthly salary of around $25,000.  The defendant is married with a daughter.  His other family members consist of his mother and three elder siblings.

Mitigation

14.Mr David Boyton and Ms Gretel Wong both of counsel mitigated on behalf of the defendant.  The following is a summary of the mitigation submissions.

15.Defence referred to para 17 of HKSAR v Mok Cho Tik [2001] 1 HKC 261 and submitted that:

(a)  The usual starting point is 12 to 18 months; and

(b)  The court needs to consider “latent risk”.

16.In relation to “latent risk”, defence referred to the 3-step approach in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 at 407F-H:

“Step 1: The judge should normally determine a starting point of between 1 year to 18 months’ imprisonment.

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

Step 3: The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”

17.Defence in particular drew my attention to a later paragraph in the judgment at 409B-C in relation to the second step:

“The second step involves the latent risk factor. It is apparent from all the circumstances that the risk was not a great one. The applicant was a heroin addict. He had no record for any offence of drug trafficking. He was employed and, on the evidence, it appears that he kept the drugs in his premises without other people knowing that he was doing so. We consider that the latent risk factor should not have attracted an additional sentence of more than 6 months…”

18.Defence pointed out that in that case, the Court of Appeal eventually adopted a starting point of 16 months enhanced by 6 months for slight latent risk which involved 34.33 grammes of heroin hydrochloride narcotics.

19.Back to the present case, defence emphasized that the latent risk should fall into the lower end of spectrum on the following grounds:-

(a)  Defendant has a stable income at all material times;

(b)  The absence of a previous trafficking record;

(c)  The quantity and packaging of the narcotic content did not indicate a high risk of dissemination of this hoard;

(d)  The quantity of the narcotic contents ie 8.71 grammes of cocaine is far less than that in Wan Sheung Sum; and

(e)  The drug was for self-consumption, and the defendant did not intend to share it with anyone.

20.Along the same lines, defence submitted that the present case should come into a lower bracket in the range between 12 and 18 months and attract a far lower enhancement than that in Wan Sheung Sum.

21.As disclosed in the DATC report, the defendant was born in the Mainland being the youngest among 5 siblings (one already passed away)  and he came to Hong Kong for family reunion in his early childhood.  He worked as a dim sum apprentice when he dropped out of school at Secondary 4.  He has abstained from drugs since arrest.

22.Around 10 years ago, the defendant decided to become a chauffeur with a more flexible work-time to cope with his newborn daughter.

23.The defendant committed the possession offence out of despair resulting from bad marital relationship.

24.Since arrest, the defendant participated in volunteer and church activities.  He has reconciled his relationship with his wife who demonstrated her forgiveness and love by her presence in every court hearing.  Defendant’s mother is also in court to give him support.

25.The defendant has heard the clangs of prison gate which was a wake-up call for him.

26.On Charge 2, defence submitted that the court can at its discretion impose any term of imprisonment and any amount of fine subject to the maximum sentencing jurisdiction of the court (see section 101I(5)  of the Criminal Procedure Ordinance, Cap 221).

27.Defence referred to Secretary for Justice v Lee Ying Tung [2023] 3 HKLRD 667 for general sentencing principles on the offence of Perverting the course of public justice including the identification of the three sentencing factors namely (a)  seriousness of the substantive offence to which the perverting relates; (b)  degree of persistence of offender’s conduct; and (c)  effect of offender’s conduct.

28.Defence submitted that there must be a degree of proportionality between the seriousness of the substantive drug charge and the perverting charge. Defence prayed in aid the sentencing approach of Judge Casewell in HKSAR v Lam Hon Sun Hanson DCCC 203/2017 at para 26.

29.Defence submitted that the act that the defendant committed was through panic and the attempt to destroy the drug was conducted in a rather amateurish way; that the panic and ineptness is evident by the way the defendant ended up cutting his mouth on the plastic wrappings while committing the offence.

30.Defence acknowledged that the plea to Charge 2 was not at the earliest opportunity, but several months before the scheduled trial.  Defence asked for 25% off from the starting point.

31.Defence asked that a substantial part of the sentence on Charge 1 be made to run concurrently with that on Charge 2 as they are concomitant of one another.

32.Defence submitted on behalf of the defendant one mitigation letter written in Chinese (with English translation)  by a preacher of a Christian organization.  The contents generally are that the defendant has taken part in volunteer and church activities since arrest.  The writer asked for a lenient sentence for the defendant so he may have a chance for reform.

33.Defence also submitted a number of certificates of appreciation[1] for volunteer activities undertaken by the defendant whilst awaiting trial.

Report

34.For the reason that the defendant has been convicted of possession of a dangerous drug, I called for a Drug Addiction Treatment Centre Suitability Report which returned with a conclusion that the defendant is not a drug dependant and therefore he is considered not suitable for admission to such a centre.

Sentence

35.I have borne in mind all the authorities that have been urged upon me.

36.On Charge 1, I will adopt 12 months’ imprisonment as the basic starting point.  As for the latent risk of dissemination, after considering the circumstances of the defendant, I do not assess the risk to be a high one.  As a result, I will simply add 3 months to arrive at the final starting point for Charge 1 of 15 months’ imprisonment.

37.On Charge 2, I agree that the starting point needs to be proportionate to that of the substantive charge to which the perverting relates.  In this case, the perverting took the form of attempting to destroy the evidence of possession of a dangerous drug.  The duration of the conduct was quite long in terms of minutes as could be evidenced by the CCTV footage I have seen in open court – the defendant was quite resistant to the police getting their hands on the dangerous drug.  In the end, about 1/4 of the purchase has gone astray and was unrecovered.

38.Bearing all these factors in mind, I adjudge an appropriate starting point to be 5 and 1/3 months’ imprisonment.

39.The defendant pleaded guilty to the alternative offence of possession of a dangerous drug in good time earning for himself the full 1/3 sentencing discount.  The defendant indicated his guilty plea to Charge 2 late but not very late.  I will grant him 25% sentencing discount as urged.  There are no other mitigating factors of weight to justify any further sentence reduction.

40.The commission of the offence subject of Charge 2 does not necessarily follow that of Charge 1.  I do not consider them to be concomitant to one another.  In principle, their sentences ought to run consecutively to one another subject only to totality which I will bear in mind when determining the final sentence.

(Defendant, please stand)

41.For the alternative offence to Charge 1 namely possession of a dangerous drug, the sentence is 10 months’ imprisonment.

42.For Charge 2, the sentence is 4 months’ imprisonment.

43.I order that 2 months of the sentence on Charge 2 are to run consecutively to the sentence on the alternative offence to Charge 1.  The final sentence is therefore one of 12 months’ imprisonment.