HKSAR v. Ng Tsz Fai

HCMA001010/2001

HCMA 1010/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1010 OF 2001

(ON APPEAL FROM ESCC 1998 OF 2001)

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Coram: Deputy High Court Judge Gill in Court

Date of Hearing: 4 December 2001

Date of Judgment: 4 December 2001

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J U D G M E N T

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1.On 27 August 2001, the appellant, a male of 23 years, appeared before HA Mierczak Esq., magistrate and pleaded guilty to two charges of trafficking in dangerous drugs, in each case a paper packet of ketamine hydrochloride. The amount of ketamine in the first charge was 0.41 grammes and in the second 0.32 grammes.

2.Having pleaded guilty, the appellant admitted the prosecution's summary of facts which recorded that two WPCs posing as psychotropic drug users attended the Focus Bar and Disco in Gloucester Road, Causeway Bay. There they met the appellant who offered to supply the first of the 2WPCs some ketamine. She agreed and he went off and came back and gave her a small packet free of charge. That proved to contain the ketamine the subject of the first charge. He made the same proposal to the second WPC. When she agreed he went off, came back returning with another packet. This time he charged and was paid $100. This packet contained ketamine the subject of the second charge.

3.Noting that the appellant had a clear record and having regarded to his age, the magistrate called for a background report and a Detention Centre report and remanded him in custody for the purpose for 14 days. On 10 September, having established the appellant was fit for detention at the Detention Centre, the magistrate sentenced him to that effect. He now appeals that sentence.

4.The perfected grounds of appeal are as follows:

"(1) the learned magistrate unduly over-emphasized the fact of notoriety of the Focus Bar and Disco being the prevalent outlet for trafficking in ketamine when sentencing the appellant to the Detention Centre. In so doing, the learned magistrate failed to give sufficient weight to the circumstances of the case as well as the personal circumstances of the appellant.

(2) The learned magistrate failed to give sufficient regard to the fact that this offence was a technical offence of trafficking and that the appellant was not there to make profit but rather stupidly he was there trying to appeal to the undercover female officers. This can be seen by the fact that for the first of the undercover officers it was offered and given for free and they had exchanged telephone numbers. It was a foolish act of cultivating favour of the opposite sex rather than the hard-line criminal of trafficking in dangerous drugs. In the premises, the sentence was manifestly excessive in the circumstances of his case."

5.In determining whether the sentence was manifestly excessive, my first consideration is that the offence of trafficking in dangerous drugs carries with it the maximum sentence of life imprisonment which demonstrates society's abhorrence for this activity.

6.The second is to consider the nature of the drug the subject of the charges, namely, ketamine. Ketamine is a relatively recent addition to the ranks of what are classified as dangerous drugs in the Dangerous Drugs Ordinance. It is one that is generally known as a designer drug, popular among young abusers and commonly available at discos and the like. According to statistics put before Bokhary J, who dealt with a similar appeal in HKSAR v Chu Ching Tak HCCC 164/2001, last year 44.3% of all newly reported Hong Kong drug abusers below 21 took ketamine, that being a lower percentage than those who took ecstasy, which was 62.7%, but above those taking ICE 9.6%, heroin 10.6% and cannabis 19.9%. The judge accepted as reliable expert evidence that ketamine is less dangerous than ICE but similar to, if not more dangerous than, ecstasy. She concluded in the light of that that the appropriate guidelines to follow are those laid down for trafficking in ecstasy by the Court of Appeal in HKSAR v Lee Tak Kwan [1998] 2 HKC 371. I respectfully agree with her and adopt that approach.

7.Like all guidelines cases for dangerous drug trafficking, the court recognized the primary determining factor to be the quantity of drugs the subject of the charge. The lowest band is where the total weight is less than 25 grammes, warranting a sentence entirely within the discretion of the sentencer. By way of reference, the next band is where the drugs weigh between 25 and 400 grammes; the appropriate sentence according to that guideline is one of between 2 and 4 years.

8.The third matter to consider is the approach that the magistrate adopted in sentencing the appellant. Having called for reports, the magistrate noted the favourable aspects of the appellant's background. He had a hitherto clear record. After an average performance in school he had achieved qualifications in automotive engineering and has been employed by Jaguar for 4 years. He comes from a close knit, supportive family; he is a filial son. Both parents were shocked to find their son had committed so serious an offence, it being out of character. But the magistrate went on to note that were the appellant an adult (by which he meant an adult too old to be considered for Detention Centre), he would have considered a starting point of 6 to 9 months imprisonment; clearly a sentence that falls within the Lee Tak Kwan guidelines. It was urged upon him that the appellant should be dealt with non-custodially. In my experience that is a course seldom adopted for so serious an offence as drug trafficking and in my view correctly so.

9.I turn to the specific grounds for appeal.

10.The magistrate was entitled to regard the Focus Bar and Disco as a black spot for trafficking in ketamine calling upon his professional experience in that regard. It seems to me and I so find that he neither added too much weight for that nor gave insufficient weight to the personal circumstances of the appellant. As to the circumstances of the offence, I find nothing technical about how the appellant was caught trafficking. An example of technical trafficking might be where a user is caught with drugs part of which he is to share with another, or importing drugs purely for his own use. In this case the appellant approached his targets on two occasions, offered to supply and then did so, from a pre-arranged source. That he chose not to charge one customer is neither here no there.

11.Before me today Mr Wu urges upon me to consider the sentence of a Community Services order subject, of course, to the appellant being found suitable for the programme. In pursuing that proposal, he has said to me all that can be said in a full, articulate and helpful submission. But in my view the sentence of a period of detention in a Detention Centre, given all the circumstances of the case including the personal circumstances of the appellant, was an entirely proper one. An appellate court will interfere with the sentence imposed at first instance only if it is found to be manifestly excessive or wrong in principle. I find this sentence falls into neither category.

12.The appeal is accordingly dismissed.

Representation:

Mr P K Madigan, SGC, for Director of Public Prosecutions

Mr P Wu, instructed by Messrs Louis K Y Pau & Co, for the Appellant