HKSAR v. Ngan Wai Man

DCCC 56/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 56 OF 2009

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Reasons for Sentence

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The charge and facts

1.The Defendant pleads guilty to a charge of trafficking in a dangerous drug.  At 2:46 a.m. of 27 October 2008 the police were on vehicle patrol outside No. 481 Kwun Tong Road bounding towards Ngau Tau Kok when the Defendant and 2 males saw them.  They tried to run towards Yue Man Square and Hip Wo Street along Kwun Tong Road.  He was finally intercepted at the exit of Kwun Tong Jockey Club Health Centre.  He threw a plastic bag containing 2 bags of substance onto the ground of the Health Centre through a gate. 

2.The police found an electronic scale from one of the males and 50 resealable plastic bags from the other male. 

3.Under caution, the Defendant said that he had obtained the 2 bags of substance, which was ketamine, in Mongkok for $1,800 shortly before.  He then went to meet up with the 2 males, who were his friends, to see a movie.  He gave the scale and the resealable plastic bags to them without telling them that he was possessing ketamine.  The ketamine was partly for self-consumption and partly for treating his friends without receiving payment.  The scale was for weighing ketamine whereas the resealable plastic bags were for containing ketamine for ease of carriage. 

4.The Government Chemist confirmed that one of the 2 bags contained 13.40 grammes of a  powder containing 9.53 grammes of ketamine whereas the other bag contained 13.86 grammes of a powder containing 10.20 grammes of ketamine.  The total was 19.73 grammes of ketamine.  The electronic scale contained traces of a powder containing ketamine. 

The Defendant’s circumstances

5.The defendant is now 26 years old.  He is single and lives with his parents and younger sister.  He has been a ketamine addict or 2 years.  He was sentenced to 16 months’ imprisonment for a similar conviction on 8 December 2008 (STCC 6133/2008).  From the information I obtain from Shatin Court, it was a case of trafficking in 26.16 grammes of ketamine on 20 May 2008.  He was caught red-handed selling ketamine for $1,000.  I am told by his solicitor that he committed the present offence whilst on bail for that offence.    

Principles of sentence

Sentencing ketamine traffickers

6.On 6 June 2008, the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 laid down new sentencing guidelines for trafficking in ketamine as follows:

(1)  up to 1 gramme – within the sentencer’s discretion;

(2)  over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)  10 to 50 grammes – 4 to 6 years’ imprisonment;

(4)  50 to 300 grammes – 6 to 9 years’ imprisonment;

(5)  300 to 600 grammes – 9 to 12 years’ imprisonment;

(6)  600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7)  over 1000 grammes – 14 years upwards. 

Social trafficking

7.His solicitor submits that part of the ketamine was for sharing with friends without receiving payment.  In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, at 83 – 85, Stuart-Moore V-P addressed the issue of “social trafficking” put forward in mitigation: 

47.  We have cited these decisions from the English Court of Appeal to demonstrate what we consider to be the inadvisability of having a blanket policy, that in cases where no financial gain is disclosed as the motive for trafficking in dangerous drugs, a reduction in sentence should almost inevitably follow. In our opinion, adopting present sentencing practice in Hong Kong, none of the English cases we have cited, would have justified any departure from the guideline tariffs, which would normally be imposed for similar offences committed here. It is the very fact of supply or, in the case of couriers and storekeepers, making possible the supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of trafficking and the motives behind them will, in our view, only serve to undermine the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked.

48.  It has often been said that sentencing is an art. Judges are expected to use their experience, assisted by a large measure of common sense, to decide whether a distinction can properly be drawn between a trafficker who can genuinely advance mitigation that no profit motive was involved in the small supply of drugs to a friend, and others who carry a supply to give to their friends as and when the occasion may arise. In the former category, there might, for example, be the individual who purchases a small quantity of a dangerous drug for recreational use and gives part of it to his partner, who has previous experience of the drug, to consume at a social event. This plainly would fit, we suggest, into the lowest bracket of sentence for trafficking. It is quite a different matter, taking the example in the latter category, for a trafficker, who sometimes uses drugs, to carry or store a supply of drugs to give to his friends or acquaintances as and when the occasion should arise. Firstly, it goes without saying that such traffickers pose exactly the same threat to society as people who peddle their drugs for gain. Either way, the drug abuser is supplied with drugs, with the same, potentially dangerous impact, resulting from the supply. Secondly, the bulk of the drugs would, in such an example, almost certainly have been established to be intended for trafficking and, whilst the absence of a profit motive, inherently unlikely though this must be in such a scenario, might slightly reduce the trafficker's moral blameworthiness, we do not consider that this would provide mitigation justifying any specific discount.

49.  It has to be borne in mind that the evil behind all aspects of trafficking in drugs, which the courts have a duty to deter, is ultimately the supply of dangerous drugs to the public, whether or not this is done for financial gain. Looked at in another way, we believe that the major concern of the law-abiding community in Hong Kong, aware of the immense harm and suffering caused by drugs and by those who are engaged in trafficking them, is principally directed at the availability of drugs which traffickers make possible by their activities rather than the profits which traffickers are able to make from what they have done. By way of example, the parents whose son or daughter starts to abuse drugs, are unlikely to have any particular interest in the trafficker's motive for supplying those drugs; it is the fact that their offspring has been supplied with the drugs which will, justifiably, be the object of their concern and it will be no consolation to such parents to be told that the supply came from a "friend" who had no financial motive when handing over the drugs.

50.  The courts have a duty to keep these concerns uppermost in mind when deciding the appropriate level of sentence for drug traffickers, whether or not they have profited by their activity.

51.  In our opinion, while some of the "social" or "non-commercial" trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The "friend" who starts off or perpetuates another's abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.

Committing an offence whilst on bail for another offence

8.In HKSAR v Yuen Gang-shing Cr App 303/ 1997, the Deputy Judge adopted a starting point of 7 years’ imprisonment on the ground that the 1 year on top of the 6 years was due to the applicant’s having committed the offence whilst he was on bail.  In upholding the sentence, Liu JA said:

5.  Commission of any offence whilst on bail is unquestionably an aggravating factor to be taken into account as did the Deputy Judge.

9.In HKSAR v Ngo Wai-kuen Cr Apps 191 & 334/ 2004, the applicant was put on bail for the offence of possession of a dangerous drug (Charge 1).  She then committed the offence of possession of a dangerous drug (Charge 2) and the offence of keeping a divan (Charge 3).  Stuart-Moore VP said:

9.  Each offence was committed on a wholly separate occasion.  Indeed, it is a significant aggravating feature that the second and third offences in the sequence were committed whilst the applicant was on bail. 

Totality

10.His solicitor asks me to consider passing concurrent sentence based on totality in view of his previous sentence for which he has been serving. 

11.In R v McKechan [2004] EWCA Crim 212, David Clark J said:

5.  The principle of totality, that is the principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending …

12.In HKSAR v Zhen Futing Cr App 509/2003, the applicant was charged with two offences of possession of arms without a licence, two of possession of offensive weapons, and one of resisting a police officer in the due execution of his duty.  Stock JA said:

18.  Judges must always sentence accurately for each particular offence and having done so, only then address the question of totality.

13.In Attorney General v Cheung Pit-yiu CAAR 11/ 1988, Cons VP explained the nature of concurrent sentences:

6.&nbspl;&nbspl;This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly be said to have been committed in the course of a single transaction. That can hardly be said of offences involving the possession of drugs, as the judge below correctly believed, on occasions which occurred in separate months. We agree therefore with the submission of Mr. Cross, who now appears for the Attorney General, that the concurrent sentences in fact passed below would he wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishment should be imposed. 

14.In R v Yau Kwok-tung [1987] HKLR 782, the Applicant was convicted of two counts of handling stolen goods and one count of robbery.  He was sentenced to 2 years imprisonment concurrent on each count of handling stolen goods, and to 4 years’ imprisonment on the robbery charge consecutive to the 2 years’ sentence.  That was a total of 6 years’ imprisonment.  On appeal, Roberts CJ said:

The earlier transactions, relating to the handling of stolen goods took place about 2 and 4 weeks before the robbery and were totally unconnected with it. We see no reason why a Judge should not, in such circumstances, order sentences to run consecutively. (at 783)

15.In HKSAR v Woo Chung-hing Cr App 19/ 2002, the applicant committed two distinct and separate offences of trafficking on different days.  Lugar-Mawson J, sitting as an additional judge in the Court of Appeal said, at para. 9, that he could “see no reason why the Judge should not have passed wholly consecutive sentences on the Applicant.”

The sentence I pass

16.The drug in question falls within the range of 4 to 6 years’ imprisonment.  ketamine.  The electronic scale and the resealable plastic bags were no doubt paraphernalia for systematic and precision packing to facilitate a rather large circle of users.  Based on Stuart-Moore V-P’s observations in Wong Suet Hau (supra), I do not think the Defendant, who possessed such quantity of ketamine, which could not be regarded as small, and paraphernalia can claim discount for such social trafficking.   I take a starting point of 4 years 6 months.  Because of his plea of guilty, I reduce it to 3 years.  There are no other mitigating factors.  This is the sentence I pass. 

17.Whilst it can be said that the Defendant shall receive some favourable adjustment on totality of sentence based on the principle put forward in McKechan (supra) and  Zhen Futing (supra), this must be offset by his commission of the present offence whilst on bail for the previous trafficking as stated in Yuen Gang-shing (supra) and Ngo Wai-kuen (supra).  Therefore, I make an order that the sentence of today shall be fully consecutive to the sentence of STCC 6133/ 2008.