HKSAR v. Nam Man Ngai

DCCC 614/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 614 OF 2009

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Reasons for Sentence

1.The defendant pleaded guilty to 2 counts of trafficking in relation to 120.54 grammes of ketamine.

2.The defendant was stopped and searched by the police in the late afternoon of 12 April 2009. He was found to have a bag of 10.23 grammes of ketamine in his trousers’ pocket. When cautioned, the defendant said he could not finish all the ketamine he had so he had decided to sell some to his friend. In the subsequent house search 5 more plastic bags of 110.31 grammes of ketamine together with an electronic scale and some resealable plastic bags were found inside the wardrobe of the defendant’s bedroom.

3.The drug was subsequently examined by the government chemist who confirmed the 6 packets of drugs to weigh 147.8 grammes which contained 120.54 g of ketamine.

4.Under caution the defendant said he first bought the drugs for his own personal consumption. He bought in bulk to get a cheaper deal. He bought 6 ounces of ketamine for HK$7,200. As he was not able to consume all the ketamine, he intended to sell off a portion of the ketamine for profit. On the day before his arrest, he had been asked by his friend for the supply of ½ ounce of the drug. On 12 April 2009 he was arrested by the police whilst he was on his way to delivering the ½ ounce of ketamine.

5.The sentencing tariff for ketamine trafficking is recast in June last year in the case of Hii Siew Cheng (許守城) . The trafficking of 50 to 300 grammes of ketamine would usually attract a term of 6 to 9 years imprisonment (4 to 6 years for trafficking in 10 to 50 grammes of ketamine).

6.The defendant came from a grass root family. His father deserted the family 10 years ago. His mother lives on comprehensive social security assistance. He was reported to be an under achiever at school. It was said the defendant is suffering from the after effect of excessive abuse of ketamine and has developed a urinary problem.

7.When there is a claim for personal consumption, the court has to determine factually what portion of drugs was intended for trafficking. The guide to achieve resolution of the factual issues was set out in Wong Suet Hau [2002] 1 HKLRD 69.

8.For a person in possession of substantial quantity of drugs, the latent risk (of substantial quantity of drugs left in the feeble hands of a drug dependent person) ought to be considered. The court would usually consider a starting point of 12 –18 months for the possession of the drugs and enhance the starting point with reference to the quantity of drug the defendant had in his possession. [See Wan Sheung Sum [2000] 1 HKLRD 405 (23 Dec 99).

9.The defendant gave the explanation that he was arrested in the course of delivering ½ ounce of his drugs to his friend. The quantity he actually trafficked in on 12 April 2009 was 10.23 grammes of ketamine (the subject matter of his 1^st charge).

10.He had a further 110.31 grammes of ketamine in his home. In mitigation it was said on his behalf by his solicitor that he consumed a daily dosage of ½ ounce per day and he intended to keep half of what he possessed at his home for his personal consumption.

11.The defendant was said to be a decoration worker earning about HK$7000 to HK$9000 per month. The street value, from the collective data of the police, was about HK$17,000 for 150 grammes of the mixture the defendant had in his possession.

12.The defendant said he was able to buy at a cheaper price of HK$7200 for the 6 ounces of ketamine. According to his daily dosage of ½ ounce, his income would unlikely be able to sustain his consumption should he require as much as ½ ounce per day.

13.Data supplied by the defendant in his mitigation has no strong appeal to one’s commons sense. Be it as it may, the defendant has no obligation to prove his case. I sentence him on the assumption that he has been honest about the quantity with which he intended to sell off for a profit; i.e. roughly 65 grammes in total (10 grammes in charge 1 and 55 grammes in charge 2).

14.In respect of the 1 charge of trafficking in 10.23 g of ketamine, the appropriate sentence is a term of 4 years imprisonment.

15.A term of 6 years would have been justified for the trafficking in the other 55 grammes of ketamine. For his possession of the remaining 55 grammes of ketamine, if the defendant was to be sentenced on the basis of a simple possession charge, the quantity of drugs he had with him would have justified a term of 1 ½ years of imprisonment (i.e. with a starting point 12 months coupled with a 6 months enhancement on account of the large quantity).

16.A numerical addition of the two terms would result in a total of 7 ½ years, which is a term longer than the trafficking of the total quantity of 120 grammes of ketamine (as the trafficking of 120 grammes of ketamine alone would likely have attracted a term of 6 years and 10 months’ imprisonment). For the fact that this is a plea of guilty case which indicated the defendant exhibited a sense of remorse, I made adjustment by way of a global estimation rather than a numerical summation of the latent risk and the actual trafficking activity. I adopt a starting point of 6 years 3 months taking into consideration the defendant would likely have retained a portion of the drugs for his own personal consumption in respect of his 2^nd charge of trafficking.

17.Giving him credit for his plea of guilty indicating remorse, I accord him 1/3 discount and reduce his term to that of 4 years 2 months instead for the 2^nd charge; and a term of 32 months in respect of his 1^st charge.

18.The defendant is the subject of a suspended term for which he was sentenced to 2 months suspended for 3 years on 25 February 2008 in KC-487/08. I was told on the last occasion the drug he abused was cocaine. Though the last offence was related to a drug of a different nature, it would be wrong in principle for me to refuse to activate a suspended term when the offence committed on the last occasion was similar in nature to the present one. I do activate the 2 months term in respect of his last conviction.

19.Taking totality into consideration, I do order:-

(i) his terms for his 1^st and 2^nd charges are to be served concurrently as both charges arose out of the same set of fact circumstances; and

(ii) a term of 1 month of his activated term is to be served concurrently with his current terms, leaving the balance of 1 month to be served consecutively.

20.The total time the defendant is required to serve is a period of 4 years and 3 months.