HKSAR v. Ng Tak Chuen and Others

DCCC151/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 151 OF 2010

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Reasons for Sentence

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1.D1, you pleaded guilty to four charges of trafficking in dangerous drugs, being Charges 1, 2, 4 and 6. You denied Charge 3. The prosecution applied for it to be left on file and not to be proceeded with without leave of this court or the Court of Appeal, that order was made.

2.D2, you were convicted after trial of one offence, being Charge 6, of trafficking in dangerous drugs.

3.D3 and D4, you each pleaded guilty to Charges 4 and 5.

4.Each of these charges is contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

5.D1, D3 and D4, you admitted the Brief Facts as put to you.  

6.Briefly, the prosecution case was as follows. This was an undercover operation which began on 21 April 2008 until it went overt and D1 was arrested on 23 September 2009.  D2 and D4 being arrested between that date and 28 September.  At an ID parade PW1 picked out D2 to D4. 

7.I turn now to Charge 1 which involves D1. Between 2 and 5 September 2008, D1 repeatedly invited PW1 to sell cocaine with him saying they would share the proceeds.  On 7 September 2008, PW1 met D1 at a pub at the ground floor of No.4 Hillwood Road in Tsim Sha Tsui.  D1 handed over two packets containing 0.57 grammes of a solid containing 0.51 grammes of cocaine for PW1 to sell to his friends.  The proceeds to be shared equally. 

8.D1 claimed in his video recorded interview it was PW1 who requested the cocaine and he ordered it from his supplier on his behalf. 

Charge 2

9.On the evening of 19 September 2008, PW1 told D1 by phone that his friends would hold a party later in the evening.  D1 asked if those friends were the ones who had previously purchased cocaine from PW1.  PW1 confirmed this.  D1 asked PW1 to ask his friends if they wanted to purchase cocaine again.  PW1 later informed D1 that they wanted to purchase four packets of cocaine.

10.Subsequently, D1 met PW1 at a pub in Hillwood Road, Tsim Sha Tsui, and asked him for $2,200.  PW1 said he had insufficient cash, however, D1 said he could pay him back later.  D1 then left the pub, returning shortly afterwards with four packets which contained 1.26 grammes of a solid containing 0.98 grammes of cocaine.  These, he handed to PW1. 

Charge 4

11.In the afternoon of 7 November 2008, PW1 told D1 that his friends would hold a party later that evening.  D1 suggested PW1 sell 10 packets of cocaine to his friends, but PW1 said he wanted 20.  Subsequently, PW1 gave D1 $3,000 as the proceeds to the share between the two of them after selling 20 packets of cocaine.

12.D1 later took PW1 to a private car, MC 1361, parked in Sham Mong Road, Mong Kok.  The car was registered in D3’s name.  In the car D1 introduced PW1 to D3 and D4.  PW3 asked PW1 if he had the money which he confirmed.  D3 took out a box which contained 20 packets later found to be 5.87 grammes of a solid containing 3.77 grammes of cocaine.  The box was passed to D1.  PW1 paid $8,000 to D4 who counted it and placed the money in her handbag. 

Charge 5

13.In the evening of 13 February 2009, PW1 called D3 and they arranged to meet at a taxi rank in Austin Road West, Tsim Sha Tsui.  Upon arrival there, PW1 boarded the car and saw D3 in the driver seat and D4 in the front passenger seat.  D3 asked PW1 if he wanted to buy 10 packets of cocaine and PW1 agreed.   D3 passed him a plastic bag containing 10 packets later found to be 2.90 grammes of a solid containing 2.39 grammes of cocaine. PW1 gave D4 $5,500.  D4 counted the money and placed it in her trouser pocket. PW1 left the car. 

Charge 6

14.On 9 September 2009, D1 met PW1 and asked PW1 to sell packets of cocaine for him.  On 16 September 2009, D1 called him and told him to get $3,000 for the purchase of three packets of cocaine.

15.On 17 September they met in a restaurant where PW1 gave D1 $1,500 to buy cocaine.  Later D1 took PW1 to a van registered with D2 parked in Woosung Street.  They boarded the van and D1 introduced PW1 to D2 who sat on the driver seat.  D2 asked if they wanted to purchase three packets of cocaine and D1 agreed.  D1 passed $1,500 to D2 who counted the money, he then took out a packet containing three packets which contained 0.67 grammes of a solid which contained 0.56 grammes of cocaine.  D1 and PW1 then disembarked. D1 passed the cocaine to PW1 and then left. 

16.D1 admitted to three previous convictions, one of which was similar, though I do note that it is of some age.

17.D2 admitted to five previous convictions on three occasions, two of which were similar, though in fairness I do note that the third conviction which is three offences occurred after the commission of this offence, so it is not strictly a previous conviction. 

18.D3 admitted to five previous convictions, one of which was similar; and D4, two previous convictions, one of which was similar.

19.On behalf of D1, Mr Tong entered mitigation.  He asked me to sentence on the basis of aggregating the total quantity of dangerous drugs involved which is 5.82 in respect of D1.  I indicate at this point I find that was my usual practice.

20.He referred me to Charge 4 and to paragraph 3 that D1 had offered PW1 10 packets of dangerous drugs, but PW1 had in fact asked for 20.  The implication being that this is a clear case of agent provocateur and that I should take this into account when considering sentence.

21.Mr Tong also produced for my consideration a letter of support.  That letter told me that D1 had indulged in acts of community service in the past.  I was reminded of his plea of guilty and he asked for leniency.

D2

22.Mr Luk entered mitigation on behalf of D2.  He was 32.  D2 has two previous convictions relating to dangerous drugs.  He was sentenced to community service order subsequent to the commission of this offence and has completed 40 hours of that order.  Those convictions were for totally different types of offences.  Mr Luk referred me to the tariff which is up to 10 grammes being 2 to 5 years’ imprisonment.  Charge 6 involves 0.56 grammes of cocaine.

23.Mr Ho entered mitigation on behalf of D3.  He told me D3 was 39 years of age, married with a son of 15.  Charges 4 and 5 involve a total of 6.15 grammes of cocaine.  He told me that D3 committed these offences out of financial hardship having lost his job as a lorry driver for which he earned $13,000 per month.  I was told his wife and son are here in court to support him and letters were produced of support.  Mr Ho stressed the plea of guilty and asked me for leniency. 

24.Mr Luk entered mitigation on behalf of D4 who was about 21 years of age.  She too was involved in two offences, again Charges 4 and 5, a total of 6.159(6.15?) grammes of cocaine.  I note that D4 is serving a total of 9 years and 3 months’ imprisonment which commenced in July last.  I am told that in prison she is working to advance her studies with a view to leaving prison and obtaining a proper career. 

25.Very fairly, Mr Hagon referred me to the fact that whilst the other trial was continuing, she had to take a day off in order to take examinations.  Mr Luk referred me also to the difficult upbringing that D4 had and part of the reason for these offences were involvement with D3 with whom it was said to have been less than honest about his marital status.  Also it would seem that D4 had been attempting to raise money to provide for the medical expenses of her father.

26.To put it in a nutshell, she is a young lady already subject to a long period of imprisonment but intend on using that period of imprisonment to advance herself.  I am prepared to accept that.

27.I turn now to the sentences themselves.  I should make it clear that where appropriate I have aggregated the amount of drugs involved in order to arrive at an overall sentence making all sentences concurrent, but taking the major sentence in each case as the one that attracts the largest sentence. 

28.D1, you pleaded guilty to Charges 1, 2, 4 and 6.  The total amount of drugs involved is 5.89 grammes of cocaine.  You have one previous conviction relating to drugs but that is some time ago.  I am also taking into account what was said on your behalf in respect of Charge 4 although in fairness I cannot see that there is much mitigation lying there as you voluntarily assisted PW1 by complying with his request.

29.Therefore, on Charges 1, 2 and 6, I take a starting point of 2 years, each reduced to 16 months for your plea of guilty. On Charge 4, imprisonment of 3 years and 9 months, 45 months, reduced to 30 months for your plea of guilty.  This will be concurrent.  You will go to prison for 30 months. 

30.On Charge 4, a starting point of 45 months, one-third discount for the plea of guilty, it takes to 30 months, all concurrent.  That is a total of 30 months’ imprisonment on all four offences.

31.D2, you pleaded not guilty and were convicted after trial, therefore you will go to prison for 2 years. 

32.D3 and D4, you were convicted on your own plea on Charges 4 and 5, on each of these charges, I take a starting point of 45 months, reduced to 30 months, to be served concurrent to each other.

33.However, in respect of D4, your 30 months will be served in the following way. I have a lot of sympathy with you, given your age, the emotional involvement that you had with one of the other defendants, your efforts to better yourself and the fact that you are serving a very long sentence indeed, therefore, as an act of mercy, you will serve 6 months consecutive to that sentence, 24 months will be concurrent.