HKSAR v. Ng Man Lung

DCCC 868/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 868 OF 2010

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Reasons for Sentence

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Background

1.The Defendant is convicted after trial on the 1^st charge of trafficking in a dangerous drug and upon his own guilty plea on the 2^nd charge of possession of a dangerous drug.

2.The Particulars of Offence in the 1^st Charge read:

“NG Man-lung, on the 7^th day of June, 2010, outside Shop Nos.6-8, Ground Floor, Block 1, Kai Tak Mansion, No.53 Kwun Tong Road, Ngau Tau Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 6.15 grammes of a mixture containing 4.24 grammes of heroin hydrochloride.”

3.The Particulars of Offence in the 2^nd Charge read:

‘NG Man-lung, on the 9^th day of June, 2010, at Lai Chi Kok Reception Centre, No.5 Butterfly Valley Road, Cheung Sha Wan, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely 0.17 gramme of a mixture containing heroin hydrochloride.”

4.The facts of this case are that:

(i) At about 1240 hours on 7 June 2010, PC 53082 (“PW1”) and PC 2435 (“PW2”) stopped the Defendant outside Shop Nos.6-8, Ground Floor, Block 1, Kai Tak Mansion, No.53 Kwun Tong Road, Ngau Tau Kok, Kowloon (the “Location”). Upon body search on the Defendant, PW1 found inter alia three packets each containing 12 pellets of suspected dangerous drug (“DD1”). PW1 therefore declared arrest and administered caution on the Defendant. Under caution, the Defendant admitted that he was helping someone to deliver the white powder;

(ii) In a subsequent cautioned video-recorded interview conducted in the afternoon on 7 June 2010, the Defendant admitted that he was carrying DD1, which the Defendant knew that it was heroin, with a view to delivering them for a reward of HK$400 to Ngau Tau Kok Jockey Club Clinic where someone would collect DD1;

(iii) On 9 June 2010 whilst the Defendant was on remand in Lai Chi Kok Reception Centre, he excreted one pellet of suspected dangerous drug (“DD2”). The Defendant was further arrested. Under caution, he admitted that he had swallowed DD2 at the time of his arrest on 7 June 2010; and

(iv) DD1 and DD2 were subsequently sent to the Government Laboratory for examination. It was found that DD1 contained 6.15 grammes of a mixture containing 4.24 grammes of heroing hydrochloride, and that DD2 contained 0.17 gramme of a mixture containing heroin hydrochloride.

Defendant’s previous conviction record and antecedents

5.The Defendant has 19 previous convictions, out of which 2 are trafficking in dangerous drugs (one sentenced in 1969 and one in 1978) and 7 are possession of dangerous drugs (sentenced on divers dates in 1976 to 2007).

6.The Defendant was born in December 1952. He has received education up to Primary 2 level. At the time of arrest he was unemployed and was on Comprehensive Social Security Assistance receiving HK$2,800 per month. He is divorced and has a 14-year-old daughter but he has no contact with his ex-wife or daughter.

Mitigation

7.Nothing much was advanced in mitigation except that the Defendant was a drug addict. I am of the view that mitigation was unremarkable.

Sentence

8.According to R v Lau Tak Ming & others [1990] 2 HKLR 570, trafficking in up to 10 grammes of heroin attracts a starting point of 2 to 5 years’ imprisonment.

9.In Lau Tak Ming, the Court of Appeal also said:

“Within the suggested bands, factors which the sentencing judge may properly take into account are: … his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf …”

10.The Defendant has a total of 9 previous convictions on drug related offences. In HKSAR v Chan Pui Chi, CACC 706/1997, Stuart-Moore VP said:

“Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of this applicant’s trafficking in dangerous drugs had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest. We should add that there is nothing original about the notion that a defendant, with previous convictions of the same or similar kind as the offence for which he is due to be sentenced, may receive a longer sentence than a defendant with none.

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… more common example, in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for repetition. There are many examples of this kind to be made, and trafficking in dangerous drugs is certainly no exception, if indeed there are any exceptions, to the general rule that re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned. This will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.”

11.In light of the decision in Chan Pui Chi, I consider the Defendant’s 9 previous convictions on drug related offences an aggravating factor which calls for an additional imprisonment term of 6 months for the 1^st Charge.

12.Having considered the whole circumstances of this case, the sentencing authorities and the aforesaid aggravating factor, I adopt a starting point of 3½ years’ imprisonment for the 1^st Charge. I do not think there are any valid mitigating factors justifying a reduction in sentence. The sentence on the 1^st Charge is therefore 3½ years’ imprisonment.

13.Regarding the 2^nd Charge of possession of a dangerous drug, relying on HKSAR v Lam Wai Ping, HCMA 240/1997, I will adopt a starting point of 12 months’ imprisonment. In light of the Defendant’s guilty plea to the 2^nd Charge, I give him 1/3 discount. There being no other valid mitigating factors justifying further reduction in sentence, I sentence the Defendant to 8 months’ imprisonment on the 2^nd Charge.

14.On totality, I have considered HKSAR v Lo Wai Fai, HCMA 123/2010, in which the appellant was convicted on his own guilty pleas to the first charge of trafficking in a single packet containing 0.08 gramme of heroin hydrochloride on 7 December 2009 in a street in Kowloon and the second charge of possession on 10 December 2009 of three packets containing a total of 0.3 gramme of heroin hydrochloride inside Lai Chi Kok Reception Centre. The three packets of heroin hydrochloride, the subject matter of the possession charge, were swallowed by the appellant at the time of his arrest and subsequently excreted whilst he was on remand. The sentencing magistrate sentenced the appellant to wholly consecutive terms of 16 months and 10 months respectively, making a total of 26 months’ imprisonment. On appeal, Mr. Justice Wright did not alter the individual sentences but substituted the total sentence of 26 months’ imprisonment with one of 18 months by ordering 2 months imprisonment term on the possession charge be served consecutively to the 16 months’ imprisonment on the trafficking charge. In this connection, Mr. Justice Wright said in paragraph 11 of the judgment:

“I take the view that the sentence on Charge 2 should have been ordered to be served partly consecutively to that on Charge 1 thus recognizing the individual nature of the two offences as well as providing some deterrence against taking drugs into custody.”

15.Applying Lo Wai Fai, I order 2 months’ imprisonment on the 2^nd Charge be served consecutively to that on the 1^st Charge, thus making a total sentence of 3 years and 8 months’ imprisonment.