HKSAR v. Ngan Kam Wah

DCCC1014/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1014 OF 2010

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Reasons for Sentence

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1.Defendant pleads guilty to two charges of trafficking in dangerous drugs and a charge of possession of apparatus fit and intended for the inhalation of dangerous drugs.

2.The particulars of the above three charges were that on the very same day of 28 June 2010, the defendant unlawfully trafficked 3.18 grammes of a crystalline solid containing 3.15 grammes of methamphetamine hydrochloride, “Ice”, and 26.47 grammes of a powder containing 20.6 grammes of ketamine for the 1st charge.

3.And for the 2nd charge, the defendant had unlawfully trafficked 2.22 grammes of a solid containing 1.97 grammes of cocaine, 24.37 grammes of a powder containing 5.16 grammes of ketamine and 0.35 gramme of methamphetamine, 130 tablets containing 0.65 gramme of nimetazepam, 32 millilitres of liquid containing traces of cocaine and ketamine, 0.46 gramme of a powder containing 0.22 gramme of cocaine and 0.07 gramme of ketamine and 4.8 grammes of a powder containing 1.41 grammes of ketamine.

4.While for the 3rd charge, the defendant was in possession of a plastic straw and a container with a glass tube and a plastic bottle containing 75 millilitres of a liquid containing traces of methamphetamine and one plastic bottle with a straw and a glass tube with metal gauze and a plastic bottle containing 96 millilitres of a liquid containing traces of cocaine, fit and intended for inhalation.

5.The facts admitted by the defendant were that on the above day at about midnight, the defendant was intercepted at Tai Kok Tsui Road, Mong Kok.  Upon a body search, three plastic bags containing the above drugs as particularized in Charge 1 as stated above were found inside the right pocket of the defendant’s jeans.  The defendant was then taken home at Pok Man Street, Mong Kok, where the drugs as particularized in the 2nd charge and the 3rd charge were found.

6.Under caution at scene and at the interview, the defendant basically said the drugs were for his own consumption, but now he also admitted the drugs found in his jeans and his home were for the purpose of trafficking. 

7.The defendant is aged 37 and he has 8 previous criminal convictions, mostly concerning possession of dangerous drugs, the last one in December 2009, he was sentenced to DATC.

8.Mr Yuen for the defendant states that he is married but separated now, and he has been a cleaning worker on a casual basis.  It is quite clear that he has been a deep rooted drug addict for some years.  Mr Yuen also submits that some portion of the drugs concerning this case were for his own consumption though it cannot be said of a significant portion.

9.The case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 is also relied upon where the circumstances in this case when applying the factors as stated, namely the quantity of drugs and value, the number of packets and where the drugs were found, at street and also at home, with quite some equipment also found at home and given his past record and as a drug addict, it is submitted at least some portions were for his own consumption.

10.I do accept that and I shall give credit of that for sentence.  However, trafficking in dangerous drugs is a very serious offence.  For trafficking in ketamine and methamphetamine, “Ice”, the Court of Appeal has laid down guidelines for sentence.  For ketamine, in Secretary for Justice v Hii Siew Cheng CAAR7/2006, 1 to 10 grammes shall attract 2 to 4 years’ imprisonment; 10 to 50 grammes shall be 4 to 6 years.  For “Ice”, in AG v Ching Kwok Hung [1991] 2 HKLR 125, up to 10 grammes, 3 to 7 years’ imprisonment.

11.As for a mixture of drugs for sentence, the combined approach is to be adopted.  See HKSAR v Yip Wai Yin [2004] 3 HKC 367 and a recent one, HKSAR v Wong Kin Kau CACC269/2009. 

12.For Charge 1, 3.15 grammes of “Ice” shall attract 3½ years’ imprisonment while 20.6 grammes of ketamine shall impose 4½ years.  Of course the simple combination of two may lead to absurdity.  Under the combined approach, the most serious one shall first be considered, followed by an upward adjustment of other quantities.  If “Ice” is to be taken first, I then assess an upward increase of 1½ year on ketamine appropriate, so it shall mean a total of 5 years.

13.When assessing that, I have also taken into account some portions may be for his own consumption or the starting point and an upward increase shall be fixed higher.  Even if ketamine is to be considered first, the overall sentence of 5 years as a starting point is also considered appropriate.

14.Upon guilty plea of the defendant, I shall reduce it to 40 months’ imprisonment for the 1^st charge. 

15.For Charge 2, the majority was ketamine.  The total quantity of which was 5.16 grammes, 0.07 gramme and 1.14 grammes, coming to 6.37 grammes, 3 years’ imprisonment is appropriate.  While for cocaine, it came to 1.97 grammes and 0.22 gramme totalling 2.19 grammes.  In HKSAR v Abdallah Anwar Abbas CACC304/2008, adopting the same guideline for cocaine as that for heroin in Lau Tak Ming’s case, up to 10 grammes is 2 to 5 years’ imprisonment.

16.Under the combined approach, I assess that the overall sentence of 4 years’ imprisonment shall be just considering that some portions were for his own consumption.  Upon guilty plea by the defendant, it shall be reduced to 32 months.  So for Charge 2, 32 months.

17.For Charge 3, possession of apparatus fit and intended for inhalation of dangerous drugs, namely for “Ice” and cocaine, I consider 6 months’ imprisonment appropriate. Upon guilty plea, I reduce it to 4 months. 

18.On totality, for Charge 2 and 3, the drugs and apparatus were both found at home, I order that both sentences be served concurrently.  While for Charge 1 which happened at the street, a different place, I consider it be appropriate that only 8 months for Charge 2 and 3 be made consecutive to the 1st charge, making a total of 48 months.

19.Therefore, for Charge 1, 40 months’ imprisonment.  For Charge 2, 32 months’ imprisonment.  Charge 3, 4 months’ imprisonment.  For Charge 2 and 3 be run concurrently and only 8 months of which consecutive to Charge 1, making a total of 48 months’ imprisonment.  Therefore, the overall sentence I impose is 4 years’ imprisonment.