HKSAR v. Ng Pui Yin and Another

DCCC 850/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 850 OF 2010

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REASONS FOR SENTENCE

1.The Defendants, D1 and D3 on the indictment and so termed throughout, both pleaded guilty to Charge 1 on the indictment, an offence of trafficking in 6.3 grammes of a crystalline solid containing 6.15 grammes of methamphetamine hydrochloride, namely ice, in which they were jointly charged with D2, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, while D3 also pleaded guilty to charge 2 on the indictment, an offence of possession of apparatus fit and intended for the inhalation of ice, contrary to sections 36(1) and (2) of the Dangerous Drugs Ordinance, Chapter 134, in which she was jointly charged with D2. At the outset, the Prosecution indicated that they would offer no evidence against D2 on charge 1, and I dismissed that charge against D2. It was agreed that the sentence of D1 and D3 be adjourned until the trial of D2 on charge 2 was concluded, and the matter was adjourned until 27 January, 2011 for mention. The trial of D2 on charge 2 continued before me. At the conclusion of the Prosecution case, I found that D2 had no case to answer on charge 2, and dismissed that charge against him.

2.Facts admitted by D1 and D3 disclose that in the early hours of 22 May, 2010, police officers conducting an operation on 31^st floor, Fuk On House, Ka Fuk Estate, Fanling, saw D1 coming out of Room 3101 at 0425 hours and leave the building. He returned shortly after and was seen to be acting suspiciously at the staircase area on the 31^st floor. The police officers decided to stop and search him and the dangerous drugs the subject matter of charge 1 was found from his right front trouser pocket. He was arrested and under caution he said that he acted as a courier to carry the drugs for a person named ‘Ah Kwan’. Police officers then proceeded to Room 3101, where they found D2 and D3 inside. D1 pointed out D3 to the police officers as the person he had referred to as ‘Ah Kwan’. Upon search of the premises, drug paraphernalia, including re-sealable plastic bags, an electronic scale, and one inhaling device, the subject matter of count 2, were found. D3 was arrested and under caution, she admitted that some of the drugs would be consumed by herself, and some would be sold. When interviewed under caution in a video interview, D1 stated that he had known D3 for about half a year. That day when he went to D3’s address, she had asked him to pick up some drugs for her from the bus stop at Ka Shing Court in Fanling, and gave him $2,000 to $3,000 in cash to do so. D1 picked up the drugs from an unknown woman at the bus stop as instructed, and was arrested by police before he could deliver the drugs to D3. He said he would be paid $2,000 by D3 as a reward for carrying the drugs for her. D3 admitted when she was interviewed under caution in a video interview that she had given D1 $2,000 in cash and instructed him to pick up the dangerous drugs from a woman at the bus stop. She said she would consume some of the drugs herself and sell some to friends who visited her. She also admitted to possessing the inhaling device. The Government Chemist confirmed that the dangerous drugs found in the plastic bag found from D1 contained 6.3 grammes of a crystalline solid containing 6.15 grammes of methamphetamine. The paraphernalia and inhaling device found in the premises contained traces of a powder containing methamphetamine. The estimated street value of the methamphetamine seized was approximately HK$4,806.90.

3.Although it had been listed for mention on 27^th January, 2011, as the trial of D2 had concluded, I heard Counsel in mitigation on that date, and adjourned the matter until today for sentence, calling for a Background Report in respect of both D1 and D3. These reports are now before me. I have carefully considered all that has been urged upon me in mitigation by Counsel on behalf of each Defendant, as well as the contents of the reports and the letters from D3, her mother and previous social worker Ms. Ng, which are before me.

4.The Court of Appeal in Attorney General v CHING Kwok-hung [1991] 2 HKLR 125 laid down guidelines for trafficking in ice. Where the quantity of narcotic is up to 12 grammes, for sentence after trial, the guideline is between 3 and 7 years imprisonment. In HKSAR v CAPITANIA Edwin F. CACC 28/2004, the Court of Appeal accepted that the reference to 12 grammes was a typographical mistake and should read 10 grammes.

D1

5.D1 is now aged 22 years. He has a clear record. He is single and lives with his mother and elder sister. I was told that his mother was retired, and she had been diagnosed to have a brain tumour, for which she was receiving treatment. According to the Background Report, however, the mother suffered from epilepsy since she was young, and more recently from mental illness – there is no mention of a brain tumour, but in my view that is neither here nor there. Both his mother and sister were in court to show their support for D1. He has been educated to Form 5. Thereafter, he started to work, working as a bartender and in a supermarket. But he was unemployed at the time of the offence. He could only find casual work, earning about $3-4000 a month, which was not enough to support his living. He had toyed with drugs from time to time, but I was told he was not a drug addict – he was acting as a courier for D2 to earn some money, and none of the drugs seized was for his own consumption. He had been co-operative with the police after he was arrested, and made full admissions under caution. He was also ready to give evidence on behalf of the Prosecution against the other defendants, and had given a witness statement dated 18 January, 2011 to the police, which was confirmed by Mr. Fenton, although the Prosecution had not yet decided whether they would be calling him. Counsel submitted also that he was remorseful.

6.D1’s remorse can be seen from the Background Report – he frankly admitted to the interviewing officer that he had started to abuse ice in 2010, and took it once or twice a week, although he did not consider himself an addict. He had also taken ketamine and cocaine a few times. He said this was the first time he had worked for D3 as a courier, and he did so to earn some quick money, but was caught. His sister also told the interviewing officer that D1 had helped to pick up small amounts of drugs for others a few times in the past.

D3

7.D3 is now aged 21 years. She has a clear record. Her parents were in court to show their support for her. She has been educated to Form 3. Because of this, her work opportunities were limited – she worked as a salesgirl in a boutique in Mongkok on a casual basis, and was supported by her family.

8.Counsel for D2 submitted that the quantity of ice was ‘exceptionally small’, and the guideline set down in Ching Kwok-hung, supra being 3 to 7 years’ imprisonment for a quantity of up to 10 grammes of narcotic after trial, I could adopt a starting point of less than 3 years. I am unable to accept this. He also urged that D3 had admitted that some of the drugs in question was for her own use, as she had admitted when she was interviewed under caution, which was supported by the fact that there was an inhaling device, the subject matter of charge 2, also found on the premises, and she had admitted to its possession – the government chemist had found traces of a powder containing methamphetamine on the device. Counsel submitted that she had not informed her parents of her involvement in the present offence, and it was only after she had been remanded in custody that her parents were informed by a social worker. The family was shocked by D3’s present offence, and the mother in her letter sought leniency on behalf of D3.

9.When interviewed by the Probation Officer, D3 said she had started taking soft drugs when she was 18 years old, under the influence of undesirable peers. She started by taking ice, ketamine, ‘five’ but later only took ice, which she consumed almost daily. She was offered free drugs by friends at times. She moved out from her parents’ premises, and moved into the premises where she was arrested in February, 2010, after a quarrel with her father. These were the premises of friends of her parents who stayed on the Mainland, and she lived there with her boyfriend, D2 in these proceedings. She claimed to the interviewing officer that the drugs in question was for consumption by herself and her co-accused, and that the scales found was for measuring to ensure that they had not been cheated, and denied any drug trafficking activity, and claimed that she had been framed up by the police. I am told by Counsel that she maintains her pleas and her admission of the facts, and D3 has also confirmed this. The Background Report sets out her background in detail and I do not propose to rehearse the contents herein.

10.I am satisfied that an appropriate starting point on charge 1 would be 5 years imprisonment.

11.Giving D1 full credit for his plea of guilty, that will make it 3 years and 4 months’ imprisonment. D1 indicated at the hearing on 21 September, 2010 that he would be pleading guilty to the charge, while both D2 and D3 entered pleas of not guilty. The matter was set down for trial on 24 January, 2011 before me, at which time D3 entered pleas of guilty to the charges that she faced. D1 had indicated that he was willing to assist the Prosecution, and had even given a witness statement dated 18 January, 2011 in that regard, although the Prosecution had not yet decided whether he would be called as a Prosecution witness. As D3 had pleaded guilty, his assistance was not required. Quite fairly, Mr. Fenton has said that they might have considered calling him as a Prosecution witness had D3 not pleaded guilty. It is clear too that it was after D3 had been informed of D1’s intention to give evidence for the Prosecution and that he had given a witness statement that she indicated that she would plead guilty. In my view, D1 deserves credit for his offer to assist the Prosecution, and I shall reduce his sentence by 6 months to reflect this. D1 is convicted and sentenced to to 2 years and 10 months’ imprisonment on charge 1.

12.I am told that D3 is an abuser of ice. D3 admitted that some of the drugs the subject matter of charge 1 were for her own consumption and the equipment found in D3’s home was suitable for inhaling ice. In the circumstances I am prepared to accept that some of the ice was for D3’s own consumption..

13.In deciding how much weight should be attached to the fact some of the ice was for D3’s own consumption I have considered the decision in HKSAR v. WONG Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34. It is clear from the admitted facts that the paraphernalia found in the premises included scales and empty re-sealable plastic bags. Counsel opened the exhibit containing these bags and agree that the quantity of these empty re-sealable plastic bags seized was over 20 pieces. The value of the drugs in question is almost HK$5,000. D3 was only working as a salesgirl on a casual basis. Although its not possible to determine how much of the drugs in question would be for her own use, I accept that some small part would be, although its unlikely to be all the drugs in question. I am satisfied a reduction of 6 months imprisonment to reflect this is appropriate. Giving D3 full credit for her plea of guilty, and the further discount of 6 months to reflect that some of the drugs in question were for her own use, she is convicted and sentenced to 2 years and 10 months’ imprisonment on charge 1.

14.I am satisfied the proper starting point after trial for charge 2 is 6 months imprisonment. Full credit for the plea of guilty reduces the sentence to 4 months imprisonment. Accepting part of the drugs in charge 1 were for D3’s own consumption, I am satisfied possession of the equipment does not increase her overall culpability. I therefore order the sentence on charges 1 and 2 to be served concurrently by D3.