CRIMINAL CASE NO. 44 OF 2012
COURT: The defendant, Chiu Sau-wai, was charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
He pleaded guilty before me, and after admitting to the Summary of Facts, I found him guilty of both counts as charged.
The Summary of Facts
On the day in question, a team of police officers were conducting an anti-dangerous drugs operation in the Cheung Sha Wan area when they intercepted the defendant at the staircase of Hing Yip Building at Castle Peak Road.
Upon search, a plastic bag of 13.15 grammes of a crystalline solid containing 10.33 grammes of N, N-dimethylamphetamine, (NNDMA), was found on him.
Under caution, the defendant said he was delivering the dangerous drug “Ice” to a customer, and asked for a chance. Later, at the defendant’s residential address, the police found a total of 552.54 grammes of crystalline solid containing 436.41 grammes of NNDMA. The police also found packing equipment such as an electronic scale and transparent resealable bags inside the premises.
Under caution the defendant admitted the dangerous drugs found inside the premises belonged to him.
During a video-recorded interview conducted at the police station, the defendant admitted packaging the dangerous drug with the equipment seized from his home, and that he delivered “Ice” to others to earn money.
The total quantity of NNDMA involved was 446.74 grammes. The estimated retail value of the dangerous drugs was $458,208.
Background and Mitigation
The defendant is aged 37. He is not a first offender, having appeared in court on nine occasions, and has 12 previous convictions. Most of the convictions involved dutiable goods, but he had one previous conviction of trafficking in a dangerous drug for which he was sentenced to 12 years’ imprisonment in year 2002. He was released from gaol in July 2010.
Mr Ronald Mayne, counsel for the defendant, provided me with his written submission for mitigation. I do not think there is any need to reiterate all of the contents. Mr Mayne informed me that the defendant was living with his girlfriend and was supporting a family of four at the time of the arrest. Although he obtained a driver’s licence at the age of 18½ and had worked as a driver earning $10,000 a month, he was unemployed at the time of the arrest. Due to financial burden, he resorted to trafficking in dangerous drugs for others.
The defendant used to abuse “Ice”, but he is no longer a user.
Mr Mayne stressed that the defendant was co‑operative with the police.
Referring to the tariffs set down in the case of Attorney‑General v Ching Kwok Hung [1991] 2 HKLR 125, on the trafficking of “Ice”, and the case of HKSAR v Ngan Ka Chun and Another unreported CACC12/2008, for the trafficking of NNDMA, Mr Mayne asks me to adopt as low a starting point a possible within the range in Ching Kwok Hung and then adjust it by adopting 60 per cent of that starting point as the appropriate starting point here.
Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life.
The Court of Appeal has set down guidelines for the trafficking of “Ice” in the case of Ching Kwok Hung. For the trafficking of 300 to 600 grammes of “Ice”, the starting point is one of 14 to 18 years.
The dangerous drug involved in this case is not "Ice" as such but NNDMA which is different from "Ice". I do not have any expert evidence before me but according to the observation of the Court of Appeal in the case of Ngan Ka Chun & Another, the undisputed literature in experts’ reports showed that the potency of NNDMA is approximately one-third of that of "Ice" and its stimulant effect on the central nervous system is approximately 5 to 12 times less effective than that of "Ice". The depleting effect of NNDMA to the substance dopamine, a neural transmitter, is about one-eighth of that of "Ice".
That does not mean, however, that the starting point of sentencing for trafficking in NNDMA should also be one-third of that of trafficking in "Ice". The Court of Appeal was of the view that the starting point for trafficking in NNDMA should be 60 per cent of that for trafficking in the same quantity of "Ice".
Although the defendant is found guilty on his own plea to two counts of trafficking in a dangerous drug, as these two offences were committed on the same day and closely related. I will calculate the overall starting point for sentence by combining the weight of NNDMA in both counts. The total quantity of NNDMA, as I have mentioned earlier, was 446.74 grammes.
Using the tariff in Ching Kwok Hung for the trafficking of "Ice", bearing in mind the quantity of narcotics, the role played by the defendant - that is a packer and a deliverer, though not the mastermind - and the background of the defendant, particularly when he had been sentenced to 12 years’ imprisonment for trafficking in a dangerous drug and was only released from gaol for slightly over one year when he committed the present offence, I am of the view that a starting point of 16½ years will have been appropriate.
Since the defendant trafficked in NNDMA, not "Ice", on the authority of Ngan Ka Chun & Another, I will adjust this 16½ year starting point by reducing 40 percent, thereby adopting a starting point for NNDMA equivalent to 60 percent of that of the starting point for the trafficking of the same quantity of "Ice". On my calculation, 60 percent of 16½ years is equal to 9 years and 9 months.
The defendant has offered a timely plea and is entitled to a full one-third discount. I do not see any other grounds for further reducing the sentence. The total sentence should be one of 6 years 6 months.
To achieve that, for the 1st count, the defendant is sentenced to 2 years 8 months’ imprisonment. For the 2nd count, the defendant is sentenced to 6 years 6 months’ imprisonment. Both sentences to run concurrently, making a total of 6 years and 6 months’ imprisonment.