HKSAR v. Ng Yuet Hung

HCCC 375/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 375 OF 2011

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Background and The Facts

This indictment contains three counts of trafficking in a dangerous drug. The 1st and the 2nd counts were laid against both defendants, whereas the 3rd count was laid against the 1st defendant alone.

The 2nd defendant pleaded guilty to both the 1st and the 2nd counts at the beginning of the trial. The 1st defendant pleaded not guilty to all three counts of trafficking, but pleaded to simple possession in respect of the 3rd count. That plea was not accepted by the prosecution, and she therefore stood trial before a jury in respect of all three counts.

At the conclusion of the trial, she was convicted by the jury unanimously of each of the three counts of trafficking.

Briefly, what happened was that in the afternoon of 14 December 2010, the 1st defendant was stopped by the police outside No 21 Pei Ho Street, Sham Shui Po. The officers noticed the 1st defendant removing from her handbag a packet of cigarettes and then releasing it onto the ground. Upon inspection, 13.46 grammes of a crystalline solid containing 12.47 grammes of methamphetamine hydrochloride, which is commonly known as “Ice”, was found contained inside the cigarette packet. This is the subject matter of the 1st count.

After the 1st defendant’s arrest, she was taken to her home for a search. At the time, her boyfriend - that is, the 2nd defendant - was living with her in the premises, and he was present when the police entered.

As a result of the house search, another lot of drugs, which were packed inside a number of resealable plastic bags and were wrapped with adhesive tape, were found in the computer room. The police also seized paraphernalia such as an electronic scale, empty resealable plastic bags, and a small paper shovel on the desk where the drugs were found.

The drugs formed the subject matter of the 2nd count. They were 43.41 grammes of a crystalline solid containing 42.02 grammes of “Ice”, 0.65 gramme of cannabis in herbal form, three tablets, and four tablet fragments containing 4 milligrams of flunitrazepam and nine tablets containing 0.01 gramme of methamphetamine.

Under caution inside the premises, the 1st defendant claimed that the drugs belonged to her and had nothing to do with the 2nd defendant.

As for the 2nd defendant, the Summary of Facts, which he admitted, disclosed that he had told the police during a subsequent interview that he had given the packet of cigarettes which contained the “Ice” for the 1st defendant to deliver to another person.

The 2nd defendant however claimed that the 1st defendant was not aware of the contents of the packet. During that interview, the 2nd defendant also told the police that he had obtained the drugs in the computer room from another person and he intended to sell those drugs to make profit.

After her arrest on 14 December 2010, the 1st defendant was released on bail. However, she was stopped by the police on 19 March 2011, and on this occasion, the police found inside her handbag a plastic bag containing 10.99 grammes of a crystalline solid containing 10.85 grammes of methamphetamine hydrochloride. Under caution, the 1st defendant claimed that she had the drug for her own consumption. This is the subject matter of the 3rd count.

Mitigation (1st Defendant)

The 1st defendant is aged 41 and is divorced. She was educated up to Form 2 level. She has two sons, one aged 19 and another aged 9. She was unemployed at the time of her arrest and was living with the 2nd defendant and her 9‑year‑old son in the premises.

The 1st defendant has been before the court on six previous occasions. Her convictions included theft, managing a vice establishment, and trafficking in dangerous drugs. Although the 1st defendant claimed to be a drug addict, she has never been convicted of any possession of dangerous drugs offence.

In mitigation, it was said that this trial only took place two years after the 1st defendant had first been arrested, and she has therefore undergone much stress and anxiety during the period concerned. When asked whether he was seeking any reduction on the basis of undue delay on the part of the prosecution, Mr Chan, for the 1st defendant, confirmed that such was not the case, and that he was simply saying that this case has taken quite long for the trial to take place.

On this aspect, I have read a letter from the court to the parties concerned which advised them that the original trial dates scheduled in May 2012 had to be vacated. The reason was that the trial judge before whom the case was then scheduled to proceed had another matter before him at the time, and the matter had overrun. It was under such circumstances that the case came to be fixed before me to start on 27 November 2012.

Given the history mentioned above, the rescheduling was necessary. I therefore do not consider this to be a ground to allow any special reduction in sentence.

Mr Chan also submitted that as the 1st defendant claimed herself to be a drug addict, part of the drugs for all three counts were for her own consumption. He therefore sought a reduction in sentence on this basis. For the following reasons, I am not persuaded at all that the 1st defendant had any significant amount of the drugs for her self‑consumption which would make any difference in sentence. (see HKSAR v Wong Suet Hau [2002] 1 HKLRD 69).

Firstly, for Count 1, the evidence revealed that the 1st defendant was taking the drug to another person at the time. She definitely could not have had such for her own consumption. Secondly, for Count 2, a large amount of drugs were found together with the paraphernalia. The drugs had been packed into different bags with different adhesive tapes wrapped around them.

The 1st defendant was unemployed at the time, and other than her claim, she has never been convicted of any “possession of dangerous drugs” offences. On the contrary, she has had one “trafficking in a dangerous drug” conviction which resulted in her being sentenced to 6 years and 8 months’ imprisonment on that occasion.

Thirdly, for Count 3, she was found having the large amount of “Ice” in her possession in the early hours of the day when stopped on a staircase which was not one in the building she lived. Again, for these facts, and for the reasons given above, I reject her claim of having any significant part of the drug for her self-consumption.

Mitigation (2nd Defendant)

The 2nd defendant is aged 41 and was a transportation worker at the time of the offence. The 2nd defendant has got two previous “trafficking in a dangerous drug” convictions. He was sentenced in December 1995 to a total term of 16 years’ imprisonment for these two offences.

In mitigation, it was also said on his behalf by Ms Wong that the trial has taken some time to take place, and that part of the drugs was for the 2nd defendant’s own consumption. I have already dealt with the delay point earlier on, and shall not repeat my observations here.

As for the claim for self-consumption, it should be noted that in the Summary of Facts, the 2nd defendant admitted at paragraph 4 that he had asked the 1st defendant to deliver the “Ice” to “Ah Wai”. He also admitted at paragraph 6 that:

“All of these drugs had been obtained from ‘Ah Mau’ in order to sell on to friends. On each occasion he sold drugs to friends, he would receive between a few hundred to $1,000. He had trafficked in dangerous drugs two or three times that week.”

In other words, the 2nd defendant never claimed that there was any significant part of the drugs or any part at all which was for his own consumption when he was interviewed by the police shortly after his arrest.

Similarly, other than the “trafficking in a dangerous drug” convictions, the 2nd defendant has never been convicted of any “possession of a dangerous drug” offence.

In these circumstances, and having considered the facts surrounding the 1st and the 2nd counts, I reject the 2nd defendant’s claim that he had any significant amount of the drugs for his own consumption as claimed.

Sentencing Considerations

The tariff for trafficking in “Ice” was laid down in Attorney‑General v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004, 11 August 2004, (unreported).

For trafficking between 10 and 70 grammes of “Ice”, a term of imprisonment of between 7 and 10 years is called for.

In respect of the 2nd count, although it involved multiple drugs, the amounts of flunitrazepam and cannabis could be said to be negligible. I would therefore ignore these drugs, and would only take into account the amount of “Ice” when sentencing the defendants. (see HKSAR v Wong Kam Wo [2001] 2 HKLRD 290).

Further, as the drugs involved in the 1st and the 2nd counts were seized on the same day and the offences arose on closely‑related facts, I am going to adopt an overall starting point after having added the amounts of narcotic together. (see, for example, HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42 and HKSAR v Wong To CACC 508/2000, 7 August 2001, (unreported)).

Having considered the facts of this case and having taken into account the combined quantity of 54.49 grammes of “Ice” involved, I consider an overall starting point of 9 years to be appropriate in respect of both the 1st and the 2nd counts, and I shall adopt this as the starting point for each count.

As regards the 3rd count, the “Ice” involved was 10.85 grammes. For this quantity, and having examined the relevant facts, I am going to adopt a starting point of 7 years. This offence is separate and distinct from the first two counts and it was committed whilst the 1st defendant was on bail in relation to identical offences. I therefore consider that, subject to the question of totality, this sentence should be ordered to run consecutively to that in respect of the first two counts. (see, for example, HKSAR v Chow Lap Pui [2007] 2 HKC 342).

The Sentence (1st Defendant)

The 1st defendant was convicted after trial. She is therefore not entitled to any reduction in respect of a plea. I have also considered the mitigation put forth on behalf of the 1st defendant. There is nothing which would entitle her to any reduction in sentence.

As mentioned above, I am going to adopt 9 years as the starting point for each of the 1st and the 2nd count, but I am going to order that the sentences be served wholly concurrently. As for the 3rd count, the starting point is one of 7 years as indicated above. In principle, this term should be served wholly consecutively to the terms for the first two counts as they were distinct offences and were committed on different occasions. However, applying the totality principle, I am of the view that an overall term of 13½ years should sufficiently reflect the criminality of the 1st defendant in these three offences as well as the fact that she had committed the third offence while on bail.

I therefore order that 4½ years of the 7-year term in respect of the 3rd count is to run wholly consecutively to the concurrent terms of 9 years in respect of the 1st and the 2nd counts, thus making a total of 13½ years for all these three offences.

The Sentence (2nd Defendant)

The 2nd defendant pleaded guilty to the first two counts at the beginning of the trial. He will receive a one‑third reduction for that. Other than his plea, there is nothing in this case which would warrant any further reduction in sentence.

9 years reduced by one-third is 6 years. The 2nd defendant is therefore to serve a term of 6 years for each of the 1st and the 2nd counts. Both terms are to run wholly concurrently, making a total of 6 years’ imprisonment.