HKSAR v. Ng Kam Sum

DCCC 641/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 641 OF 2014

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 65 years) appeared before the court this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The dangerous drugs involved in this case is heroin and the quantity of the heroin is 14.62 grammes of a mixture containing 10.34 grammes of heroin hydrochloride.

Facts

3.This is a classic simple stop-and-search case as revealed in the summary of facts which was agreed by the defendant. 

4.At around 6:50 pm on 27 May 2014, a team of plainclothes police officers were conducting an anti-narcotics operation in the vicinity of Shek Kip Mei Estate, Shek Kip Mei, Kowloon, Hong Kong.

5.At around 8:22 pm, the defendant was spotted by the policemen acting furtively outside Ground Floor, Block 22 of the estate.  Subsequently, the defendant was intercepted by the police for enquiry and search.

6.Upon search, a plastic bag containing a transparent resealable plastic bag containing 28 packets of suspected dangerous drugs was found in the right pocket of the defendant’s pants.

7.The defendant was immediately arrested by the police and cautioned.

8.Under caution, the defendant admitted that he helped “Chu Chai” to deliver the heroin to others, for which he would have thousand dollars as a reward. 

9.He had with him cash of $2,590 and also one mobile phone on his person at the time of the arrest.

10.In the subsequent video recorded interview, the defendant gave more details about the offence and said that in the early hours on 27 May 2014 he bumped into “Chu Chai” on the street and disclosed to him that he was in need of money.  As a result, “Chu Chai” asked the defendant to deliver the dangerous drugs for him and, as instructed, defendant collected the bag of the dangerous drugs from a flowerbed near Block 22 of Shek Kip Mei Estate at around 8 am on the same day.  The defendant was expecting to receive HK$1,500 as a reward for delivering the drugs to the others.

11.The estimated street value of the dangerous drugs, according to the summary of facts, was about HK$9,854.

Criminal record and the background of the defendant

12.In the past, the defendant had appeared in court in no less than 30 occasions, between 1961 and 2009, involving altogether 35 criminal charges, of which 24 were dangerous drugs related and more importantly, nine of which involving trafficking in dangerous drugs.

13.It is noted that in 1986 and 1994, the defendant had already been sentenced firstly in the District Court and later in the High Court for an imprisonment term for as long as 5 years and 5½ years respectively.

14.However, despite these long term of sentences imposed on the defendant, he obviously did not mend his way and continued to commit offences relating to trafficking in dangerous drugs.

15.In 2003, he was again sent by a magistrate to 2 years’ imprisonment for another trafficking in dangerous drugs offence and in his last conviction, which was in 2009, he was sent away by a magistrate for a term of imprisonment for 16 months for a similar offence.  The defendant was last discharged from prison in August 2010. 

16.At the time of the arrest, he worked as a casual cleaning worker, earning an average monthly income of 6,000 to 7,000 a month.  He is also a recipient of CSSA in a sum of $3,200 a month. 

17.He lives together with his aged old parents.  He was married three years ago.  His wife, aged 35, lives in the Mainland.  Each month, the defendant had to contribute $2,000 to $3,000 per month to his wife in the Mainland.

18.Defendant was born in Hong Kong and he received only a primary education level.  He started abusing the dangerous drugs as early as in the age of 15.

Mitigation

19.In mitigation, Miss Amanda Lee, counsel for the defendant, had urged the court to consider the fact that the defendant was very remorseful and he pleaded guilty and therefore saving court’s time.

20.Miss Lee said the defendant was a deep-rooted drug addict for over 40 years.  He managed to stay away from the trouble of the law since he was last discharged from prison for some 3½ years, during which time he went to methadone clinic to cure his drug habits two to three times a week.

21.He also worked diligently as a cleaning worker and earned his living to support his parents and also his wife in China.

22.For the present offence, Miss Lee informed the court that the defendant was just in need of money and he tried to earn that HK$1,500 in order to assist his living.

23.Miss Lee had referred the court to the usual sentencing guideline in respect of heroin hydrochloride in the case of R v Lau Tak Ming & Others [1990] 2 HKLR 370.  For the quantity of heroin from 10 to 50 grammes, the range of the sentence should be 5 to 8 years’ imprisonment.

24.Miss Lee also recognised and acknowledged the fact that the defendant is a repeated offender.  However, she urged the court to consider the defendant’s old age as well as the fact that he had managed to stay away from the trouble of the law for a long period of time.  She urged the court to consider to adopt a starting point not over 5½ years’ imprisonment.

Sentencing considerations

25.Trafficking in dangerous drugs is, of course, a very serious offence and the defendant should know better than any average defendant for this charge because he has a long history of criminal records involving dangerous drugs and trafficking in dangerous drugs, in particular.

26.The court can never accept economic reasons as an excuse for committing crime like this.

27.I have, of course, much sympathy for the aged old parents of the defendant and also the wife of the defendant, whose livelihood is going to be much affected because of the incarceration of the defendant but the defendant should think twice before committing the offence.

28.The Court of Appeal has also in numerous authority emphasised the fact that family circumstances virtually played no part in mitigation, especially in a serious offence such as trafficking in dangerous drugs.

29.The defendant is a repeated offender.  According to the case of HKSAR v Chan Pui Chi [1999] 2 HKLR 830, the sentencing court has a duty to consider increasing the sentence of a repeated offender in order to, firstly, deter the defendant from committing the offence again in the future and, secondly, to protect the public.

30.The present offence involves heroin hydrochloride and the quantity is a mixture containing 10.34 grammes of heroin hydrochloride. 

31.According to the tariff as laid down in Lau Tak Ming, I will adopt 5 years as a starting point. 

32.In light of the fact that the defendant is a repeated offender, I shall enhance the sentence but taking into account what has been urged on his behalf by Miss Lee, I shall only increase the sentence by 3 months.

33.Hence the starting point is 63 months’ imprisonment.

34.The defendant pleaded guilty to which he would be entitled to the customary one-third discount.

Sentence

35.After reduction, the defendant is sentenced to 42 months’ imprisonment, which is 3 years and 6 months.