HKSAR v. Ngan Kam Wah
|
HCCC 61/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 61 OF 2014 -----------------
-----------------
--------------------------------- Transcript of the Audio Recording --------------------------------- COURT: The defendant, Mr Ngan Kam-wah, faces one count of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence are that the defendant on the 16th day of October 2013 in Hong Kong unlawfully trafficked in a dangerous drug, namely 16.78 grammes of a crystalline solid containing 16.31 grammes of methamphetamine hydrochloride. He denies the charge, but pleads guilty to simple possession of the dangerous drug and his plea is accepted by the prosecution. He is convicted of simple possession of the dangerous drug by this court. Facts Admitted On 16 October 2013 at about 7.43 pm, police officers stopped and searched the defendant who appeared to be in a trance inside an amusement games centre in Yau Ma Tei. Inside the sling bag of the defendant, a “lai see” envelope containing methamphetamine hydrochloride was found. The defendant immediately said to the police officers, “Sir, I have more.” Inside the trousers pocket, the police officers found four bags of methamphetamine hydrochloride. On being arrested and cautioned, defendant said, “Sir, I bought the ‘Ice’ for my own consumption. Don’t ask me anything else. I won’t say anything else.” Police officers went to have a search at the defendant’s home, but nothing incriminating was found. The methamphetamine hydrochloride found was a crystalline solid of a total weight of 16.78 grammes containing 16.31 grammes of methamphetamine hydrochloride. At the time of the offence, the street value of the methamphetamine hydrochloride was $11,360. Criminal Record The defendant has 13 previous convictions, of which six were possession of a dangerous drug, two were possession of equipment fit and intended for consuming dangerous drug, and two were trafficking in a dangerous drug. He was last convicted on 10 January 2011 of two counts of trafficking in a dangerous drug and one count of possession of equipment fit and intended for consuming a dangerous drug and was sentenced to a total of 48 months’ imprisonment. Mitigation The counsel for the defendant submits to the court that the defendant is aged 41, born in Hong Kong in 1973, received Form 3 education and has been separated from his wife because of his drug addiction. The defendant began to take drug at the age of 18, first number 3 heroin and then number 4 heroin. He has been taking “Ice” for the last six years, with a dosage of 1 gramme every day, taken in three hits. Each hit would last for about four to five hours. He consumed the drug at home and, because he lives with his parents, younger brother and younger sister, he threw away the “Ice” bottle after every consumption. The defence counsel tells the court that on the day of the offence the defendant had gone to the amusement games centre to purchase half an ounce of methamphetamine hydrochloride for $3,000. The courier of the dangerous drug gave him part of the “Ice”, which the defendant kept in a “lai see” packet. The rest of the “Ice” were later taken to the defendant and he kept it inside his trousers pocket. The defendant had consumed “Ice” shortly before that and that was the reason why he was in a trance at that time. The defence counsel says that the defendant was a crane operator earning more than $13,000 a month. He asks leniency for the defendant. Sentence The court bears in mind that although the defendant initially faces a count of trafficking in a dangerous drug, the charge he now stands convicted is possession of a dangerous drug and he has to be sentenced accordingly. The amount of dangerous drug involved in the present case is by no means small and the latent risk of the dangerous drug falling into the hands of other people was high. In the case of HKSAR v Mok Cho Tik, the Court of Appeal said that the starting point for an offence of possession of a dangerous drug for a bona fide user is in the range of 12 to 18 months’ imprisonment, and that the latent risk factor, the quantity of the dangerous drug and whether the defendant is a persistent offender have to be taken into account in sentencing. The defendant has a lengthy criminal record, with a substantial number of dangerous-drug-related convictions, including six possession of a dangerous drug and two trafficking in a dangerous drug convictions. He committed the present offence shortly after he was discharged from the prison. After considering all the circumstances, the court adopts a basic starting point of 18 months’ imprisonment and enhances it to 2 years’ imprisonment for the latent risk factor and the factor of the defendant being a persistent offender. Giving credit to the defendant for his plea of guilty, the court sentences him to 16 months’ imprisonment. |