CRIMINAL CASE NO. 634 OF 2009
HKSAR
v.
Ng Chun Fai
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Before: H H Judge Tallentire
Date: 19 November 2009 at 10.15 am
Present: |
Mr Sherry, Anthony James, Counsel on fiat, for HKSAR
Mr Khosa, David A.S. Esq., instructed by Yip & Co., for the Defendant |
Offence: |
(1) Trafficking in Dangerous Drugs(販運危險藥物)
(2) Possession of a Dangerous Drugs(管有危險藥物)
(3) Possession of Poison(管有毒藥) |
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Reasons for Sentence
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1. Defendant you pleaded guilty to one offence of possession of a dangerous drugs contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134 and to possession of Part 1 Poison contrary to section 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap.138.
2. In respect of those offences you admitted the brief facts and I convicted you. In respect of the further, and more serious offence, of trafficking in dangerous drugs you pleaded not guilty but I convicted you after trial of the one offence contrary to sections 4(1)(a) and (3) of Cap.134.
3. The facts in relation to that offence were dealt with at length in my verdict. It is not necessary to repeat them. They are well known to everyone. Suffice it to say that you were in possession of the following dangerous drugs for the purpose of trafficking; 421.82 grammes of herbal cannabis; 22 tablets containing 0.18 grammes of nimetazepam; 19 tablets containing 1.92 grammes of MDMA, otherwise known as ecstasy and two quantities of mixture containing cocaine, the first being, 1.97 grammes containing 1.05 grammes of cocaine and the second, 4.69 grammes of mixture containing 3.29 grammes of cocaine. The total of cocaine possessed by you for the purpose of trafficking was therefore 4.34 grammes.
4. In respect of the other two offences, the possession of dangerous drugs, you had 0.04 grammes of powder containing ketamine and 21 tablets and one fragment of zopiclone. You admitted to five previous convictions comprising six offences four being drug related. However, none of those convictions relate to trafficking.
5. I adjourned the case for the preparation of a probation officer’s background report and a DATC report. I was not considering making a Drug Addiction Treatment Centre order but I wished to test the level of addiction if any. I note that you are deemed not to be drug dependent and Mr Khosa has produced reports showing that you have been drug free. The reports are very positive reports.
6. On your behalf, Mr Khosa entered mitigation. He tells me that you accept the contents of the reports and points, as I said, to their generally supportive and positive nature. The reports do confirm that you support your aged mother, the children of your dissolved marriage and that you are presently cohabitating and have done so for some time with the young lady who is standing by you.
7. Your work record is good and I note that it is a positive influence in your life that upon release your present employers undertake to re-employ you. One matter in your favour is that now that you do accept that you were trafficking so far as the cannabis was concerned, you maintain that this trafficking was in order to pay for the other drugs that you had turned to.
8. There was some discussion between myself and counsel about the level of sentence to be imposed in this case. I note the contents of the letter that you have written to court and also the letters that have been received.
9. I turn now to the sentence. Trafficking in dangerous drugs is a very serious offence indeed. Such offences can only be met by substantial prison sentences. In this case we are dealing with a cocktail of drugs and I have noted the approved approach to sentencing. In sentencing you I have taken into account the facts of the case, the nature of the charges and the contents of the reports.
10. It is in your favour that you now admit that you were in fact trafficking in drugs and this represents a partial acceptance of the facts. There are positive sides to your character. I have mentioned these; you are, it appears, a good worker; you are a man who supports his family. It is to be noted that your co-habitee is standing by you in this problem.
11. I also note that though you have previous convictions mainly drug related that this will be the first time that you have gone to prison. I also note that this is your first conviction for trafficking.
12. As I have mentioned this is a cocktail of drugs including cannabis; nimetazepam; ecstasy and cocaine. The nimetazepam is a very small quantity indeed, involving 22 tablets and the ecstasy involves 19 tablets, a modest quantity of drugs.
13. The cannabis is in herbal form and being approximately just over 400 grammes. The most serious and worrying of the drugs is, of course, the cocaine. The amount of cocaine involved in this is 4.34 grammes. The tariff to be applied to that quantity of cocaine being up to 10 grammes is 2 to 5 years.
14. I have resolved in your case, if I err at all, that is to be on the side of mercy and to keep the sentence as short as possible consistent with my public duty to deal with drug traffickers.
15. As I have mentioned, the cocktail embodies four drugs. My approach has been to take the most serious which is the cocaine and regard any sentencing that would have taken place as being separate counts as being concurrent.
16. Taking all the circumstances into account including the mitigation I have referred to, you will go to prison for 30 months for the trafficking.
17. In respect of the Part 1 poison and the possession of dangerous drugs I take a starting point on each case of 6 months reduced to 4. As I indicated to Mr Khosa
these will be served concurrently with each other and concurrently with the
overall sentence. Therefore the overall sentence is one of 30 months
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Tallentire
District Judge |