HKSAR v. NG CHI KEUNG

DCCC 1103/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1103 OF 2008

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Reasons for Sentence

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1.  The defendant, a 61-year-old married father of 4 children, pleaded guilty before me to 3 counts of offence, namely;

(1)- Trafficking in dangerous drugs, the drugs are 10.71 grammes of a solid containing 6.43 grammes of cocaine;

(2)- Possession of apparatus fit and intended for the inhalation of a dangerous drug, the apparatus are 4 bottles and 2 plastic straws;

(3)- Failing to surrender to custody without reasonable cause.

2.  The Prosecution case were that in the morning on the day of offence (11^th April 2008), a party of police officers laid ambush outside a hotel room in Wan Chai, sometime later when the defendant came out of the room, the officers intercepted him and brought him back into the room for a search. A woman was inside at the time.

3.  On the desk, the officers found the drugs in 2 boxes, the apparatus (the subject matters of charge 2) with the remains of drugs plus an electronic scale.

4.  In a subsequent interview with the police, the defendant stated, among other things, that:

(a)- He had already lived in the room for about a week before the arrest;

(b)- He was a drug addict and he bought the drugs in question for about $7,000;

(c)- His friends would come to the room to consume drugs provided to them by the defendant and in return they would pay him to share the rent of the room;

(d)- The bottles were used for inhaling dangerous drugs;

(e)- The electronic scales were used for weighing cocaine;

5.  On 6^th January 2009, the defendant failed to turn up for his court hearing in the District Court as he was so required by the Court, a warrant for his arrest was issued.

6.  According to the immigration records, the defendant left Hong Kong at 10 a.m. on the very same day he was supposed to appear in court. And only after almost 7 years had passed, did he make known to the authorities by surrendering himself to the Wan Chai Police Station.

7.  The defendant has amassed 11 previous convictions in the past, 8 of them related to drugs (No trafficking though). His last two convictions were to do with drugs and on that occasion he was given suspended sentences, the overall sentence was one of 4 months suspended for a period of 18 months. By committing the present drug offences, he was in fact in breach of those suspended sentences.

8.  In mitigation, defence counsel submitted that the defendant was a drug addict and part of the drugs was for his own consumption; he rented the hotel room to share drugs with his friends. This was social trafficking, counsel said, since the money the defendant got from his friends was used to go shares in the hotel rent.

9.  Counsel further said that the defendant had a part-time job as a driver at the time (This is contrary to what was stated in his antecedent statement in that he was unemployed at the time of arrest in 2008), making about $300-$400 a day but not working every day.

10.  The reason for his absconding, counsel explained, was because one of his daughters was unfortunately disabled by an accident in China and the defendant therefore went over there to take care of her. Her daughter, who suffered the disability, has written a letter to court to plead for leniency on his behalf.

11.  Defence counsel said that despite being a long-term drug addict, the defendant was able to kick the habit while ministering to the needs of his disabled daughter. Defendant chose to come back after all these years because he wanted to put his drug addiction behind him and rebuild his connection with his family.

12.  Insofar as his claim that part of the drugs was for his own consumption is concerned, I can go along with that. Looking at his record, his first drug offence went back as early as 1990, and he would commit further drug offences every few years; I believe he had been a drug abuser for a long time. The evidence showed that he rented the room not for a day or two, but for an extended period of time, it’s reasonable to expect that when staying in the hotel with the drugs, he might use some of it to satisfy his craving for drug.

13.  On the other hand, his claim of non-profit making drug activities going on in the hotel room would hardly have been true. Even accepting that he worked part-time as a driver at the time (which I doubt very much), he only made about $300-$400 a day, at most he would have made about $7-8,000 a month on average. He said he bought the drugs in question for about $7,000, which did not seem to last for a month. Given a meagre income like that, his drug bills would be likely more than his income. No one in his right mind would in such straitened circumstances have rented a hotel room just to share drugs with friends and not making any profit. Upon being probed by the court, the defendant said through his counsel that he did make some profit but not much.

14.  On the evidence before the court, although he was not being charged with keeping or operating a divan, he certainly was operating some kind of business relating to drugs at a profit.  

15.  In any event, whether you call it social trafficking or commercial trafficking, I do not think there would be any difference in substance between the two in terms of the harm such activities would bring to the society.

16.  Now I come to sentencing, there are sentencing guidelines for this type of offence (trafficking), trafficking up to 10 grammes of cocaine, the terms for consideration are 2 to 5 years.

17.  Given the drugs in this case, I take 46 months as staring point, reduce it first to 40 months (13% discount) for the fact that part of the drugs was for his own use, and then reduce that by a further 25% to 30 months to reflect his plea.

18.  Generally speaking, a defendant is entitled to a full 1/3 discount for a timely plea, but in the present case the defendant had absconded for almost 7 years (just 2 months short ), and in any event his plea is anything but timely. To his credit, he nevertheless surrendered himself to the authorities. I would have given him a lesser discount (i.e. 20%), had it not been for the fact that he surrendered himself.

19.  For the offence of possession of the apparatus, I take 8 months as starting point, and reduce it to 6 months for his plea (25% discount).

20.  For the offence of absconding, I take 9 months as starting point, reduce it by 1/3 to 6 months to reflect his timely plea.

21.  It’s worth mentioning the opinion as expressed by the appellate court in the case of Ko Chun Hung CACC 71/2007, at paragraphs 23, 24 and 25:

Para. 23

“As Stock JA observed in HKSAR v Chow Tak-fuk CACC 428/2004, unreported:

‘………….those might be minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.’”

Para. 24

“We accepted that having been sentenced to 4 months’ imprisonment for absconding and then not being granted the full one-third discount for pleading guilty again because of absconding, the appellant appeared to have been punished twice for the same facts. However there was a logical foundation for it.”

Para. 25

“By absconding, the appellant had committed a fresh offence and had to be punished separately. By absconding, the appellant also rendered the administration of justice more costly, and more time-consuming, the judge was entitled to exercise his discretion by reducing the percentage of discount that he would otherwise obtained.”

22.  In Ko’s case, the appellant had absconded for a period of almost 2 years, the sentencing judge took 6 months as starting point and ordered the term to run consecutively to the terms of the other offences.  The appellate court approved it.

23.  And in Wong Yui Ming CACC 348/2003, the appellant admitted having absconded for about 22 months and was given 12 months for it. And such term was ordered to run consecutively to other terms. On appeal, the only complaint is that the starting point adopted by the sentencing judge of 18 months’ imprisonment exceeded the statutory limit of 12 months. Allowing the appeal, the higher court said that a starting point of 9 months is appropriate.

24.  As can be seen from the above and indeed other similar cases (i.e. Lam King Yin CACC 328/2012), the usual term for absconding for a period of a couple of years is likely between 6 to 9 months and such term is normally made consecutive to other term. It is almost 7 years in the instant case, based on the above authorities and other similar cases, I therefore take 9 months as starting point.

25.  The defendant is also found in breach of the suspended sentences handed down on him in May 2007 for the offence of possession of dangerous drugs and possession of part I poison, counsel said the defendant was able to keep out of trouble more than half way through the suspension, and asked the court be lenient with him.

26.  Surely he had been warned by the court at the time of sentencing that he was not to commit further offences during the suspension, or he would have to serve the term in addition to other terms. Here the defendant not only committed further offences, but also a much more serious one than before, i.e. trafficking. I see no reason not to activate it.

27.  Section 109C (2) of the Criminal Procedure Ordinance provides :

“Where a court orders that a suspended sentence shall take effect, with or without any variation of the original term, the term of such sentence shall commence on the expiration of another term of imprisonment passed on the offender that, by reason of special circumstances, the sentence should take effect immediately.”

28.  Having heard all the mitigation put forward, I find no special circumstances for not ordering such term to run consecutively to the terms of other offences in accordance with S. 109C.

29.  Finally, the sentences for each of the charges are as follows:

Charge 1- 30 months’ imprisonment;

Charge 2- 6 months’ imprisonment;

Charge 3- 6 months’ imprisonment.

30.  I order that the term for charge 1 be run concurrently with that of charge 2 but consecutively to charge 3; the total term is one of 3 years.

31.  The 4 - month suspended sentence is to be activated and is ordered to run consecutively to the total term of 3 years, the final term is one of 3 years and 4 months.