HKSAR v. NG LOK FUNG JERRY

 DCCC1005/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1005 OF 2009

----------------------

----------------------

-------------------------

Reasons for Sentence

-------------------------

1.  The defendant pleaded guilty to 1 charge of "Trafficking in dangerous drugs". The dangerous drugs involved are ketamine and cocaine.

Summary of Facts

2.  In the early hours on 18 July 2009, WPC 7825 ("PW1") posed as a customer at Club JP situated at 1/F, New Mandarin Plaza in Tsim Sha Tsui East. She observed the defendant carrying out 2 suspicious transactions near the rear exit of the club.

3.  At about 3:40 am, PC 34209 ("PW2") and his team members conducted a licence inspection at Club JP, during which PW1 identified the defendant to PW2. PW2 searched the defendant outside the club and found the following items in the rear right pocket of his shorts :

(i)  1 resealable plastic bag containing 8 resealable plastic bags, all of which containing a suspected dangerous drug (collectively "E1"); and

(ii)  1 resealable plastic bag containing 4 resealable plastic bags, all of which containing a suspected dangerous drug (collectively "E2").

4.  PW2 arrested the defendant. Under caution, he admitted that he sold "K" and "coke" as he had no money. In his Record of Interview, the defendant admitted under caution that the 8 packets found on him were "K" and the 4 packets, "coke". He intended to sell the "K" and "coke" at Club JP at the respective prices of $200 and $500 per packet.

5.  The Government Chemist examined the drugs seized from the defendant. E1 and E2 were respectively found to contain a total of 6.19 grammes of a powder containing 5.08 grammes of ketamine and a total of 1.20 grammes of a solid containing 0.90 gramme of cocaine.

Mitigation & Sentence

6.  The defendant is now 24 years old. He is married and worked as a transportation worker at the time of arrest. He has 1 pervious conviction in December 2003, which is "Possession of a dangerous drug", and he was fined $500. Defence counsel Mr. Omar informed me that the defendant is a drug user; he sold drugs to feed his addiction.

7.  The sentencing tariff for trafficking in cocaine is the same as heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370). For up to 10 grammes, the sentence ranges from 2 to 5 years. The tariff for trafficking in ketamine is laid down in SJ v HII Siew Cheng [2009] 1 HKLRD 1. For over 1 gramme to 10 grammes, the sentence ranges from 2 to 4 years.

8.  In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006. I also bear in mind the remarks made by Ma CJHC in YIP Wai-yin that sentencing on the basis of individual drugs may lead to absurdity where the addition of the sentences for each individual drug leads to a higher overall sentence than if the whole quantity of the cocktail or batch merely contained the more or most serious of the various drugs.

9.  The defendant trafficked in a cocktail of drugs consisting of 5.08 grammes of ketamine and 0.90 gramme of cocaine. According to the sentencing tariffs, for 0.90 gramme of cocaine, the appropriate starting point is 2 years. For 5.08 grammes of ketamine, the appropriate starting point is 3 years. In the present case, had the whole quantity of the cocktail been the more serious drug (i.e. almost 6 grammes of cocaine), the starting point would have been 3.5 to 4 years. Based on the nature and quantities of the cocktail components, I consider that the "combined" approach would arrive at a realistic and fair sentence.

10.  To adequately and accurately reflect the seriousness of the drugs involved as well as the more potent and harmful effect of a cocktail drug, I adopt a starting point of 4.5 years imprisonment. One-third discount is given for the guilty plea, reducing the sentence to 3 years. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass is therefore 3 years.