HKSAR v. NG KA HO AND ANOTHER

DCCC 269/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 269 OF 2011

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Reasons for Sentence

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Charges and facts

1.  D1 is convicted after trial of attempt to traffic in a dangerous drug (Charge 1).  D2 has pleaded guilty before trial to trafficking in a dangerous drug (Charge 2) and resisting police arrest (Charge 3).   

2.  The police intercepted D1 and D2 when D2 was passing a bag of ketamine to D1 in Metro City Phase 1, Tseung Kwan O (“MC1”).  D1 and D2 both released their hands and the bag dropped to the floor.  D2 picked it up and resisted the arrest of the police officer.  He fled but was later subdued. 

3.  According to D2, an old friend had asked him to deliver the bag of ketamine to someone in MC1 for a reward. 

4.  After arrest and caution, D1 orally admitted receiving the ketamine for somebody.  There was $5,006 cash found on D1. 

5.  The retail price was estimated at $12,812 for the ketamine.  The ketamine mixture weighed 112.39 grammes, which contained a total of 90.57 grammes of ketamine in 9 packets.

Personal background and mitigation

6.  D1 is 21 years old, a property agent before arrest.  He has a clear record.  He lives with his elder brother and father.  Defence counsel accepts the sentence in the present case being little affected by its having ended up in attempt.   

7.  D2 was 16 at the time of the offence and is still 16 now.  He has 1 previous conviction for simple possession in 2008.  In consequence, he received probation for 15 months.  He last worked as a casual transportation hand.  His counsel urges me to take into account his plea of guilty and his assistance in proving part of the prosecution case, namely relating to his being instructed by an old friend to deliver the ketamine to MC1.  Defence counsel is aware that his other evidence is infested with inconsistencies and not acceptable by this Court.

Sentencing guidelines

8.  In Secretary for Justice v Hii Siew Cheng CAAR 7/2006, the Court of Appeal laid down sentencing guidelines for trafficking in ketamine.  For 50 – 300 grammes, the sentence is 6 – 9 years. 

Sentencing D1 and D2

9.  In the case of D2, he is and was 16.  On the one hand, his age shall attract very little discount because the court shall not encourage drug traffickers to engage young people to take part in trafficking in for a lighter sentence.  On the other hand, for a person being so immature and gullible, the court has to adjust the sentence to reflect his own culpability.  In the circumstances, I take 5 ½ years as the starting point for Charge 2.  I reduce it by one-third due to his plea of guilty.  I give a further 6 months for his evidence given in court.  His sentence is 3 years and 2 months for Charge 2.  His sentence for resisting arrest (Charge 3) is 3 months.  By totality, the sentences shall be concurrent.    

10.  In the case of D1, I take a starting point of 6 years (Charge 1).  His clear record, not in the nature of a positive clear record, is not a mitigating factor.  There are no mitigating factors.  His sentence is 6 years.