HKSAR v. NG KAI CHI

DCCC 286/2019

[2019] HKDC 1151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 286 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon his own guilty plea of the charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The dangerous drug involved was 6.96 grammes of methamphetamine hydrochloride.

Facts

2.  At about 12:47 am on 4 January 2019, PC17174 (“PW1”) intercepted the defendant at the staircase of 1/F, Luen Tak Apartments, No. 45 Smithfield, Kennedy Town, Hong Kong.

3.  PW1 searched the defendant and found:-

(i) from the left pocket of the defendant’s coat, a cigarette box which contained a transparent re-sealable plastic bag containing 6.96 grammes of a crystalline solid containing 6.96 grammes of methamphetamine hydrochloride (“ICE”) with an estimated market value of HK$3,814;

(ii) from the right pocket of the defendant’s coat, HK$10,760 cash; and

(iii) from the front right pocket of the defendant’s trousers, two mobile phones.

4.  The defendant was arrested for trafficking in a dangerous drug. Under caution, the defendant said:-

(i) he knew that the material inside the transparent re-sealable plastic bag was ICE;

(ii) he delivered the ICE from Mongkok to the Western District for a reward of HK$300;

(iii) he was an odd-job worker at construction sites;

(iv) the cash found from him was money he borrowed from his relatives and friends in the Mainland; and

(v) he was not a drug user.

5.  At the material time, the defendant had with him the dangerous drug for unlawful trafficking.

Previous record and antecedent

6.  In Hong Kong, the defendant has one previous conviction of robbery.  He was sentenced in February 1983 for 7 years’ imprisonment.

7.  The defendant was born in May 1956.  He is now 63.  He received education up to Form 2 level.

Mitigation

8.  Defence counsel Mr Wong relied on his written submissions in Mitigation for the Defendant dated 20 August 2019.  It was submitted, inter alia, that:-

(i) half of the dangerous drug in the present case was for the defendant’s own consumption, and half was brought for the defendant’s friend;

(ii) the defendant was on social security assistance of about HK$5,000 per month and he also relied on financial subsidies from his mother, siblings, relatives and friends in the Mainland; and

(iii) he started to take ICE in about July 2018 and has become a habitual user. He spent HK$1,000 odd on ICE per month.

9.  Mr Wong also submitted a mitigation letter written by the defendant’s girlfriend to this court.

Self-consumption

10.  Mr Wong informed me that Newton enquiry would not be held regarding the defendant’s contention of self-consumption.  In this connection, I have the following observations:-

(i) the defendant admitted under caution that he delivered the ICE from Mongkok to the Western District for a reward of HK$300. He did not say the ICE or any of it was for his self-consumption;

(ii) the ICE was contained in one transparent re-sealable plastic bag. It tallies with his admission that he was tasked to deliver the ICE for a reward;

(iii) he was intercepted by the police at 12:47 am in the morning at a staircase;

(iv) the market value of the ICE was HK$3,814. According to paragraph 11 of the submissions in Mitigation for the Defendant, the defendant bought the ICE at HK$2,000 odd. In light of the defendant’s financial situation, he would be able to make a profit of about HK$1,800 by selling the ICE in small quantities to other drug users;

(v) on the basis that he relied on social security assistance, the fact that HK$10,760 and 2 mobile phones were found on the defendant tallies with the inference that the defendant was a drug trafficker who trafficked dangerous drug, be it as a seller or a courier, to make money; and

(vi) whilst the defendant said he was not a drug user in his cautioned interview, the urine test result showed presence of amphetamine and cannabis in his urine sample collected about 2 days after his arrest. It shows that the defendant is not a credible or reliable person. I am not prepared to place any weight on his allegation via his counsel’s submissions that half of the subject dangerous drug was for his own consumption.

I refuse to accept the defendant’s allegation that half of the ICE involved in the present case was for his own consumption.

11.  That said, I note that the urine test conducted on 6 January 2019 showed positive result for amphetamine and cannabis.  I will therefore use my discretion to give the defendant some discount on sentence in that regard.

12.  6.96 grammes of methamphetamine hydrochloride was involved in this case.  I bear in mind the sentencing guideline laid down in AG v Ching Kwok Hung[1] and revised in HKSAR v Tam Yi Chun (No 2)[2]. In HKSAR v Chong Hung Kong HCCC 291/2009, Madam Justice Beeson (as she then was) adopted a starting point of 6 years’ imprisonment for the second charge of trafficking in 6.94 grammes of ICE.  In HKSAR v Lee Chi Ching DCCC 890/2015, HHJ CP Pang adopted a starting point of 66 months’ imprisonment for trafficking in 6.9 grammes of ICE.  As 6.96 grammes of methamphetamine hydrochloride was involved in this case, I will adopt a starting point of 69 months’ imprisonment.

13.  As I said before, I give some discount to the defendant on the ground that some of the ICE was for his own consumption.  In this connection, I will reduce the sentence by 6 months on the ground that some of the ICE was for his consumption.  The sentence is therefore reduced to 63 months’ imprisonment.

14.  I further give one-third discount to the defendant for his timely indication of guilty plea.  The sentence is therefore reduced to 42 months’ imprisonment.  The fact that the defendant did not have any previous conviction on drug related offences is already subsumed in the aforesaid one-third discount.

15.  For trafficking in a dangerous drug, the defendant’s age is not a mitigating factor.  HKSAR v Chow Chi Ming[3] and HKSAR v Lau Yuk Huen[4] were referred to in paragraph [30-30] of the 8^th edition of Sentencing in Hong Kong which reads:-

“… in HKSAR v Chow Chi Ming, Leong DJ said it was generally accepted that ‘old age, unless extremely advanced in age, is generally not a mitigating factor’. In HKSAR v Lau Yuk Huen, it was said that the 66-year-old accused was not to be regarded as old.”

16.  I have carefully considered the letter written by the defendant’s girlfriend asking for leniency, but nothing contained therein constitutes valid mitigating factor.

17.  There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 42 months’ imprisonment.