HKSAR v. NG MAN LOI AND ANOTHER

DCCC 1211/2023& 721/2024

(Consolidated)

[2024] HKDC 1754

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1211 OF 2023 & 721 OF 2024 (Consolidated)

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REASONS FOR SENTENCE

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1.  The defendant, Mr Ng, has pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Both offences committed on 9 July 2023 at locations in Yuen Long.

2.  The essential facts are very simple.  Show that the defendant was walking to his car with his girlfriend, who was originally charged the 2^nd defendant in this case, in an apartment where the 1^st defendant lived.  They were stopped by a team of police officers.  On a search of the  defendant, a total 2.95 grammes of cocaine was found in some 26 transparent resealable plastic bags.  That is the quantity found in the 1^st charge.  On arrest, the defendant said that cocaine was for his own consumption.

3.  The defendant, as I call him now, was then taken back to the flat, in what is described as Twin Regency, by police officers for a search and there further drugs were found.  One plastic bag containing various resealable plastic bags ,in fact, six resealable plastic bags with a further 0.66 grammes of cocaine; then a further plastic bag containing another six resealable plastic bags containing 1.11 grammes of ketamine.  Other items were found, such as scissors, spoons, electronic scales, some cash.  The defendant again said the drugs were bought for his own consumption.

4.  The total quantity of drugs being dealt with here is 3.61 grammes of cocaine and 1.11 grammes of ketamine disclosed in the two charges.  The estimated street value of that quantity of drugs at that time was $5,314.37.

5.  The defendant originally entered a not guilty plea to this charge, leading to this case being fixed for trial.  There have been, as I understand it, negotiations which led to the 2^nd defendant, as she then was, being discharged from the case, and the charges that were brought against her as well been left on the court file.

6.  As far as defendant’s record is concerned, he is a person of clear record.  He is 28 years old, educated to secondary education in Yuen Long.  He is described as having a drug consuming habit in his antecedent statement, consuming cocaine daily with a total expenditure of about $400.  He has been working for his father, who works in grocery business, and I have also seen a letter from that gentleman recommending his son.

7.  The original 2^nd defendant was in a relationship with the 1^st defendant at the time of the arrest.

8.  As far as the question of sentence is concerned, the drugs really form all part of one transaction in reality.  The defendant had some of the drugs on his person at the time.  There is a strange paragraph in the original Agreed Facts, which said “The drugs were found on his body at the time of arrest before he forgot to leave them at home after purchasing them.”  That, I think, really means is that the defendant was supposed to leave the drugs, that were found on him, at home but forgot to do so.

9.  So I am going to treat the overall approach to sentencing as if the drugs in the two separate charges as one overall quantity that I have to deal with.  Firstly, it is necessary to establish an overall starting point for sentence on these two charges and on this quantity of drug.  I bear in mind what has been said about the approach to sentencing.  Clearly, both cocaine and ketamine are drugs that are dealt with in guideline sentencing.  The courts have recently, in the case Yusuph, being enjoined not necessarily to treat this as entirely as a mathematical exercise, but clearly the predominant part of determining sentence is a mathematical exercise based on the guideline sentences.

10.  The guidelines can be found in cases of HKSAR v Lau Tak Ming, CACC 230/1989, which is a guideline that is established for heroin, and the ketamine guideline can be found in the case of HKSAR v Hii Siew Cheng, which is CAAR 7/2007.  Up to 10 grammes of cocaine, or heroin, is governed by a tariff of between 2 to 5 years; and between 1 to 10 grammes of ketamine is a tariff of between 2 to 4 years.  It would appear, on this basis, that cocaine is the more serious drug that I am dealing with and is in the larger quantity of being 3.61 grammes of cocaine.

11.  The other factor that I have to bear in mind in sentencing here is there is a mixture of drugs, which is said to be more serious.  There are two types of drug involved.  The approach to sentencing can be seen in HKSAR v Chan Yuk Leong, CACC 318/2013.  The approach set out in the cases is that the court is to take what is the starting point for the most serious drug and then adjust that to reflect the fact there is another drug being dealt with.  That starting point for sentence is then subject to three separate tests, described as the absurdity test, the conversion test and the ratio test.  I do not propose to set out those figures in determining the sentence here.  But the sentence based on a mathematical approach and the guidelines would lead to a starting point for the cocaine at 3 years and 4 months’ imprisonment, or 40 months’ imprisonment, and that would need some adjustment for the fact that there is also a quantity of ketamine.

12.  Taking the fact that this is not necessarily a mathematical approach, I have decided that the starting point for sentence that I will adopt in respect of the full quantity of drugs is one of 40 months’ imprisonment, again 3 years and 4 months’ imprisonment.

13.  There are no other aggravating factors for me to deal with.  I must now deal with the mitigating factors.  The first obvious mitigating factor is defendant’s plea of guilty.  He is entitled to a deduction from this sentence for the fact that he has pleaded guilty.  The plea is today, at trial date, so he is not entitled to a full 30 per cent discount because of that.  But the degree of discount is still a discretionary figure to be determined by the court.  I bear in mind that the determination for plea was obviously influenced by the fact the defendant has said the drugs are for his own consumption throughout; and secondly, by the fact that his girlfriend was also subject to these charges, but has only been discharged today.  I will take a deduction for sentence to reflect his plea of guilty, of one of 25 per cent, which from the 40 months’ imprisonment leads to a figure now of 30 months’ imprisonment.

14.  The second mitigating factor is that the defendant’s statement that the drugs are for his own self-consumption, or a substantial quantity of the drugs would be for his own self-consumption.  That would appear to be supported by the fact the defendant has a drug habit.  That is established from what he said in his antecedent statement and by the screening test, which shows the presence of cocaine in his system on 9 July 2023 after he was arrested.  This is supportive of the fact the defendant had a drug problem at that time and that he would consume at least a proportion of the drugs for himself.  If the defendant consumes a substantial portion of the drugs, then the court is entitled to give a discount between 10 to 25 per cent of the figure to reflect that self-consumption.  The defendant is also of what would describe as the lowest end of trafficking in that he appears to share with his friends and other people on a social basis.

15.  I have determined that a further deduction from the 30 months can be given the defendant in this case.  I will make a deduction of what is 20 per cent of that figure, which is 6 months’ imprisonment.  That would lead to a final figure of 24 months’ imprisonment for this defendant.

16.  So what I shall do is simply order that that be the sentence of imprisonment on both the 1^st and 2^nd charge in respect of this defendant. Final sentence, 24 months’ imprisonment.