HKSAR v. NG WAI KIT

DCCC86/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 86 OF 2011

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Reasons for Sentence

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1.  The defendant appeared before me this morning and pleaded guilty to a total of three charges.

2.  The first charge: trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.  The dangerous drugs involved in this case are, namely 215.13 gramme of a powder containing 125.15 grammes of ketamine, 0.6 grammes of a solid containing 0.44 gramme of cocaine, 2.64 grammes of cannabis in herbal form and 166 tablets containing 1.05 grammes of nimetazepam.

3.  The second charge is possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.  The dangerous drug involved is 1.79 grammes of a crystalline solid containing 1.71 grammes of methamphetamine hydrochloride.

4.  The third charge: the possession of apparatus fit and intended for the smoking of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap.134.  The subject matter of the apparatus is one plastic bottle inserted with two plastic straws and one glass tube, fit and intended for the smoking of the dangerous drug, namely methamphetamine.    

5.  The facts of this case is simple and straightforward.  According to the Summary of Facts which has been agreed by the defendant before he was convicted, he was the occupier of the premises in a public housing estate in Aberdeen where he was found by the police during an anti-narcotic operation. During the house search conducted by the police pursuant to a search warrant, the police found all the above dangerous drugs inside the defendant’s bedroom. Apart from the dangerous drugs, the police also found some trafficking paraphernalia, such as an electronic scale and also a box containing 40 resealable transparent plastic bags. The police also seized cash of $1,300 in the premises which the defendant later admitted to the police that the sum represented the proceeds of sales of the ketamine.

6.  Later, in the police station, the defendant further admitted that all the items seized in his bedroom during this operation belonged to him.  He bought those drugs from a man for HK$11,000.

7.  Finally, he further admitted that the plastic bottle recovered by the police in relation to Charge 3 was used by him to smoke “Ice”.

Sentencing considerations

8.  Trafficking in dangerous drugs is, of course, a very serious offence and those who had engaged and indeed convicted in such an offence are expected to be severely punished by the court.

9.  The defendant is now aged 36.  He was, before his arrest, a driver by occupation.  He has been doing this job for the last 13 years. He had an income of about HK$10,000 per month, I was told. He was the eldest and also the only son in the family with two younger sisters.  His parents got divorced when he was young, and being the eldest son in the family, he ceased education in Form 2 and started working in order to assist the family.  He got married himself in 2000 and the couple had a daughter who is now aged about 10. The couple however divorced last year and, unfortunately for the defendant, his father also suffered a stroke in the same year so he moved back to reside with the father in order to take care of the old man.

10.  According to his criminal record, he has a total of 6 pervious criminal records, out of which 3 are records of possession of dangerous drugs.  However, in the past he was only given a fine or probation and he has never received any custodial sentence.  His last conviction was in 2006.

11.  In mitigation, the solicitor for the defendant had emphasised to the court the defendant’s frank admission, his plea of guilty and his full cooperation with the police.  She submitted to me for consideration letters of mitigation written by the defendant himself, the defendant’s younger sister, and also the defendant’s old-aged father.  Needless to say, the father and the sister urge the court to be lenient when passing the sentence and the defendant himself has expressed his regret and his determination to turn over a new leaf.

12.  According to his solicitor, it was exactly because of the financial pressure which was borne on him after his father had suffered a stroke and had to receive expensive private treatment that the defendant finally resorted to committing the offence of trafficking in dangerous drugs.

13.  While I have some sympathy for the position of the defendant, he being the eldest son and the only son of the family, the Court of Appeal has said in so many occasions in the past that family circumstances virtually play no part in the consideration of sentence in serious offence such as trafficking in dangerous drugs. The court can never accept economic reasons for committing offences.

14.  Thus, the only effective mitigation in this case is the defendant’s plea of guilty which entitles him to a full one-third discount from his normal sentence.

15.  The following is the sentence on each separate charge.

Charge 1

16.  Of all the three charges, Charge 1 is the most serious charge. This charge involved as it were, a total of four different types of dangerous drugs and among the four, I would reckon that cocaine and ketamine are far more serious than the rest of the two other minor dangerous drugs.  As the additional amount of these two other drugs, I judge, would not materially alter the sentence that I impose for the first two drugs, namely the ketamine and cocaine, I therefore conclude that no further term in relation to the other two minor drugs shall have to be imposed insofar as this trafficking charge is concerned. 

17.  In relation in the ketamine, according to the tariff guideline of the Court of Appeal in the case of Hii Siew-cheng (CACC 7/2006), for the quantity between 50 and 300 grammes of ketamine, the range of sentence should be 6 to 9 years.  Here we are talking about a quantity of about 125 grammes of ketamine.  I therefore adopt a starting point of 6 years and 9 months.  

18.  In the case of Yip Wai Yin and Anor [2004] 3 HKC 367, it was held that when faced with a person trafficking in a different quantity of drugs which attracted different tariffs, a judge has to approach the matter fairly, realistically and also in a common sense manner.  The solicitor for the defendant reminded me of this authority.

19.  While I do not overlook the fact that in the first charge, the amount of the cocaine involved is relatively small, only 0.44 grammes of cocaine, I do not however think that it is appropriate to ignore the trafficking of the cocaine altogether.

20.  Therefore, I would use the combined approach as urged by the solicitor for the defendant when I come to impose the sentence of this charge. In the end, I only add an extra 3 months to the starting point, making the total starting point to become 7 years.

21.  After the one-third discount, the defendant will receive a sentence of 56 months’ imprisonment in Charge 1.

Charge 2

22.  Charge 2 is a mere possession charge. The drugs in question is “Ice” which is a separate and distinct kind of drug but also a very serious kind of drugs apart from those dangerous drugs as named in Charge 1.  At one point the solicitor for the defendant had urged me during mitigation to pass a concurrent sentence in light of again the relatively small quantity of the “Ice” involved, I disagree.

23.  If the drug in question in Charge 2 is also one of ketamine or cocaine, as in Charge 1, the quantity of this possession charge would have made no difference in terms of the trafficking charge.  However, this is an altogether different category of drugs which have a separate tariff as laid down by the Court of Appeal.  (See: Mok Cho Tik [2001] 1 HKC 261.) For even a small quantity of “Ice”, in terms of possession, the appropriate starting point will still be in the range between 12 to 18 months.  I therefore cannot ignore the presence of the “Ice” altogether when I come to assess the overall sentence.

24.  However, I would not overlook the small or relatively small quantity of “Ice” in this charge and I would use the lower starting point, namely 12 months and I would further add 3 months only to take into account the latent risk factor in this case.  The overall starting point for this charge before any discount is 15 months, and after the discount of one-third, the resulting sentence for this charge will be 10 months’ imprisonment.

Charge 3

25.  For the last offence, the possession of the apparatus, I will simply use 6 months as a starting point and after giving one-third discount, the sentence in relation in this charge is one of 4 months’ imprisonment.

Total sentence

26.  Finally, the question of totality of sentence.  Because of totality, I will have to further adjust the sentences by ordering that the sentences on both Charge 2 and Charge 3 to run wholly concurrent and out of which, only 4 months would have to

run consecutively to Charge 1, therefore making a total of 60 months’ imprisonment hence 5 years for all the three charges.