HKSAR v. NG SZE TSUN

DCCC 715/2020

[2021] HKDC 32

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 715 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to two charges of Trafficking in Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134).

2.  This case involves a total of 38.26 grammes of a solid containing 32.29 grammes of ketamine (ie 0.56 g of ketamine for Charge 1 and 31.73 g of ketamine for Charge 2).

3.  At around 1319 hours on 15 April 2020, PC22452 and a team of police officers spotted the defendant walking out of Room 1214, 12/F, Panda Hotel, 3 Tsuen Wah Street, Tsuen Wan (“the Hotel”).  The defendant was later intercepted and upon search, one transparent resealable bag containing 0.66 grammes of a solid containing 0.56 grammes of ketamine was found on the defendant.

4.  The defendant was arrested for Trafficking in Dangerous Drug (Charge 1).  Under caution, the defendant admitted that he planned to sell drugs to others.

5.  At around 1323 hours, a search warrant was executed to search Room 1214 of the Hotel.  Upon search, the followings were found:-

(a)  15 transparent resealable bags containing 10.2 grammes of a solid containing 8.33 grammes of ketamine;

(b)  2 transparent resealable bags each containing:-

(i)  20 small transparent resealable bags containing 13.7 grammes of a solid containing 11.7 grammes of ketamine;

(ii)  20 small transparent resealable bags containing 13.7 grammes of a solid containing 11.7 grammes of ketamine;

(c)  1 recycle bag containing a white paper bag containing:-

(i)  5 bundles of unused transparent resealable bags;

(ii)  3 electronic scales; and

(iii)  1 silver coloured spoon.

6.  The defendant was therefore arrested for another charge of Trafficking in  Dangerous Drug (Charge 2).  Under caution, the defendant admitted that the drugs in the room were to be sold for monetary reward and he further confirmed the same in the cautioned video recorded interview.  He said, inter alia, that he would collect $550 for each pack of drugs sold and he personally would receive a reward of $50 for each pack while the remaining $500 would be given to a middleman.

7.  The estimated value of the dangerous drugs was HK$19,245.

8.  The defendant admits that at all material times, he possessed all the ketamine in the present case for the purpose of unlawful trafficking.

Mitigation

9.  Counsel for the Defence, Mr Cheung has filed a set of written submissions and I have considered them in full.

10.  The defendant is 19 years old and is now serving a sentence of detention order in the Drug Addiction Treatment Centre (“DATC”) since 13 August 2020 for an offence of Possession of Dangerous Drug he committed in February 2020 (“the previous offence”).

11.  The defendant was educated up to Form 1 level.  At the time of the arrest, the defendant was enrolled as a full-time student with the Vocational Training Council (“VTC”) in a certificate course for hairdressing.  He was also working part-time, earning around $3,000 per month.

Assessment of sentence

12.  Mr Cheung has referred to the sentencing guideline in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1.  The quantity of 10 to 50 grammes of ketamine falls within the range of 4 to 6 years’ imprisonment.  For Charge 1, I am of the view that a 1-year starting point is appropriate for such small quantity of ketamine.  For Charge 2, my calculation gives rise to a starting point of 60-month approximately. 

13.  I note that the defendant is still young but it does not detract from the fact that trafficking in dangerous drugs is one of the most serious offences.  Section 109A of the Criminal Procedure Ordinance, Cap 221 (“CPO”) provides specific considerations for dealing with young offenders.  Nevertheless, drugs trafficking falls within the category of excepted offence under Schedule 3 of the CPO and attention should be given to s 109A(1A).  As a result, I do not consider that any form of sentence other than imprisonment is appropriate with regard to such a serious offence.  I also do not consider necessary to call for any report before passing the sentence. 

14.  In relation to the aggravating factor, it is noted that the defendant has a criminal record of Possession of Dangerous Drug.  He will not be punished again for that offence.  Nevertheless, it shows clearly that the defendant had committed the present case whilst on bail.

15.  Committing an offence whilst on bail is an aggravating factor. In the case of HKSAR v Wong Yun Fat [2017] 4 HKLRD 59, which concerns the sentencing of an offence of trafficking in dangerous drug committed whilst on bail for an offence of possession of dangerous drug, the Court of Appeal held that a 6 months’ imprisonment is an appropriate enhancement of starting point for such an aggravating factor:-

“[48] It is clear from the authorities that even if the bail is only police bail the fact that the bailed person committed an offence whilst on bail is still to be regarded as an aggravating factor. The issue is not whether the sentence should be enhanced but, rather, by how much it should be enhanced. In the present case the applicant later pleaded guilty to the possession offence for which he had been bailed and so he must have been aware of the likelihood of being prosecuted. In those circumstances his conduct in engaging in trafficking in dangerous drugs, in the words of the Court of Appeal in the Leung Ting Fung case, demonstrates “in terms of the offence, … a serious disregard for the law and, in terms of the offender, it evidences a persistence in offending.” We are of the view that in the circumstances of the present case and in respect of this offender a further period of 6 months’ imprisonment is an appropriate enhancement. This results in a final starting point for count 1 of 11 years’ imprisonment.”

16.  I noted that the dangerous drugs involved in that case was ICE and the quantity is much more than the present case.  In the circumstances, I am of the view that an enhancement of starting point for 3 months’ imprisonment should be adopted.

17.  On the other hand, Mr Cheung submits that I should take into account the defendant’s earlier sentence for Possession of Dangerous Drug and regard it had been heard together with the charges in the present proceedings when applying the totality principle.

18.  Section 6A(1) of the Drug Addiction Treatment Centres Ordinance, Cap.244 provides that:-

“(1)  If a person in respect of whom a detention order, a supervision order or a recall order is in force is sentenced to imprisonment—

(a)  ……

(b)  for a term of more than 9 months (or in the case of a detention order, supervision order or recall order made before the commencement# of the Drug Addiction Treatment Centres (Amendment) Ordinance 1986 (24 of 1986), 2 years) or a new detention order is made in respect of him, the first-mentioned detention order, or the supervision order or recall order, as the case may be, shall cease to have effect.”

19.  In light of the above, the DATC Order would cease to have effect on the defendant once I have passed on him a corresponding custodial sentence for Charge 2.  In considering the question of totality, had the present case been dealt with on the same occasion at the time the previous offence was heard, a starting point of 12 months’ imprisonment or lower would be adopted for the previous offence (see HKSAR v Mok Cho Tik [2001] 1 HKC 261 at 267 B-E).

20.  In both the present case and the previous case, the defendant pleaded guilty to the offences he faced.  The defendant would be entitled to a full one-third discount.  Therefore, the sentence of the possession of dangerous drug would be reduced from 12 months to 8 months, had a starting point of 12-month been adopted.  The fact, as it now stands, is that the defendant had already spent approximately 5 months in the DATC.  I hasten to add that it is not necessarily helpful to compare the sentence of the detention order in DATC and a term of imprisonment in the context of this case.  However, for the purpose of sentencing in the present case, I am prepared to take into account the time the defendant had spent on serving the current detention order in the DATC. 

21.  That said, the offence of possession happened on a different occasion.  It is clear that a partly consecutive sentence is appropriate.  In the case of HKSAR v Choi Yiu Cho (unreported, CACC 158/2014, 19 November 2014), the sentencing judge adopted a starting point of 3½ years’ imprisonment for the charge of Trafficking in Dangerous Drug and 18 months’ imprisonment for the charge of Possession of Dangerous Drug.  The Court of Appeal reduced the sentence for the charge of possession from 18 months to 12 months and ordered 3 months’ imprisonment to be served consecutively to the sentence imposed on the charge of trafficking. 

22.  I shall bear these features in mind when I consider the principle of totality.

23.  Having carefully considered all the circumstances, I shall sentence the defendant as follows:-

(a)  Charge 1: 1 year starting point reduced to 8 months for his guilty plea;

(b)  Charge 2: 60 month starting point reduced to 40 months for his guilty plea;

(c)  3 months’ imprisonment should be added to the starting point to reflect the element of committing the offence whilst on bail and this is reduced to 2 months to reflect his guilty plea.

24.  I am of the view that Charge 1 and Charge 2 should be served concurrently.

25.  Taking into account the totality principle and the mitigations, especially his age, in favour of the defendant, a further 6-month reduction is given.  I do not see that any further discount is justified.

26.  This gives a total of 36 months’ imprisonment. In other words, the calculation for Charge 1 becomes 8m + 2m – 6m = 4 months and that for Charge 2 becomes 40m + 2m – 6m = 36 months. 

27.  The defendant is sentenced to a total of 36 months’ imprisonment accordingly.