HKSAR v. NGAI YIU CHOI

DCCC 686/2017

[2018] HKDC 145

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 686 OF 2017

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to three charges of trafficking in a dangerous drug (charges 1, 3 & 4), contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by the defendant on 2 February 2018.  In summary on three separate occasions in February and March last year the defendant supplied heroin to an undercover police officer outside the Robert Black methadone clinic. 

3.  On 23 February 2017 the undercover police officer was approached by a person asking him if he “wanted something”.  That person then pointed to the defendant.  The defendant offered the undercover police officer a big one for $200 or a small one for $150.  The undercover officer asked for a big one.  The defendant then sold the undercover police officer one packet containing 0.21 gramme of mixture containing 0.16 gramme of heroin for $200 (charge 1). 

4.  Similarly, on 7 March and 16 March 2017 the undercover police officer was approached by a male asking whether he came to “get stuff”.  The male then pointed to the defendant. The defendant again offered the undercover police officer drugs for the same price. 

5.  On 7 March the defendant sold the undercover police officer one packet containing 0.19 gramme of mixture containing 0.16 gramme of heroin for $200 (charge 3) and on 16 March sold the undercover police officer one packet containing 0.19 gramme of mixture containing 0.15 gramme of heroin, also for $200 (charge 4).

6.  The defendant was arrested on 18 May 2017.

Mitigation

7.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Miss Tsang, including that the defendant looks after his mother, who is 82 and his girlfriend who suffers from depression and requires his support.   I have also read the mitigation letter written by the defendant’s girlfriend. 

Starting point

8.  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[2].   The court said the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.  I am satisfied the proper starting point after trial on each charge is 2 years’imprisonment.

Aggravating features

9.  In Lau Tak Ming the Court of Appeal said a sentencing judge may properly take into account previous history of narcotic offences.  The defendant has a long criminal record with seven convictions for possession of drugs but none for trafficking in drugs.  In the circumstances, notwithstanding the offences were committed just over two months after the defendant’s last release from prison, I do not enhance the starting point by reason of the defendant’s previous offending. 

10.  In HKSAR v Ng Kwok Fai the court said that trafficking drugs outside a methadone centre is a very grave aggravation of the offence of trafficking in a dangerous drug[3].  All the offences having been committed outside the Robert Black methadone clinic I enhance the starting point for each offence by 6 months to 2 years and 6 months’ imprisonment. 

11.  Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 1 year and 8 months’ imprisonment. 

Totality

12.  The offences having been committed on three separate days, consecutive sentences are appropriate to reflect the defendant’s overall culpability. 

13.  I am satisfied a total sentence of 2 years and 4 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences, including the total quantity of heroin in the three separate sales[4].  

14.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment;

Charge 3 – 1 year and 8 months’ imprisonment with 4 months consecutive and 16 months concurrent to charge 1; and

Charge 4 – 1 year and 8 months’ imprisonment with 4 months consecutive and 16 months concurrent to charges 1 & 3.

Suspended sentence

15.  On 6 February 2015 the defendant was sentenced in the Kwun Tong Magistracy to 3 months’ imprisonment suspended for 3 years for an offence of possession of drugs[5]. The three offences of trafficking in drugs were committed during the operational period of the suspended sentence. 

16.  After the imposition of the suspended sentence the defendant appeared in the Kwun Tong Magistracy on 20 April 2015 when he was sentenced to 4 months’ imprisonment for an offence of possession of drugs[6]. The offence having been committed on 31 January 2015 prior to the imposition of the suspended sentence the defendant was not in breach of the suspended sentence.  The handwritten reasons for sentence of the magistrate state no action on the suspended sentence which is to stand.

17.  The defendant next appeared in the Kwun Tong Magistracy on 26 July 2016 for an offence of possession of drugs committed on 20 June 2016[7]. The offence was committed during the operational period of the suspended sentence. 

18.  Sentence was adjourned to 5 September 2016 for a DATC report.  On 5 September the defendant was sentenced to 6 months’ imprisonment.  Although the court papers show that on 26 July the magistrate was made aware of the suspended sentence regrettably when sentence was passed the magistrate’s notes show only the sentence of 6 months with no reference to the suspended sentence.

19.  Miss Tsang informed the court the defendant’s recollection was that he was told by the magistrate that the sentence of 6 months included the activation of the suspended sentence.  The criminal record and court papers not showing the activation of the suspended sentence I therefore adjourned sentence to obtain the transcript of the sentence hearing for 5 September 2016.

20.  The transcript is now available and reveals that no mention was made of the suspended sentence[8]. The only conclusion to reach is that the magistrate inadvertently overlooked the breach of the suspended sentence when he imposed the sentence of 6 months’ imprisonment.

21.  The defendant having breached the suspended sentence twice I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence.  Considering totality of sentence, I am satisfied that it would be just to activate 2 months consecutive and 1 month concurrent making a total sentence to be served by the defendant of 2 years and 6 months’ imprisonment.