HKSAR v. NG CHUN YIN, JOHN NICOLE

HCCC 519/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 519 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant, Mr Ng Chun-yin John Nicole, pleaded guilty to one count of trafficking in a dangerous drug, contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 during the committal proceedings.

The particulars of the offence are that the defendant on the 27th day of August 2014 at Lo Wu Border Control Point, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 995 grammes of a powder containing 636 grammes of ketamine.

He is committed to this court for sentencing.

Facts admitted

On 27 August 2014 at about 6.25 pm, the defendant was intercepted and searched by Customs and Excise officers at Lo Wu Control Point when he retuned to Hong Kong from China. A plastic bag containing 995 grammes of a powder containing 636 grammes of ketamine was found stuck on the lower back of the defendant by adhesive tape. When arrested and cautioned, the defendant admitted, inter alia, that he took the dangerous drugs across the border for a reward of $2,000.

In a subsequent interview under caution, the defendant said that in mid-July 2014 through the introduction of an old school mate he agreed to bring dangerous drugs from China to Hong Kong for a reward of $2,000 for somebody.

On the day of his arrest he received a telephone call telling him to go to a hotel in Shenzhen. He went there and two men stuck the bag of dangerous drug at his lower back with adhesive tape and told him to return to Hong Kong to await further instructions. He was arrested when crossing the border.

The estimated value of the ketamine seized was $118,405.

Criminal Record

The defendant has a clear criminal record.

Mitigation

Counsel for the defendant has made a detailed and powerful mitigation on behalf of the defendant.

The defendant is aged 17 years and received education up to Form 5 level. At the time of the offence he was aged 17 years and 1 month. Before the offence, he lived with his parents and a younger brother. His father is aged 56 and is a senior foreman with the Food and Environmental Hygiene Department. He was on nightshift performing cleansing duties and was not able to take care of the defendant. As the mother of the defendant is a Filipino, the defendant found difficulties to communicate with her about his inner feelings when he was in adolescence. The defendant had no difficulty in communicating with his father.

The whole family shows full support for the defendant and are in court to encourage the defendant.

According to the defence counsel, the defendant is not outstanding in his academic pursuit and his conduct in school is above average, but he excels in sports and extracurricular activity, particularly taekwondo, a sport which he had engaged in since Primary 1.

The defence counsel submits certificates and awards to the court in support of her submission. She also tenders to the court the academic performance reports of the defendant.

A number of mitigation letters are also submitted to the court by defence counsel. They include the letters of the defendant himself, his father, the Vice-Principal and two teachers of his school, and a friend of his family.

The defendant expresses remorsefulness and determination to mend himself in the letter.

Authors of the other letters all express good opinion of the defendant and sadness in seeing him fall from grace. One of the teachers is also in court to show support for the defendant.

The defendant and all the authors ask for leniency of the court.

The defence counsel tells the court the reasons of the defendant committing the present offence, which are similar to those disclosed by the defendant in his interview with the Customs and Excise officers.

The defence counsel stresses that the defendant is extremely remorseful, thus pleading guilty in the court. The defendant has also made full confession to the smallest details to the Customs and Excise officers, and the Customs and Excise officers may be looking into such details.

The defendant has a plan for rehabilitation and reform. He will continue his studies in prison aiming to obtain an academic degree.

The defence counsel says that in view of the defendant’s young age, his positive character and the offence being an isolated incident out of the character of the defendant, coupled with the strong family support, this case is one which the court should consider giving discount to the defendant in sentencing.

The defence counsel cites Secretary for Justice v Hii Siew Cheng CAAR 7/2006 and CACC 126/2007; and extracts from sentencing in Hong Kong for the reference of the court, and asks the court to be lenient to the defendant.

Sentence

As rightly pointed out by the defence counsel, the Court of Appeal laid down sentencing guidelines for trafficking in ketamine in the case Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.

For a quantity of 600 to 1,000 grammes of ketamine, the starting point is 12 to 14 years’ imprisonment. The amount of ketamine in the present case is 636 grammes and the starting point is therefore about 12 years 2 months’ imprisonment.

The defendant committed the offence for economic reason. This, of course, cannot constitute a valid ground for mitigation.

As pointed out by defence counsel, the defendant was aged 17 years and 1 month when he committed the present offence. No doubt he was very young at that time, but he was not of the category of extreme youth that requires special consideration by the court in sentencing.

As can be seen in the academic performance report of the defendant, his academic performance is rather poor and his conduct in school is also unsatisfactory, obtaining an overall grade of C when he was in Form 5.

The court nevertheless accepts that because of his young age he was vulnerable to be exploited by drug traffickers, and that he has the full support of his family, which is most beneficial to his rehabilitation.

Rehabilitation is, of course, an important factor which the court has to consider in sentencing a young man like the defendant here. The court is therefore prepared to give the defendant some discount in sentence. But the court must avoid giving a wrong message to drug traffickers that the court will treat youngsters engaged in drug trafficking activities leniently.

Having considered the whole circumstances, including the young age of the defendant and all the mitigating factors, the court adopts a basic starting point of 11 years’ imprisonment.

There is, however, an aggravating factor in the present case in that the defendant committed the offence across the Hong Kong and China border which necessitates the court to have the starting point enhanced.

Having considered authorities such as HKSAR v Chung Ping Kun CACC 85/2014, the court considers that an enhancement of 1 year’s imprisonment is appropriate. The court, therefore, adopts a starting point of 12 years’ imprisonment.

Giving credit to the defendant for his plea of guilty, the court sentences him to 8 years’ imprisonment.