HKSAR v. NG KA PO

DCCC 581/2021

[2022] HKDC 546

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 581 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before me to a charge of trafficking in dangerous drugs. The charge alleged that the defendant on the 3^rd day of March 2021 unlawfully trafficked in dangerous drugs, namely 6.79 grammes of a solid containing 6.02 grammes of cocaine and 2.39 grammes of a solid containing 2.02 grammes of ketamine.

The Facts

2.  The facts admitted by the defendant can be summarised as follows.  At about 11.35 pm on 3 March 2021, patrolling police officers observed that a taxi, the vehicle, was moving along Lung Kong Road towards Carpenter Road.  It stopped near the above junction and turned on its emergency lights.  A passenger, the defendant, was seated at the vehicle’s rear seat looking nervous and kept using his phone.  The vehicle then turned into Carpenter Road and parked outside a school.  There, the defendant alighted from the vehicle.  Feeling suspicious, the officers intercepted the defendant.

3.  Upon search of the defendant, 17 small resealable bags containing white solid (E1 to 17) were found in the defendant’s left jacket pocket while 4 small resealable bags containing pink solid (E18 to 21) and 4 small resealable bags containing white solid (E22 to 25) were found in the defendant’s right jacket pocket.  Upon arrest and under caution at the scene, the defendant said that he bought these items for his self-consumption to relieve stress. 

4.  Government chemist subsequently confirmed that:-

(a) E1 to 21 were a total of 6.79 grammes of a solid containing 6.02 grammes of cocaine; and

(b) E22 to 25 were a total of 2.39 grammes of a solid containing 2.02 grammes of ketamine.

5.  The total street value of the drugs was estimated to be about HK$14,000.

6.  The defendant also carried two mobile phones and HK$4,940.1 of cash with him. 

7.  The defendant now admits that at the material time, he was in possession of E1 to 25 for the purpose of unlawful trafficking. 

Antecedent

8.  The defendant is now 27 years of age.  He has six previous criminal records, the last one in December 2015 for a similar offence, ie trafficking in a dangerous drug for which he was sentenced to 6 years’ imprisonment. 

9.  Born in Hong Kong, receiving education up to Form 2, the defendant is single.  I am told that he had worked as a casual hawker earning about $15,000 a month until February 2021.

Mitigation

10.  Mr Woon, counsel for the defendant tells the court that the defendant since his discharge from prison in January 2020 had been a kitchen worker and casual hawker.  Due to the ongoing pandemic, his income dropped and was insufficient to cover his living expenses.  To alleviate his dire financial issue, he agreed to act as a courier to carry the drugs in this case for an acquaintance known as Ah Heng.  The exact reward was not yet discussed prior to his arrest. 

11.  It is submitted that the defendant was a pawn at the lowest level of a drug trafficking scheme.  He committed the present offence out of financial necessity and was only expecting to receive a small financial reward.  He pleaded guilty at the earliest opportunity and hence should be given the usual one-third discount.

12.  A letter written by the defendant was produced to court in which he set out his circumstances leading to the offence, expressing his remorse.  I am grateful to Mr Woon for his full written mitigation submission, which also provides the calculation results applying the cross-check tests, ie the absurdity test, the conversion test and ratio test as explained in HKSAR v Chan Yuk Leong, CACC 318/2013.  Counsel for the prosecution has no dispute of the calculation result.  Hence, I will not repeat the detailed calculations here. 

Consideration

13.  In sentencing the defendant, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, personal background of the defendant and mitigation put forward on his behalf.

14.  I have also had regard to the recent Court of Appeal cases such as HKSAR v Islam S M Majharul, CACC 67/2019, and HKSAR v Herry Jane Yusuph, CACC 93/2019.  Trafficking in dangerous drugs is a very serious offence which normally calls for a deterrent sentence and immediate custodial sentence.  I see no reasons in this case why immediate custodial sentence should not be imposed. 

15.  In the present case, the defendant had trafficked in two types of dangerous drugs, namely cocaine and ketamine.  There were 6.02 grammes of cocaine narcotics and 2.02 grammes of ketamine narcotics.

16.  The Court of Appeal has laid down sentencing guidelines for trafficking in heroin (see R v Lau Tak Ming [1990] 2 HKLR 370).  It also held that these guidelines are applicable to trafficking in cocaine (see AG v Rojas [1994] 2 HKCLR 69).  Now, following these guidelines, for trafficking of up to 10 grammes of cocaine shall receive a sentence of 2 to 5 years’ imprisonment. 

17.  As regards ketamine, the Court of Appeal laid down sentencing guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 for trafficking of ketamine over 1 gramme up to 10 grammes, the sentencing band is 2 to 4 years’ imprisonment. 

18.  I accept that the defendant played a minor role relatively as a courier.  I see no reasons in the present case to depart from the tariffs.  To avoid an overly excessive and unjust sentence, I will adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test.

19.  I note that cocaine is the more serious drug in this case in terms of harm and quantity.  I will therefore use cocaine as the base drug.  According to the sentencing guideline, for 6.02 grammes of cocaine narcotic, the starting point should be about 3 years and 9 months’ imprisonment. 

20.  Having regard to the presence of 2.02 grammes of ketamine, I will increase the starting point by 3 months to 4 years.  I do not think I should enhance it further for the aggravating factor that the trafficking involved two different drugs and that it was his second conviction for drug trafficking.  Ultimately, I will use 4 years as the notional starting point. 

21.  The defendant indicated his guilty plea at the earliest practical time.  He is entitled to the full usual one-third discount. Committing the offence out of financial difficulties is not a valid mitigating factor.  Apart from his guilty plea, I cannot find any other mitigating factor.

22.  Defendant, would you please stand up.  For the above given reasons, you are sentenced to 2 years and 8 months’ imprisonment.