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DCCC 1168/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL ACTION NO 1168 OF 2016
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HKSAR |
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NG SING HUNG (also known as NG CHI KWONG) |
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| Before: |
Deputy District Judge Don So |
| Date: |
31 March 2017 at 10.05 am |
| Present: |
Mr John McNamara, Counsel on fiat, for HKSAR
Mr Lam Yau Yee, of Chung & Kwan, assigned by the Director of Legal Aid, for the defendant
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| Offence: |
[1] Trafficking in dangerous drugs（販運危險藥物）
[2] Possession of apparatuses fit and intended for the inhalation of dangerous drugs（管有適合於及擬用作吸服危險藥物的器具）
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REASONS FOR SENTENCE
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Charge
1. The defendant pleaded guilty to one charge of trafficking in dangerous drugs (Charge 1)[1] and one charge for possession of inhalation apparatus (Charge 2)[2].
Fact
2. The defendant admitted the following fact. The defendant rented the small room to live. On the night in question, the police came and raided his room and in his presence found therein some drugs along with weighing equipment and packaging materials (Charge 1). There were also some inhaling apparatus (Charge 2).
3. The defendant was immediately arrested and upon caution, he said that some of the drugs were for his own use and some were for sale.
4. The drugs were eventually examined and confirmed to be:-
(a) Methamphetamine (Ice) of net weight of 5.08 grammes;
(b) heroin of net weight of 1.61 gramme.
5. Street value of the drugs was some HK$3,000.
Mitigation and criminal record
6. Defendant is 63 years old. He is married. He was unemployed at the time of arrest.
7. He has 32 conviction records, and among them, 13 were possession of dangerous drugs or related apparatus. He is obviously a hardened drug addict. However, he never has any trafficking conviction. This case is his first time.
Self-use portion
8. Defence lawyer submits that 60% of the drugs were intended for defendant’s own use, whereas the rest (40%) was for sale.
9. Inhaling apparatus was found the room, and the prosecution thereby sensibly accepts the defendant self-use proposition. However, it does not accept the apportionment. The prosecution effectively asks the defence to prove the alleged 60%. The defendant still refuses to testify on the issue but he instead asks this court to, in view of the existing facts of the case and in view of his long addiction records, rule in his favour.
10. This court considers the various factors in Wong Suet Hau CACC 366/2003[3]. First of all, even the two drugs combined, they are not substantial in amount. As said, they together weighed 6.69 grammes in purity. The defendant is a hardened drug addict. He has been so addicted for 40 years since 1977. His average daily usage may, this court believes, reach as much as half a gramme. If he was going to consume all the drugs himself, the total quantity would only last for about two weeks. Again, judging from his continuous drug conviction records, this court does not think that he can live without it now. He definitely wants to reserve some of drugs for himself at home which must be good for a few days or even a week.
11. Packaging-wise, the majority of the heroin (again total was just 1.61 gramme) was already sealed in some 10 apparently readily disposable small packets but the Ice (5.08 grammes) was there in one bulk, one bag. How many small packets the defendant was minded to reduce the bulk of ice into remains unknown. Nevertheless, even the presence of many small stuffed packets at home does not necessarily point to his intention to sell. Sometimes it can suggest a structured daily dosage of his own, except of course where he is caught leaving his home with many packets on his body. In that case, the inference of trafficking is strong and imminent. But, it did not happen in this case.
12. As said, the location was his own residence, and apart from some trafficking paraphernalia, inhaling equipment was found. The defendant must be consuming some drugs there.
13. As shown by his appalling records, the defendant is a deep-rooted drug abuser. He already told the police at the first moment upon caution that he had some of the drugs for self-consumption.
14. He was unemployed at the time, and it is inconceivable that he had any legal means to finance his heavy drug addiction. However, it does not necessarily mean that he deals in drugs. He could have engaged in other illegal activities to fuel his habit. As a matter of fact, he had more than 10 convictions of selling obscene articles, which crimes could obviously account for his source of income. After all, despite 40 years of addiction, he never had one trafficking record. His propensity to deal in large or large proportion of drugs is low.
15. All in all, this court accepts his alleged proportion ie 60% of the drugs actually being for his own use. Due sentencing discount will be given to him under this head.
Sentence assessment procedure
16. For Charge 1, as it involves more than one kind of drugs, this court adopts a combined approach to assess the level of sentence. With the benefit of doing the following calculation myself, I would propose a figure of 64 months’ imprisonment as a starting point. This figure will be checked against using the three tests in Chan Yuk Leong CACC 318/2013.
17. The checked or corrected figure is to be discounted by the defendant’s guilty plea, and adjusted to reflect the 60% self-use portion.
Tariff authorities
18. Ching Kwok Hung [1991] 2 HKLR 125 states trafficking in Ice of up to 10 grammes results in 3 to 7 years’ imprisonment. The midweight (5 grammes) thus results in 5 years (60 months) imprisonment. Lau Tak Ming [1990] 2 HKLR 370 states that trafficking in heroin of up to 10 grammes results in 2 to 5 years’ imprisonment. The midweight quantity (5 grammes) thereby results in 3 and a half years (42 months) imprisonment.
19. It is readily discernible from the above tariffs that at this weight band (up to 10 grammes), the conversion rate for Ice to heroin is roughly 3 to 2.
20. Applying the above tariffs, the resulted imprisonment term arising from trafficking in:-
5.08 grammes of “Ice”: 60 months;
6.69 grammes of “Ice” (because 5.08 plus 1.61): 68 months;
1.61 grammes of heroin: 29 months;
6.69 again grammes of heroin: 48 months.
Absurdity test
21. Assuming all the drugs were of the highest potency type ie Ice, trafficking in them of 6.69 grammes would, as said, result in approximately 68 months’ imprisonment.
Conversion test
22. Applying the above conversion rate (3 to 2), the converted total drugs would be and bring about:-
6.15 grammes Ice (5.08 + 1.61 x 2/3): 65 months’ imprisonment;
9.23 grammes Heroin (5.08 x 3/2 + 1.61): 57 months’ imprisonment.
Ratio test
23.
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Type of drugs |
Assuming total quantity (6.69 grammes) of one single drug type |
Ratio |
Approximate imprisonment term |
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Ice |
68 months imprisonment |
5.08/6.09 = 0.76 |
51½ months |
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Heroin |
48 months imprisonment |
1.61/6.69 = 0.24 |
11½ months |
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Total |
63 months |
24. The 64 months’ imprisonment proposed is generally in line with the three test results and is now formally adopted.
Plea discount
25. The defendant has indicated to plead guilty at the earliest opportunity, and therefore a full one-third discount should be afforded to him. The remaining question is the appropriate rate of discount for his self-use of drugs.
Self-use discount
26. 60% is a significant proportion, and according to Chow Chun Sang [2012] 2 HKLRD 112[4], 10% to 25% discount should be considered. Chow intended to use for himself more than half of the 7.22 grammes of the Ice he trafficked. He was afforded only 10% discount by the trial judge under this head. On appeal, the percentage was commented to be conservative but since there was no error of principle, the 10% discount was upheld.
27. All factors considered, primarily because the defendant is 63 years old and because this is his first trafficking offence amidst 40 years of addiction, this court affords the defendant 20% discount under this head. The 64 months’ starting point is therefore reduced by 53% (33% plus 20%). The defendant is sentenced to 30 months imprisonment on Charge 1.
Charge 2: Possession of inhaling apparatus
28. This court adopts 6 months’ imprisonment as starting point for this charge. Being given one-third guilty-plea discount, the defendant is sentenced to 4 months’ imprisonment.
29. This charge arose from the same time, same place and virtually the same facts as Charge 1. This 4 months’ imprisonment is thus ordered to run totally concurrently with the 30 months’ imprisonment on Charge 1.
Conclusion
30. The defendant is sentenced to a total of 30 months’ imprisonment today.
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(Don So)
Deputy District Judge
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[1] Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134 of the Laws of Hong Kong. Particulars of charge are: the defendant on the 22nd day of August, 2016, at Room No 1, 12th Floor, Hoi Yuen Mansion, No 167-169 Shanghai Street, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 5.31 grammes of a crystalline solid containing 5.08 grammes of methamphetamine hydrochloride and 2.27 grammes of a mixture containing 1.61 grammes of heroin hydrochloride.
[2] Contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Chapter 134 of the Laws of Hong Kong. Particulars of charge are: the defendant on the same day at the same place had in his possession apparatus, namely two paper rolls, one pile of aluminium foil sheets and one inhaling device, fit and intended for inhalation of dangerous drugs, namely methamphetamine and heroin.
[3] At paragraph 34:-
(a) the quantity of drugs and, if known, their value;
(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;
(c) where the drugs have been discovered, whether at residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;
(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;
(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;
(f) the explanation given by the defendant following arrest;
(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and
(h) the defendant’s criminal record, if any, in relation to previous drug offences.
[4] At paragraph 19:-
“We are of the view that in trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised or premeditated, and the background and criminal record of the defendant.”
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