HKSAR v. NGO KIN CHUNG

DCCC 294/2023

[2023] HKDC 1819

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 294 OF 2023

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REASONS FOR SENTENCE

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A. Charge and facts

1.  The defendant (D)  pleaded guilty to three charges:

Charge 1: Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. The particulars are that D, on 19 July 2022, at Room No 706, Flat A7, Welcome Guesthouse, 14^th Floor, Block A, Chungking Mansions, No 40 Nathan Road, Tsim Sha Tsui, Kowloon, unlawfully trafficked in dangerous drugs, namely 10.27 grammes of a solid containing 1.16 grammes of cocaine and 0.09 gramme of a crystalline solid containing methamphetamine hydrochloride.

Charge 2: Possession of an offensive weapon or instrument fit for unlawful purposes, contrary to section 17 of the Summary Offences Ordinance, Cap 228. The particulars are that, on the same day at the same location, D had in his possession an offensive weapon or instrument fit for unlawful purposes, namely one samurai sword, with intent to use the same for any unlawful purpose.

Charge 3: Having custody or control of counterfeit currency notes, contrary to section 100(2)  of the Crimes Ordinance, Cap 200. The particulars are that D, without lawful authority or excuse, had in his custody or under his control, 51 pieces of counterfeit $500 Hong Kong currency notes all bearing the same serial number AX702275, which were, and which he knew or believed to be counterfeit notes.

2.  D admitted the following facts. On the above date, police officers raided the above location (“Room 706”)  with a search warrant.  D being the occupant thereof, his girlfriend and four other persons were found therein.

3.  During a search of Room 706, the following items were found:

Concerning Charge 1, in the middle compartment of a cabinet between two beds:

(a)  1.33 g of a solid containing 1.16 g of cocaine on a piece of playing card (“E1”);

(b)  a silver metal box (“E2”)  containing one transparent resealable plastic bag containing 0.09 g of a crystalline solid containing methamphetamine hydrochloride (a salt of methamphetamine)  (“E3”), and one transparent resealable plastic bag containing 8.94 g of a solid containing traces of cocaine (“E4”);

(c)  one electronic scale and numerous empty resealable plastic bags;

Concerning Charge 2, reclined against a wall:

(d)  a sharpened single-edged samurai sword with a modified grip (the “Samurai Sword”)  stowed inside a canvas container; and

Concerning Charge 3, on one of the beds:

(e)  a black pouch (the “Black Pouch”)  containing 51 Bank of China HK$500 counterfeit banknotes bearing the same serial number (the “Banknotes”).

4.  D was arrested in relation to Charges 1 to 3.  Under caution, he stated, inter alia, that:

(a)  for Charge 1, the ‘“Cokes” were for sale to earn money’; and

(b)  for Charge 2, the Samurai Sword was his; he was indebted and scared of being revenged, so he possessed the Samurai Sword to protect himself.

5.  In a subsequent Video-Recorded Interview (“VRI”)  regarding Charge 1, D said under reminded caution, among other things, that:

(a)  he bought the cocaine from an unknown male in Tsim Sha Tsui for HK$2,000 and intended to sell them;

(b)  he would put 0.2 g of cocaine into each transparent plastic bag for selling purposes;

(c)  the dangerous drug on the play card was the cocaine he had bought from the unknown male; and

(d)  the electronic scale belonged to him and he had used it to weigh drugs, while the numerous empty transparent resealable plastic bags would be used for distributing drugs.

6.  In a subsequent VRI regarding Charge 2, D said under reminded caution, among other things, the followings:

(a)  The Samurai Sword belonged to him. He had bought it at a night market in Sham Shui Po for HK$300.

(b)  He was indebted for around HK$200,000 and worried that he would be revenged. Therefore, he had kept the Samurai Sword for self-defence.

(c)  The Samurai Sword had already been polished when he bought it.

7.  The Government Chemist confirmed the narcotic contents of E1, E3 and E4.  Their total estimated value was around HK$12,747.54.

8.  Banknotes examiner CIP Tang Shun Yan, Brian of the Commercial Crime Bureau examined and found all 51 banknotes to be counterfeit.  They differed from genuine banknotes in that they were printed by inkjet, displaying inferior printing quality.  They were also devoid of security features of genuine banknotes such as windowed metallic threads and watermarks of a bauhinia flower.

9.  According to the DNA testing conducted by the Government Laboratory, D’s DNA was found on E3, the grip of the Samurai Sword, the Black Pouch, as well as five of the Banknotes.

10.  At all material times:

(a)  D possessed the dangerous drugs seized (ie E1, E3 and E4)  for the purpose of unlawful trafficking (Charge 1);

(b)  he possessed an offensive weapon fit for unlawful purposes, namely the Samurai Sword, with intent to use the same for any unlawful purpose (Charge 2); and

(c)  he, without lawful authority or excuse, had in his custody or under his control, the 51 Banknotes which were, and which he knew or believed to be, counterfeit notes (Charge 3).

B. Criminal record

11.  D committed nine cases before in which one involved possession of offensive weapon in a public place, contrary to s 33 of the Public Order Ordinance, for which he was sentenced in 2002 to 5 months’ imprisonment, and another one involved trafficking in dangerous drugs for which he was sentenced in 2016 to 51 months’ imprisonment.

C. Mitigation

12.  The Defence submitted that D is aged 47, divorced with three children, two of which are grown-ups and one is 3 years old.  D was a part-time construction worker earning around HK$20,000 per month.

13.  For Charge 1, the Defence agreed that, according to the sentencing guideline, the starting point for 1.16 g of cocaine in this case is about 28 months’ imprisonment.

14.  The parties agreed that given the insignificant quantity of methamphetamine hydrochloride in this case, the court could ignore it for the purpose of sentencing but enhance the sentence for 2 months because of cocktail drugs.

15.  The Defence argued that the sentence should not be enhanced due to D’s previous single trafficking record which was seven years ago.  The Prosecution disagreed.

16.  For Charges 2 and 3, the Defence invited the court to adopt a starting point of 4.5 months’ and 15 months’ imprisonment respectively.

17.  In terms of totality, the Defence submitted that 1 month of the sentence for Charge 2 and 5 months of that for Charge 3 may run consecutively to that for Charge 1. The Prosecution submitted that a greater part of the sentence for Charge 3 should run consecutively to that for Charge 1.

D. Sentence

18.  For Charge 1, I adopt a starting point of 28 months’ imprisonment which is enhanced by 2 months to 30 months since methamphetamine hydrochloride was also involved in this case.

19.  I agree with the Defence for the reasons they gave that the sentence should not be enhanced on the basis of D’s criminal record.

20.  The sentence is reduced for D’s guilty plea by 1/3 to 20 months’ imprisonment.

21.  For Charge 2, I adopt a starting point of 4.5 months’ imprisonment which is reduced for D’s guilty plea by 1/3 to 3 months’ imprisonment.

22.  For Charge 3, the Defence referred to HKSAR v Ho Wai Mun DCCC 21 & 497/2023 in which a starting point of 12 months’ imprisonment was adopted where 24 counterfeit HK$500 banknotes of poor quality were involved.

23.  I have also considered HKSAR v Nworie Bright Nnanna DCCC 61/2019 in which a starting point of 21 months’ imprisonment was adopted where 41 counterfeit HK$500 banknotes which ‘could quite easily have been passed off as genuine’ were involved.

24.  This case involves 51 counterfeit HK$500 banknotes of poor quality.  I adopt a starting point of 18 months’ imprisonment which is reduced for D’s guilty plea by 1/3 to 12 months’ imprisonment.

25.  Having considered totality, I am of the view that a global starting point of 42 months’ imprisonment and a global sentence of 28 months’ imprisonment for all charges to be appropriate.

26.  Accordingly, I order that 1 month of the sentence for Charge 2 and 7 months of that for Charge 3 to run consecutively to that for Charge 1.  Hence, D is sentenced to 28 months’ imprisonment for this case.