HKSAR v. NG KA KIN

DCCC 569/2023

[2024] HKDC 347

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 569 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Ng pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 16 February 2023, near Shek Pik Resettlers’ Playground, Ham Tin Street, Tsuen Wan, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 1.67 grammes of a crystalline solid containing 1.66 grammes of methamphetamine hydrochloride and 25.30 grammes of a solid containing 20.92 grammes of ketamine.

Facts admitted by Mr Ng

2.  On 16 February 2023, at 4:56 pm, next to the basketball court of Shek Pik Resettlers’ Playground, Tsuen Wan, Mr Ng was looking around evasively from time to time.

3.  Uniformed police on patrol duty approached Mr Ng.  He looked nervous and tried to leave.  A constable attempted to block Mr Ng’s movement and ordered him to stop.  Mr Ng persisted.  A second attempt was made to stop Mr Ng.  Mr Ng finally stopped.

4.  Upon search of Mr Ng’s left inner jacket pocket, the following items were found:-

(a)  A black fabric bag containing a large resealable plastic bag containing a small resealable plastic bag containing 1.67 grammes of a crystalline solid containing 1.66 grammes of ICE;

(b)  A small resealable bag with the handwriting “8” on it, containing 2.87 grammes of a solid containing 2.26 grammes of ketamine;

(c)  A resealable plastic bag with the handwriting of “20”, “small” (in Chinese), and “perfume stone” (in Chinese)  on it, containing 9 small resealable plastic bags containing 13.9 grammes of a solid containing 11.5 grammes of ketamine (these small plastic bags had the handwriting of either “11” or “8” on them); and

(d)  A resealable plastic bag containing 13 small resealable plastic bags containing 8.53 grammes of a solid containing 7.16 grammes of ketamine (these small bags had the handwriting of either “11”, “8”, “2” or “9” on them.

5.  Cash of $700 was found in Mr Ng’s right rear trouser pocket and cash of $3,241 was found in Mr Ng’s wallet.  Mr Ng was also carrying an iPhone.

6.  Mr Ng was arrested.  Under caution, he said that the “K Jai” was for his self-consumption.

7.  In a subsequent cautioned VRI, Mr Ng said that all the drugs should be “K Jai”.

8.  The estimated street value of the ICE crystalline solid found was $1,052.10.

9.  The estimated street value of all the ketamine solids found was $15,002.90.

10.  Mr Ng now admits that he possessed all of the drugs found for the purpose of unlawful trafficking.

Criminal record

11.  Mr Ng has 3 previous convictions all related to dangerous drugs.  The first (recorded in 2011)  and the last (recorded in 2019)  relate to trafficking in dangerous drugs.  Prosecution told me Mr Ng was last released from prison on 23 October 2021.

Antecedents

12.  Mr Ng is aged 27 (26 at the time of the offence), educated to junior secondary level in Hong Kong, unemployed.  He lived with his mother and elder sister in public housing in Kwai Chung.  He is not a drug addict.

Mitigation

13.  Mr Richie Lai of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ng.  The following is a summary of the mitigation submissions.

14.  Mr Ng’s father is retired.  His mother took odd jobs.  His two elder sisters are working each earning about $18,000 to $20,000 a month.

15.  Mr Ng’s family members gave him about $5,000 to $6,000 per month.  He has savings of about $12,000.

16.  Mr Ng is a drug user (cf what he told the police by way of antecedents which was agreed to by Mr Lai on behalf of Mr Ng), and had been admitted to DATC in 2016.

17.  Mr Ng said at the scene that the ketamine found was for his own consumption.  In the subsequent VRI, he referred to all the drugs as ketamine.

18.  On reviewing the photographs taken after arrest, Mr Ng held the view that only the solids mentioned in (b)  and (c)  in the above facts ie the 2.87 grammes of ketamine solid and the 13.9 grammes of ketamine solid were for his own consumption; that they cost him roughly $4,000 to $5,000.

19.  Mr Ng received all of the drugs from the trafficker whom he arranged to meet in the basketball court of Shek Pik Resettlers’ Playground.

20.  Based on the guidelines laid down in HKSAR v Tam Yi Chun (No 2) [2014] 4 HKC 256, 1.66 grammes of ICE would attract a starting point of about 44 months’ imprisonment.

21.  According to the sentencing guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the starting point for trafficking in 20.92 grammes of ketamine would be about 54.5 months.

22.  If an individual approach is adopted for sentencing, by adding the two starting points aforesaid, the overall starting point would be about 98.5 months.

23.  The Court of Appeal revisited the individual approach and the combined approach in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146.  The combined approach involves the calculation of the applicable sentence for the more potent drug, and then adjusting the sentence upwards to take into account significant quantities of other drugs.  Yet, common sense should be adopted because there may be cases where it would be unrealistic to use the more serious drug as the base drug.

24.  Mr Lai then worked out the following results of the 3 cross-checking tests:-

(a)  Absurdity test: 94 months for 22.58 grammes of ICE; 55.5 months for 22.58 grammes of ketamine;

(b)  Conversion test: 62.52 months for 5.525 grammes of ICE; 60 months for 29.408 grammes of ketamine; and

(c)  Ratio test: ICE ratio 1.66/22.58 x 94 + ketamine ratio 20.92/22.58 x 55.5 = 58 months.

25.  Mr Lai then referred to the six-step approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

26.  Mr Lai submitted that there is no evidence Mr Ng ranked high in the drug trafficking hierarchy.

27.  Mr Lai submitted that in the circumstances, it is unnecessary to go outside the relevant band.

28.  Regarding the topic of self-consumption, Mr Lai submitted that in line with Mr Ng’s admission at the crime scene, a significant proportion of the dangerous drugs found in Mr Ng’s possession were for his own consumption.

29.  The court is reminded of Mr Ng’s timely guilty plea.

30.  Mr Lai submits that, taking into account the overall criminality, a global starting point of no more than 60 months may be appropriate.

31.  After an adjournment specifically ordered so that a urine test report on Mr Ng may be obtained, Mr Lai made further mitigation submissions by way of a Supplemental Note dated 26 February 2024, not only on the topic of self-consumption, but also, somewhat upon invitation extended on the last occasion, on the role of Mr Ng in the trafficking activity and on mistaken belief in the nature of some of the drugs found.

32.  First, on self-consumption, Mr Lai referred to the general principle contained in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, 79-80, at para 34.  Then Mr Lai referred to HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, 1126, at para 19, for the proposition that where all or part of the drugs were intended for self-consumption, the ensuing discount would fall between 10% and 25% of the basic starting point, depending on the circumstances.

33.  The threshold test for self-consumption is whether “all or significant proportion of the drugs” was intended by the defendant for his own consumption: HKSAR v Choi Chun Wo [2018] 5 HKLRD 717, 731, at para 37, per Zervos J (as he then was), giving the judgment of the Court of Appeal.

34.  Mr Lai also referred to the Postscripts of HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, 651-652, in which Yeung VP, on the occasion of giving the judgment of the Court, gave guidance on how to approach the issue of self-consumption.

35.  Mr Lai asked the court to consider the following:-

(a)  Mr Ng has a prior history of consuming drugs: in 2016, he was convicted of possession of dangerous drugs and was detained in DATC for 6 months;

(b)  The urine test conducted upon remand, though tested positive for cocaine, was not tested for the presence of ketamine;

(c)  To take ketamine requires no drug-taking paraphernalia;

(d)  Under arrest, Mr Ng admitted the ketamine was for his own consumption; and;

(e)  Mr Ng spent about $4,000 per month on dangerous drugs; such expenditure was covered by the money provided by his family members per month, ie $6,000.

36.  Mr Lai submits that, taking into account all the aforesaid factors, it is plausible that some of the drugs were for self-consumption.  Further or alternatively, Mr Lai asks the court to exercise its discretion to reduce Mr Ng’s sentence on the basis a small part of the dangerous drug was for his own consumption.

37.  Second, on the role of Mr Ng, Mr Lai made some passing reference to para 70 of HKSAR v Lee Ming Ho, CACC 130/2019, which I do not think is pertinent in the present case.

38.  Third, on the topic of mistaken belief in nature of the drug, Mr Lai submits that the court could consider as a factor, to reduce what otherwise would be the right sentence, the fact that the defendant believed the drugs to be of a less potent type than they actually were.

39.  In HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367, 374C-D, Ma CJHC cited R v Edward Bilinski (1988)  86 Cr App R 146, and affirmed the above reasoning which has also been applied in Hong Kong in HKSAR v Li Chi Hung, CACC 18/2002.  The Court of Appeal stressed that a defendant will not be entitled to be sentenced according to the tariff of the less potent drug but may be given a discount on account of his mistaken but genuine belief that the drugs were something less.

40.  In the present case, ketamine was of a less potent type than ICE.  Mr Ng believed all the drugs he possessed were ketamine, which he admitted at the scene and in the subsequent VRI.  It is submitted that the court may take into account his mistaken belief and give a discretionary discount.

41.  Mr Lai however accepted that Mr Ng’s previous conviction may be considered as an aggravating factor.

42.  Today, Mr Lai told the court that on the latest instructions, Mr Ng elected not to give evidence to support his claim of self-consumption. Furthermore, Mr Lai told the court that Mr Ng now retracts the claim that 13.76 grammes ie 66% of the ketamine was for self-consumption but still insists that 2.26 grammes ie 10.8% of the ketamine was for self-consumption.  The reason for the change was, according to Mr Lai, a result of a mix-up by Mr Ng realized only after sight of the urine test result.

Sentence

43.  An adjournment was asked for by the parties so that a urine test result of Mr Ng may be obtained from the Correctional Services Department.  The court has now received from the prosecution such a report.  The report shows that on admission to the Lai Chi Kok Reception Centre, urine specimen was collected from Mr Ng for immunoassay test in respect of a number of different dangerous drugs (but apparently not including ketamine)  and the result shows that Mr Ng was tested positive for cocaine.

44.  Given the equivocal status of the report in relation to ketamine, Mr Lai was invited to indicate if Mr Ng will give evidence in support of his claim that a significant proportion of the ketamine found was for his own consumption.  Upon taking instructions, Mr Lai replied that Mr Ng declined to give evidence in this regard.

45.  I found the sudden change of position of Mr Ng concerning the amount intended for self-consumption troubling.  This did nothing to enhance the credibility of the claim.

46.  In any event, I looked for evidence available to the court to support Mr Ng’s claim.  I did not find sufficient evidence to prove on the balance of probabilities Mr Ng’s claim.  On the contrary, I note that on the occasion when Mr Ng was last sentenced, in September 2019, in a case of trafficking in what substantially was about 64 grammes of ketamine (ie 3 times the amount of ketamine in the present case), he specifically disavowed himself from the mitigation plea of self-consumption (see DCCC 280/2019, at para 6).

47.  Furthermore, in the antecedents statement which Mr Lai agreed on behalf of Mr Ng, the latter told the police that he was not a drug addict.

48.  I therefore totally reject Mr Ng’s claim of self-consumption of even a small part of the ketamine found.

49.  In sentencing Mr Ng, I bear fully in mind what has been held in Islam SM Majharul and Herry Jane Yusuph (both supra).

50.  The calculations of Mr Lai under the 3 cross-checking tests more or less resemble those worked out by myself independently.

51.  I adopt the combined approach of sentencing and adopt the initial starting point of 60 months’ imprisonment.

52.  Based on what Mr Ng told the police under caution, I found that he was an actual or direct trafficker of the drugs found.  This is an aggravation which entitles me to take a higher starting point than if Mr Ng was a mere courier or storekeeper.

53.  For the dual factors that Mr Ng was an actual or direct trafficker and the presence of two serious drugs, I add 4 months to the initial starting point.

54.  Mr Ng started trafficking in dangerous drug when he was 14; then he committed the same type of offence when he was 22.  Now, he is before me convicted of the same type of offence which he committed when he was 26, and only one year and 4 months after he was released for the last trafficking offence.  An extra dose of deterrence must be added to the sentence to be imposed on him.  For that reason, I add another 2 months to the initial starting point, with the principle of totality always at the back of my mind.

55.  Mr Ng pleaded guilty in good time, earning for himself the full one-third discount.  I accept that Mr Ng genuinely but mistakenly believed the ICE found in the case was also ketamine.  For this reason, I will give him a discount of one month after the one-third discount.  There are no other mitigating factors of weight to justify any further reduction in sentence.

56.  An application of the totality principle does not detract me from imposing the resulting sentence on Mr Ng.

(Mr Ng, please stand)

57.  Mr Ng will go to prison for 43 months.