HKSAR v. NGAI HO TING

DCCC542/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 542 OF 2011

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Reasons for Sentence

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1.  The defendant plead guilty to two charges:

(1) trafficking in dangerous drugs, the quantity involved is 5.09 grammes of “ice”;

(2) possession of the equipment fit and intended for the inhalation of the dangerous drugs, namely three plastic straws containing traces of “ice”.

Facts

2.  The defendant was stopped by Customs officers at Lo Wu border for a body search.  Inside his left inner jacket pocket the Customs officers found:

(1) a cigarette box containing two tissue papers, which contained five plastic bags of the “ice” in question;

(2) three plastic straws containing traces of “ice”. The defendant admitted under caution the “ice” and the three straws belong to him. The “ice” was for his own consumption;

(3) he used a straw for inhaling “ice”;

(4) the “ice” was bought from an unknown male in the mainland for RMB1,500, and he would use them for six months.

Mitigation

3.  In mitigation I am told the defendant is 53, married, with a child who lives in Shanghai.  His wife lives with him in Hong Kong.  His wife suffers from psychotic and effective symptoms due to the collapse of Lehman Brothers incident, as a result of which the family suffers serious financial loss.  The defendant was born in Shanghai and moved to Hong Kong since 1991.  He used to work in his father’s company, which has been closed down in the late 90s.  Between 1997 and 2009 the defendant operated his own business.  In 2009 the defendant was made a director of a financial company.  In July 2010 he started to work in this financial company and earned about $10,000 per month.  His wife does not work.

4.  The mitigation was advanced on the basis that the “ice” was for all his own consumption.  The defendant was diagnosed to suffer from kidney stone problem in January this year.  He felt the pain from time to time.  Just a day before the offence, the defendant returned to China for a business meeting.  An unknown male sold him the drugs for $1,500.  This was the first time he took “ice”. All the “ice” was for his own consumption.     

Sentence

5.  As the mitigation was advanced on the basis of self consumption this court has to determine whether the defendant brought the drugs into Hong Kong for his own use or otherwise. 

6.  Court of Appeal in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 pointed out that a number of factors have to be taken into consideration.  In determining such factors this court is not required to hold a Newton hearing.  Financial circumstances is one of the important factors to be considered:-

(1) the defendant’s monthly earning is $10,000. The entire household depends upon him.

(2) he has to pay $2,000 rent.

(3) $3,000 to his wife for household expenses.

(4) $2,000 to $3,000 for his son who is now studying in Shanghai.

(5) That leaves the defendant a balance of about $2,000.

7.  The defendant left the company in January 2011, and therefore he has no income in February 2011.  Hong Kong is a very expensive place to live; especially the recent inflation is so high.  That makes life very difficult for low incoming people.  The defendant has big expenses from a small income of $10,000.  He himself has only $2,000 to spend, and all of a sudden he spent 75% on a new habit when he knew that he had no income in February 2011.  It was totally impractical, unrealistic and not convincing at all to spent $1500 to buy the ice for his own consumption.

8.  On the other hand, how did the defendant know he would consume “ice” in the coming months and immediately bought 5 grammes from an unknown male?   Five grammes of “ice” was a lot for a beginner. 

9.  Looking at the GCC, the drugs were divided into five packets:

(1) one packet of 2.24 grams of “ice”;

(2) one packet of 0.61 grams of “ice”;

(3) one packet of 0.8 grams of “ice”;

(4) one packet of 0.53 grams of “ice”;

(5) one packet of 0.91 grams of “ice”.

10.  They are all of small size packets and are ready for retail or redistribution.

11.  To this end I refuse to accept the defendant’s assertion that the “ice” was for his own consumption.

12.  However, in passing sentence I do bear in mind that the defendant has pleaded guilty to the charges, and he has a clear record.  Applying the sentencing guideline in Ching Kwok Hung [1991] 2 HKLR at 125, trafficking “ice” of 5.09 grammes of “ice” falls into the sentencing bracket of 3 to 7 years. I adopt a starting point of 5 years and reduce to 3 years and 4 months for the 1st charge.  As to the 2nd charge, I adopt a starting point of 3 months, reduced to 2 months, both sentences to be run concurrently.

13.  The defendant is sentenced to a total period of 3 years and 4 months.