HKSAR v. NG HAU YIN

HCCC 147/2023

[2024] HKCFI 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 147 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty in the Eastern Magistrate’s Court on 5 June 2023 to two charges of trafficking in a dangerous drug (Charge 1 & 2), and he was committed for sentence to the Court of First Instance.

2.  The 1^st charge alleges that on 17 September 2020, at 2^nd Floor, Hoi Kin House, Hoi Lai Estate, No. 100 Sham Mong Road, Cheung Sha Wan, Kowloon, in Hong Kong, the defendant unlawfully trafficked in 3.66 grammes of a powder containing 3.14 grammes of ketamine.

3.  The 2^nd charge alleges that on or about 17 September 2020, at Flat 210, 2^nd Floor, Hoi Kin House, Hoi Lai Estate, No.100 Sham Mong Road, Cheung Sha Wan, Kowloon, in Hong Kong, the defendant unlawfully trafficked in 4,291 grammes of a powder containing 2,695 grammes of ketamine.

4.  He comes before me today for sentence, having confirmed his plea and his admission of the Summary of Facts in support.

The Facts

5.  The Summary of Facts reveals that at around 2336 hours on 17 September 2020, the defendant was intercepted by police officers conducting an anti-narcotic operation in the lift lobby on 2/F of Hoi Kin House, Hoi Lai Estate, Cheung Sha Wan, Kowloon. Upon search of the defendant, one transparent resealable plastic bag containing 5 transparent resealable plastic bags containing ketamine, the subject-matter of Charge 1, was found in the right front pocket of D’s pants.

6.  D also had two keys, a mobile phone and cash of $2,950 with him at that time.

7.  Under caution at the scene, the defendant claimed that the ketamine was for his consumption.

8.  Enquiry revealed that the defendant resided at Flat 210 in the building.  The police used the keys seized from defendant and gained entry to the flat together with the defendant.  Upon search with search warrant and in the defendant’s presence, the police found under the computer desk in the defendant’s bedroom another four transparent resealable plastic bags containing ketamine, the subject-matter of Charge 2. Some packing paraphernalia, including numerous transparent resealable plastic bags and an electronic scale, were also seized on the computer desk.

9.  Under further caution, defendant said that as he had no job due to the epidemic, he took the ketamine for sale to earn money.

10.  The government chemist examined and certified that the suspected dangerous drug found in the 9 plastic bags in the operation were ketamine and the quantity was exactly as now particularized in the two charges. 

11.  The total estimated street value of ketamine seized was around $2,108,678.06.

Mitigation

12.  The defendant is 23 years of age.  He was born and raised in Hong Kong. He was unemployed before the arrest, and was educated up to Form 4 level. He had 3 criminal records of Assault occasioning actual bodily harm and one record of Wounding for which he was sentenced to the Detention Centre.

13.  In mitigation, Mr Hui, counsel for the defendant, informs the court the defendant was just 19 years old and was of of clear record at the time of the offence. He was a kitchen apprentice earning about $16,000 per month. Defendant’s parents separated when he was just two years old. He was brought up in a single parent family. Before arrest, he was living with his father in Hoi Lai Estate. The defendant’s father is aged 68 years old and retired. He suffered from heart disease, hypertension and diabetes. He wrote a mitigation letter for the defendant.

14.  Mr Hui explained that the defendant committed the offence for earning quick money during the Covid period. He lost his job and his income dropped in June 2020.  As the sole breadwinner of the family, the defendant foolishly chose a wrong way to make money. This is the first time he lost his liberty and he reflected himself whilst he was remanded in custody and he also wrote a mitigation letter.

15.  In the letter, the defendant described how he regretted of committing the present offences due to his own immaturity and stupidity.  He writes that he recognizes the mistakes he has made and now realizes the seriousness of his conduct to which he has pleaded guilty. He expresses deep remorse and he is keen to reform and turn a new leaf and he wants to support his family and reduce their financial burden when he is discharged from the prison.

16.  The other letter is from the defendant’s father who describes the defendant as a young man who was kind-hearted and was a voluntary worker but he was just associated with the dubious peers and was manipulated by the others. He asks the court to pass a lenient sentence.

Sentencing Principles and Tariffs

17.  In this case, the defendant pleaded guilty and was convicted on two trafficking charges. He was first arrested in the lift lobby outside his flat where 5 plastic bags of ketamine were found on his person, and he was later brought back to his flat by the police where 4 plastic bags of much larger quantity of ketamine were also found under the computer desk in his bedroom. In such circumstance, a concurrent sentence for the two charges is appropriate.

18.  In HKSAR v CHONG cho-kit CACC 363/2005 (Unrep, 12 July 2006), the Court of Appeal said (in paragraph 14)  :-

“ It is only in respect of trafficking offences that arose from the same incident that the aggregated total amount of drugs would be taken for fixing the starting point…The rationale is obvious because it would be unfair, for example , to treat two lots of drugs, one lot found on the accused when he was stopped when coming out of his home and the other lot found in his home when he was brought back to his home for a search immediately thereafter, as separate and distinct lots when considering sentence…”

19.  It is clear that the 5 plastic bags of smaller quantity of ketamine was originated from the flat. Therefore, it is only fair that the 9 plastic bags of ketamine should therefore be added together for fixing a global starting point for both charges.

20.  Based on the facts of this case, I am satisfied that both Charge 1 and Charge 2 arose from the same course of criminal conduct and hence I would agree with the submission by Mr Hui and impose a concurrent sentence.

21.  It is well-established that trafficking in a dangerous drug is a very serious offence. In the Court of Appeal case of Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstance were of far less importance than the sentencing principles of denunciation, deterrence and punishment.

22.  The total narcotic contents of ketamine involved in this case is 2,698.14 grammes (3.14g+2,695g).

23.  In sentencing, I shall follow the six-step approach as mentioned in the case of Herry Jane Yusuph.

24.  The first step is to assess the gravity of the offence.

25.  In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal stated the trafficking in 2,000 - 3,000 grammes of ketamine would attract a starting point of 18-20 years’ imprisonment. For 2,698.14 grammes, the starting point is 19.4 years or 19 years and 5 months.

26.  The second step is to assess the defendant’s role and culpability based upon the evidence.

27.  As was held in Herry Jane Yusuph, at paragraph 59:

“ The guideline for trafficking in dangerous drugs are based upon the courier or storekeeper; that is, the person who is delivering, distributing, or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

28.  Consequently, it would not be possible to properly apply the guidelines until the court takes a view of the role and culpability of the defendant.

29.  The assessment made in the second step is relevant in determining where within the band or outside the band the defendant comes.  The Court of Appeal reaffirmed that the bands were for least culpable of drug traffickers, namely, the courier or the storekeeper.

30.  The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside that band whether above or below given the circumstances of the offence and the role of the defendant.

31.  In my judgment, the defendant’s role and culpability in this case is more than merely a courier or storekeeper. By his own admission to the police, the defendant admitted that he took the ketamine inside his flat for sale to earn money. The claim was also supported by the presence of packing paraphernalia found in his flat which goes to show that he was actually dealing in the drugs. This heightened his culpability, and in my view, an upward increase of 7 months’ sentence is warranted. 

32.  In determining the appropriate overall starting point, I take into account the role and culpability and consider it necessary to make an upward adjustment of 7 months’ imprisonment, resulting in an overall starting point of 20 years imprisonment.

33.  The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point.  In my judgment, there is no other aggravating factor.

34.  Fifthly, I am required to have regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in a dangerous drug, personal circumstances will count for little unless they are exceptional. Apart from the defendant’s timely and early plea of guilty at the committal stage, there is no other mitigating factor. The defendant is entitled to the usual one third reduction of the sentence on account of his plea.  The overall sentence on both charges is reduced from 20 years to 13 years 4 months.

35.  The sixth and final step is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. 13 years and 4 months is of course a harsh sentence but a harsh sentence is certainly called for in light of the facts of the case and there is no reason why it should not be imposed.  Mr Hui however still urged me to consider the relatively young age of the defendant and the fact that he had a clear record at the time of the offence.  In the end, I exercise my discretion to reduce 4 months form the overall sentence.

36.  For Charge 1, I impose a sentence of 13 years; For Charge 2, I impose a sentence of 13 years; and I order the sentence on both charges to run concurrently.