HKSAR v. NGAI TSZ WAI

DCCC 360/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 360 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; and one count of possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134. The defendant pleaded guilty and admitted the facts, he was convicted accordingly.

Facts

2.  On 13 February 2017 at around 2:30 pm, a team of police officers ambushed outside the defendant’s residence at Room 1611.  The officers were let inside the premises by the mother.  The defendant was found sitting on his bed therein.

3.  Upon search the following items were found inside a cabinet of the defendant’s bedroom:-

(a) 3 bags of “Ice” contained a total of 3.89 grammes of a solid containing 3.8 grammes of ice;

(b) 7 bags of ketamine contained a total 13.98 grammes of a solid containing 9.81 grammes of ketamine;

(c) one bag and one box of cocaine contained 7.43 grammes of a solid, containing 6.83 grammes of cocaine;

(d) an electric scale;

(e) a bundle of 21 resealable plastic bags; and

(f) cash of $13,500.

4.  Further, an ice pot fit and intended for the inhalation of a dangerous drug containing traces of methamphetamine was also found under the bed of the defendant.  The street value of the drugs is estimated at $10,342. 

5.  The general circumstances of the scene referred to the photo album submitted by the prosecution.

Mitigation

6.  The defendant aged 34, single, living with his family.  He was a part-time driver for a transportation company before his arrest, working 3 to 4 days a week for $800 to $1,000 a day.  The parents and the elder brother were in court to show their support to the defendant.

7.  The defendant had 9 previous convictions with 5 related to possession of dangerous drug, he was addicted to ketamine and “Ice” since 2010 and had been sentenced to DATC for 4 times between 2010 and 2013.  He was last discharged from DATC on 3 June 2015.

8.  Mr Yu represented the defendant acknowledged that trafficking of mixed drug was an aggravating factor as this indicating a potentiality to cater for a wider market, but submitted that some of the “Ice” and ketamine was for the defendant’s own consumption while he intended to sell the drugs to sustained his needs.  Instead of selling the drugs to public, he would only sell the drugs to friends upon request.

9.  The defendant pleaded guilty, showed his remorse and submitted his mitigation letter.  The defendant indicated in his letter that he was sorry to let his family down for these years and he wished to take this chance to start afresh.  The defendant’s ex-employer also wrote a mitigation letter for him to confirm his employment and satisfactory performance.  The defence urged for leniency.

Sentence

10.  Cocaine is a hard drug; I refer to the tariff in the case Lau Tak Ming [1990] 2 HKLR 370.  The guideline for trafficking cocaine up to 10 grammes is 2-5 years; trafficking between 10 and 50 grammes is 5-8 years.

11.  The Court of Appeal in HKSAR v Tam Yi Chun CACC524/2011 after consideration made no change to the guideline of Lau Tak Ming but recast the sentencing guideline for trafficking in “Ice”.  Trafficking in up to 10 grammes is 3-7 years; trafficking between 10 and 70 grammes is 7-11 years.

12.  The Court of Appeal in Hii Siew Cheng CAAR7/2006 after consideration laid down the guideline for ketamine and ecstasy.  The guideline for trafficking over 1 gramme to 10 gramme is 2 to 4 years.  

13.  Standing on its own by a straight mathematic approach, 3.8grammes of “Ice” warrants a starting point of 4.5 years, 6.8 grammes of cocaine warrants a starting of 4 years and 9.8 grammes of ketamine warrants a starting point of 4 years.  The starting point for all the 3 types of drug in total in my view would not be less than 6.5 years.

14.  The defendant did not attempt to claim that a significant proportion of the drugs was for his own consumption, he only said some was for his own consumption.  I considered and accept the defendant was a drug addict and some of the “Ice” and ketamine was for his own consumption. Yet possession of dangerous drugs itself also carries a term of imprisonment. According to the mitigation, the friends knew the defendant was a drug peddler and would call him for drug.  After considering the general circumstances of this case, I consider the appropriate starting point to be one of 6.5 years’ imprisonment.

15.  The maximum sentence for possession of apparatus is 3 years’ imprisonment provided by section 36(2) of the Ordinance.  The defendant had 5 previous convictions of possession of dangerous drugs, I consider the appropriate starting point for charge 2 to be one of 9 months’ imprisonment.

16.  The defendant indicated his plea of guilty at the earliest opportunity, he is entitled to 1/3 discount.  However, I do not consider there to be any mitigating factor that called for further deduction. Having consider the overall culpability, I order the sentence to run concurrent with each other.

Order

17.  Charge 1 sentenced to 52 months’ imprisonment.

Charge 2 sentenced to 6 months’ imprisonment, concurrent to charge 1.