HKSAR v. NGAN SHING SAN AND ANOTHER

HCCC337/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 337 OF 2009

-----------------

 -----------------

------------------------------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

------------------------------------------------------

COURT:  The defendants pleaded guilty today to charges of trafficking in a dangerous drug, the drug being cocaine. 

     The 1st accused pleaded guilty to Charge 1 which involved 43.74 grammes of a solid containing 33.86 grammes of cocaine.  The 1st accused pleaded also to the 3rd charge which involved 302.08 grammes of a solid containing 229.91 grammes of cocaine and 287.79 grammes of a solid containing 191.91 grammes of cocaine hydrochloride.

     The charge to which the 2nd defendant pleaded involved 27.40 grammes of a solid containing 18.55 grammes of cocaine hydrochloride. 

     The facts that were admitted by the defendants show that the 1st accused was stopped and searched by police as he left a building in Mongkok carrying a white paper-bag.  Inside the bag were two plastic bags containing 66 packets of suspected dangerous drug.  The 1st accused was arrested and cautioned and said, “Ah Sir, I only received $2,000 from someone to ‘Fa’ the coke and carry it with me to be given to others down there”.

     In a video-recorded interview, the 1st accused stated that the coke was the dangerous drug cocaine and he was asked by a friend called Ah Kit to fix it into bags and take it down for a reward of $2,000. 

     While they were conducting the ambush, the police noted a private car parked nearby outside Fa Yuen Plaza.  The 2nd accused was sitting in the passenger seat with another male in the driver’s seat.  After a time, police approached the car and made inquiries.  The 2nd accused was searched and the drug, the subject of Charge 2, was found in the right pocket of his jacket.

     When arrested for trafficking, the 2nd accused said that he possessed the drug for his own consumption.  He now admits and accepts that he was trafficking in the dangerous drug found on his person.

     Soon after his arrest, the 1st accused was brought to the ground floor of the building where a further search was conducted on his person.  Keys were found to a flat of which he was the tenant.  A search of the flat revealed the quantities of dangerous drugs that are set out in the particulars of the 3rd charge.  A quantity of paraphernalia related to packing was found in the flat. 

     Analysis by the Government Chemist confirmed the quantities of dangerous drug as set out in the charges.

     Under caution, in relation to the drug found in the flat, the 1st accused said that it was he who wrapped the plastic bags and went down with it to be given to others and that he engaged in the trade because he had no money. 

     In a video-recorded interview, he told the police that he rented the flat from 1 December 2008 on the instructions of a friend.  He was given cash to pay for the monthly rental and on the day in question, he had received a call from Ah Kit, telling him to deliver two packs of cocaine downstairs.  It was in the course of doing that that he was arrested.

     The 1st accused has a clear record.  In mitigation, I was told that he was 27.  He is the only child of his parents.  His father died in 2006.  He had been working consistently, mainly as a chef in a Japanese restaurant, but he was concerned about the finances of the family because the family business was in liquidation and his mother was in debt. 

     His mother, who is aged 60, has chronic heart disease and has written a letter to the court, pointing out that her son had acted out of character in committing this offence.  Given his history up to this point, there seems to be some justice in her saying that.

     Counsel who appeared for the 1st defendant says that the 1st defendant realised how serious the offence was, is remorseful, intends to spend his time in prison productively, and that it may be that it was because of his family financial concerns that he entered into this trade.

     The 2nd accused has a minor record, including one for possession of dangerous drugs.  He has the support of his family.  His parents and his uncle are in court.  He is aged 27.  He has been working since he left school and he worked as a chef in a Japanese restaurant, obviously reaching a fairly high rank as a chef. 

     Until about three months before the offence, he was contributing $4,000 to $5,000 a month to his parents for family expenses and, although it is not mitigation, this may explain why he entered into this trade himself.  His uncle, who is in court, says that he will help him with a job as a chef, in China, on his release. 

     In each case, counsel asks for the court to consider the lowest starting point possible for sentence and to give full discount for the plea.  The Lau Tak Ming guideline sentences apply to these offences. 

     In respect of the 1st charge, the narcotic quantity is 33.86 grammes.  I take a starting point of 6 years and I sentence the 1st defendant to 4 years on that charge.

     In fixing the starting point for the 3rd charge to which the 1st defendant has pleaded guilty, I combine the quantities of narcotic for each charge which brings the quantity into the range of 400 to 600 grammes and 15 to 20 years.  I take a starting point on the 3rd charge of 15 years.  With a full one-third discount, I sentence the defendant to 10 years’ imprisonment.

     I order that sentence on the 3rd charge and the sentence on the 1st charge run concurrently.

     In respect of the 2nd charge to which the 2nd defendant pleaded guilty, this comes into the range of 5 to 8 years for a narcotic quantity of 18.55 grammes.  I take a starting point of 6 years, give the full one-third discount and sentence the 2nd defendant to 4 years’ imprisonment.

     I can only urge the defendants to take full advantage of any training opportunities that they have in prison because it is particularly unfortunate that, although they have the support of their families and a good trade, they have managed to get themselves involved in drug trafficking.