HKSAR v. NG KA MING

DCCC 914/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 914 OF 2014

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HKSAR
v.
NG KA MING
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Before: HH Judge Douglas T.H. Yau

Date: 8th January 2015 at 10:49 am

Present: Ms. Helen Chan,Solicitor on fiat, for HKSAR
Mr. Bok Tin Yuen, instructed by M/s Liu Chan & Lam, assigned by DLA, for the Defendant

Offence: Trafficking in dangerous drugs (販運危險藥物)

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Reasons for Sentence
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1. The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2. Particulars of the charge are that the defendant on 28th August 2014 at the car park near Chun Sing School in Yuen Long unlawfully trafficking in 22.32 grammes of a powder containing 13.32grammes of ketamine, as well as 4 plastic bags of substance containing 23.60 grammes of cannabis in herbal form.

Summary of facts

3. The defendant was spotted acting furtively after alighting from a private vehicle by 2 plainclothes police officer at around 7:30pmon 28th August at the car park near Chung Sing School at Yuen Long Kau Hui Road.

4. The defendant was stopped and searched and 13 small plastic bags of containing some powder were found inside his left front trouserspocket. The defendant admitted under caution that they were ketamine.

5. 20 small plastic bags containing ketamine and 4 small plastic bags containing herbal cannabis were then found from the car that thedefendant was driving.

6. The defendant was arrested and stated under caution that he bought the seized drugs from one ‘Ah Ming’ whom the defendant wouldcall from time to time. The defendant bought the drugs in question for about $4,000 at around 6pm that same night. The defendantintended to sell them for $8,000.

7. The respective street values of the ketamine and cannabis seized were estimated to be around $3,681 and $5,178.90. The defendanthad cash of $3,191, RMB100 and 3 mobile phones on him at the time of arrest.

Previous convictions

8. The defendant has a total of 11 previous criminal convictions from 5 court appearances. He had however never been convicted of traffickingin dangerous drugs before.

Mitigation

9. The defendant is 41 years old, a decoration worker, as well as from time to time an electrician and a plumber. He was educated upto, but did not complete, secondary 2 level. The defendant was earning around $11,000 per month before his arrest and would contribute$4,000 to his retired parents monthly.

10. Mr. Bok urged the court to take into consideration the defendant’s timely plea, his cooperative attitude towards the Police sincehis arrest and that this is the defendant’s first trafficking in dangerous drugs conviction and be lenient.

11. There is no mention by Mr. Bok in his mitigation that any of the drugs particularized in the charge were meant for the defendant’sown consumption.

Sentencing guidelines

Ketamine

12. The sentencing guidelines for trafficking in ketamine are found in the case of Secretary for Justice v Hii Siew-cheng [2008] 3 HKC 323. For quantity of between 10 to 50 grammes, the guideline sentencing band is 4 to 6 years’ imprisonment.

Herbal Cannabis

13. The sentencing guidelines for trafficking in cannabis in all its forms are first found in Attorney General v Chan Chi-man [1987] HKLR 221.

14. In the later case of AG v Tuen Shui-ming and Another [1995] 2 HKCLR 129, as a result of subsequent scientific evidence showing that the concentration of THC (tetrahydrocannabinol, being the principal psychoactiveconstituent in the cannabis plant) to be found in cannabis resin is about “four times higher” than the average found in herbalcannabis, the THC concentrations referred to in Chan Chi-man were held to no longer be correct.

15. The Court of Appeal in Tuen Shui Ming did not then wholly recast the tariff in Chan Chi-man, but found that bands (a), (b) and (c) should be deleted and replaced by a single band of “under 2,000 grammes”, with imprisonmentof up to 16 months.

16. According to Chan Chi-man, sentence is at the discretion of the court for trafficking in under 500 grammes of cannabis resin. With the recast tariff, for thepurpose of our present case, given that the amount of herbal cannabis trafficked is 23.60 grammes, the range of sentence is up to16 months.

Sentence

17. In relation to the 23.6g of herbal cannabis, it must first of all be noted that, even for the same quantity of cannabis resin, thecourt would be looking at a sentence of weeks instead of months. Once the lower THC concentration in herbal cannabis is taken intoaccount, this sentence would have to be lowered by a factor of 4 so as to reflect the less damaging effect of herbal cannabis. Theresulting sentence would be rendered relatively insignificant when compared to the sentence that the trafficking in ketamine wouldattract. I will therefore adopt a combined approach when sentencing the defendant.

18. For trafficking in 13.32g of ketamine, the starting point should be slightly less than 51 months’ imprisonment. Taking into considerationthe small amount of herbal cannabis being trafficked, I find that a proper overall starting point for the defendant’s traffickingin the 2 drugs is that of 51 months’ imprisonment.

19. Although the defendant has 11 previous convictions, the latest one was almost 10 years ago. Furthermore, there are no previous similarconvictions for trafficking in dangerous drugs. I find that there are no aggravating features in this case.

20. In relation to mitigating factors, I find that the credit to be given for the fact that the defendant had been cooperative and thathe had indicated his plea of guilty in advance would be sufficiently covered by the usual one-third discount given upon the defendant’sguilty plea. I find that there are no other mitigating factors.

21. The defendant is therefore sentenced to 34 months’ imprisonment.

(Douglas T.H. Yau)
District Judge