CRIMINAL CASE NO. 66 OF 2011
COURT: This defendant pleaded guilty at committal on 18 February 2011 to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
The drug was 243.87 grammes of a powder containing 179.20 grammes of ketamine.
He confirmed his plea today and confirmed too the facts that were admitted at committal. Those facts show that the defendant was intercepted by police as he returned to a private car, having alighted to urinate. Police had seen him leave the front passenger seat to do so. A man was in the driver’s seat and a woman was in the rear passenger seat.
On the front passenger seat police found a black plastic bag which contained a quantity of powder suspected to be ketamine.
The defendant was arrested and cautioned. He admitted that the “K chai” was for his own consumption and that it had nothing to do with the two people in the car.
In a subsequent interview, he said he had gone to Yuen Long from his home on Lantau to obtain the dangerous drugs. He said he obtained them from a man, “Ah Cheung”, outside a bar there. He was told that a quantity of 250 grammes would cost $9,500, and decided to buy in bulk. He had telephoned the driver of the car to ask him for a lift to the Yuen Long Plaza, from whence he intended to take a bus home.
Subsequent analysis by the Government Chemist confirmed the nature and quantity of the drug as in the particulars of the charge. The total narcotic quantity was 179.2 grammes of ketamine. The estimated street value of the dangerous drug was $29,020.
The defendant admitted that he was in possession of the drugs for the purposes of trafficking.
The defendant has a criminal record. He was convicted of four counts of obtaining services by deception in July 2005. He was fined $200 on each charge, a penalty which indicates the offences were considered minor. He has no other convictions, and there is no indication on his record that he was or is a drug addict.
The defendant is aged 24. He was born in the Philippines but migrated to Hong Kong when he was a baby. He completed Form 4 education in Hong Kong. Before his arrest he was said to be working as a transportation worker, earning $6,500 a month.
His father died in 2009, and his mother was working as a cleaner. The defendant lived with his mother and sister prior to his arrest. Both his mother and sister have put in letters stating that they are supportive of their son and brother, and asking the court for leniency in respect of his sentence.
The sentencing guidelines for ketamine offences are set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. 50 to 300 grammes of narcotic comes within the sentencing range of 6 to 9 years’ imprisonment.
Although the defendant pleaded guilty to this offence and admitted that he was in possession of drugs for the purposes of trafficking, he contends through his counsel that a significant proportion was intended for his own consumption. Where this issue is raised, the sentencing court is required to address the matter. However, as there was a great danger that this mitigation might be abused, it is incumbent on the sentencer to look carefully at the circumstances to decide whether or not to accept this contention.
In HKSAR v Wong Suet Hau & another [2002] 1 HKLRD 69, the Court of Appeal considered the principles of how the sentencing court should deal with this matter if it were raised. Factors to be considered include the quantity and value of the drugs, the general circumstances, including how the drugs were wrapped and the number of packets; where the drugs were discovered - whether it was a residential address or whether it was in a public place; whether paraphernalia associated with drug use was found; whether the defendant was an addict or an habitual user; the explanation given by the defendant on his arrest; and the defendant’s general means and ability to pay for the drugs otherwise than by trafficking in them; and any previous drug offences on the defendant’s criminal record were also relevant.
Where the court accepted that a significant proportion of the drugs was for the defendant’s own consumption, the court shall adjust the sentence to reflect that fact, although it was unnecessary to specify the relevant amounts or proportions. But whilst it was important to note that possession of dangerous drugs in itself was punishable by imprisonment, it was also necessary to enhance the sentence for simple possession, where appropriate, to reflect the latent risk factor.
Those factors as applied could offset the practical value of the mitigation. Further, the gravity of trafficking itself was not mitigated in those cases where the trafficker was trafficking to fund his own drugs.
The court in Wong Suet Hau at paragraph 33 stated:
“The answer to the question which was raised, namely what the sentencer should do when the trafficker says that part of the drugs were for his own consumption, is that where appropriate, this element should be taken into account when sentence is imposed because all sentencing must be based on a version of the facts which properly reflects the justice of the case. That being said, in drug cases where traffickers are renowned for their attempts to circumvent the rigour of the court’s stern approach to drug offences, sentencers will need to examine with particular care any assertion by a proved or self-confessed trafficker that part of his haul was for his own consumption. They will be slow to accept a bare assertion unsupported by confirmatory evidence. They will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities, and they will have to bear in mind that the quantity accepted as having been intended for self‑consumption carries a sentence in any event, and that this might still be aggravated for the latent risk factor, so that in most true mixed cases, the difference in sentence, if any, will be slight.”
In most cases, the sentencing court can consider the factors to be taken into account without having to hold a Newton Inquiry. However, where the mitigation has made such an inquiry necessary, and if, after such a hearing, the mitigation is rejected, the court is entitled to reduce by an amount appropriate to the circumstances the discount normally given following a plea of guilty.
The Court of Appeal also considered the question of non-commercial trafficking, or what has been termed “social trafficking”, and reviewed a number of relevant cases where this matter was discussed in the UK. In Hong Kong, the justification for sentence is based on the fact that the greater the weight of narcotics being trafficked, the higher sentence will generally be.
Consistency of sentence in trafficking cases was directed at the weight of the drugs being trafficked without reference to financial gain. This was an important part of the guidelines for sentence, and saved the court from having to make entirely speculative decisions on the degrees of culpability, for instance, between couriers and storekeepers.
The court in Wong Suet Hau concluded that it was inadvisable to have a blanket policy that in cases where no financial gain was disclosed as the motive for trafficking, a reduction in sentence would always immediately follow. The court took the view that it is the very fact of supply or, in the case of couriers and storekeepers, making possible supply to others, which in trafficking, whether for commercial gain or not, needs to be dealt with rigorously.
To distinguish between different forms of trafficking and the motives behind them undermines the core policy of providing consistent levels of sentencing for traffickers based on the weight of the narcotics being trafficked. The evil behind trafficking in drugs which the courts have a duty to deter is the supply of dangerous drugs to the public, whether or not this is done for financial gain, and the major concern of the community in Hong Kong is directed principally at the availability of drugs which traffickers make possible by their activities, rather than the profits which traffickers are able to make from what they have done.
In this case, the defendant was aged 23 at the time of his arrest. He appears at some point to have told the police that he was unemployed, because that is what appeared in his particulars on the first page of the court file. His antecedents statement records that before his arrest, he earned $6,500 a month as a transportation worker.
The drugs seized were packed in a transparent plastic bag and placed inside a black plastic bag. It was on the front passenger seat of the car in which the defendant had been travelling. That car was owned and driven by his friend, Hon.
The defendant claimed to have bought the drug in bulk from “Ah Cheung”, who told him that 250 grammes approximately would cost $9,500. Although a bulk purchase might rate a discount, it is highly improbable that the discount would be as much as $20,000, which, if one notes the estimated retail value given in the Admitted Facts, was what it would be.
When intercepted by the police, the defendant told them that the drug had nothing to do with Hon or the woman who was in the passenger seat. The drug, although in a private car, had been left by the defendant accessible to others certainly at the time he left the car, without apparently any attempt at concealment of the drug or attempt to prevent other people from having access to it.
He admitted being in possession of the drug for the purposes of unlawful trafficking. He claimed it was at least in part for his own use.
I accept that the defendant might well have been tempted to take some of the drug himself. It is possible that he would share some with his friends. I do not accept that he was in a financial position to buy such a large and expensive quantity of drugs for his own use. Further, the latent risk factor was significant in the circumstances such as he described, and if his own partaking of the drug warranted a slightly lesser sentence, any reduction was counterbalanced by the latent risk factor as well as the fact that even for simple possession, the sentence would be, in all likelihood, a custodial one.
The defendant claimed that he was a drug addict and he had started taking ketamine at the age of 19. He claimed through his counsel that he took 3 grammes a day, although that was later changed to 1 to 3 grammes a day. His salary was said to be $6,500 a month. If he was paying $300 a day, as I was advised, that salary would be inadequate to sustain his habit and he would be in heavy debt. Certainly he would be unable to find $4,500 to contribute to the purchase as he claimed. On the minimum costing, he would need to find at least $9,000 a month to satisfy his drug requirement. There was no satisfactory explanation as to why he was able to buy a quantity of dangerous drugs worth $29,000 for $9,500, even allowing for the discount being offered.
In the circumstances, I do not consider that any significant reduction should be given for the alleged self‑consumption factor in this case.
I take a starting point of 7 years’ imprisonment. I give the defendant his one-third discount, and he is sentenced to 4 years and 8 months’ imprisonment.