CRIMINAL CASE NO. 107 OF 2011
COURT: The defendant has pleaded guilty to trafficking in a dangerous drug, namely 215.19 grammes of a powder containing 180.63 grammes of ketamine.
At around 2.35 pm on 27 October 2010, the defendant was observed by police officers to be acting suspiciously at the junction of Nathan Road and Waterloo Road, Kowloon. When the police officers approached the defendant, he appeared nervous, and in the course of inquiries being made of him, he fled along Waterloo Road towards Mong Kok. He was pursued by the police officers, who subdued him after a brief struggle. The defendant then admitted he had ketamine in his shoulder bag.
On searching this bag, the police found 12 plastic bags of what turned out to be ketamine.
When subsequently interviewed by the police, the defendant said that he had agreed to transport the drugs to the place where he was observed by the police. He was told that once there, he would be contacted by someone who would arrange to collect the drugs from him. In return, the defendant was promised $1,000.
The street value of these drugs is estimated at $25,822.
In different cases the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug trafficking offence. The first is that for sentencing purposes, ketamine is to be treated the same as Ecstasy. Secondly, the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the powder in which it is contained.
Thus the quantity for which this defendant must be sentenced is 180.63 grammes.
Thirdly, the sentencing ranges for trafficking in ketamine are to be taken from the guidelines laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. There, the Court of Appeal said that for amounts of between 50 to 300 grammes, the sentencing range should be 6 to 9 years’ imprisonment.
These sentencing tariffs leave little room for mitigation, but notwithstanding this, the sentencing tariffs play a very important role for two main reasons. Firstly, they lead to consistency in sentencing. As Stuart-Moore, Acting CJHC, said in HKSAR v Manalo [2001] 1 HKLRD 557 at 60G to H:
“The guidelines, whilst of course not straitjackets, are there to provide and maintain consistency of sentence between all offenders who traffic in dangerous drugs. It is important for courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers, because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.”
Secondly, they help to deter those who might otherwise be tempted by what they might perceive as an easy and low‑risk means to substantial profits. As the Court of Appeal said in Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20:
“It is important to follow the guidelines so that people who engage in such evil business can be assured of the length of the inevitable custodial sentence, and hopefully such an approach will be a deterrent.”
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines. In the Chan Ka Wah case, the Court of Appeal concluded, at page 908, paragraph 22, that:
“Whilst a sentencing judge may retain some degree of discretion and other factors may be taken into account to determine an appropriate sentence, the sentence imposed should normally be ‘within the suggested bands’.”
Although it has been clearly stated by the Court of Appeal that a clear record and youth, other than extreme youth, should not have any bearing on sentence, Mr Hagon has urged me to obtain a training centre and detention centre report. This I have done, and it has provided me with some very helpful information on this defendant.
The defendant was born on 28 May 1994 and so is now 17 years and 5 months old. He has only limited education. He has completed his primary schooling and one year of high school. He has been in trouble with the law since 28 November 2006, when he would have only been 12 years of age. That offence was theft, for which he was placed on probation for 12 months. In this period of his life he had no interest in his schoolwork, and outside of school associated with like‑minded individuals, some of whom had triad affiliations.
Whilst on probation, he behaved himself and appeared to respond well to the supervision to which he was subjected. However, once that supervision was no longer present in his life, he reverted to his previous undisciplined lifestyle and reassociated with his triad acquaintances. It was at this time in early 2008 that he started taking “Ice” and cocaine.
This appears to have marked a descent into more serious crime. In May 2008, just before his 14th birthday, he was arrested for trafficking in cocaine, and whilst on bail for this offence, committed a further offence of common assault. At this time he made an effort at further study, and completed Form 1.
For the drug and assault offences he was sentenced to a rehabilitation centre, where he remained until 24 July 2009. After discharge from the rehabilitation centre he remained subject to supervision.
In September 2009 he was enrolled in Form 2, but in May 2010 he was expelled from school without completing his Form 2. That was the end of his education. By then he was 15 years of age and was unqualified for any form of employment other than the most menial kind.
His supervision order expired on 23 July 2010, and again the defendant relapsed. He ceased his part-time food delivery job and started reassociating with those who previously had been such a bad influence on him. He started using drugs again and rebuffed suggestions by his family that he return to further study.
Then in October 2010, when only 16 years and 5 months old, he committed the offence for which I must now sentence him. Whilst on remand for this offence, he breached prison rules by fighting with another inmate, for which he was awarded 7 days’ forfeiture of remission.
What his history does show is that he has at times responded positively to close supervision, but that once that was removed he lacked the maturity and self-discipline to take control of his life.
The Commissioner of Correctional Services considers the defendant suitable for detention in detention centre or a training centre, but when the court is dealing with a drug trafficking offence, a favourable assessment by the Commissioner of Correctional Services is not, on its own, sufficient reason to depart from the sentencing guidelines. There must also be exceptional circumstances to justify such a course.
Although the courts have not spelt out in any detail what those exceptional circumstances are, one such must surely be that the court is persuaded that the circumstances of the offence suggest that the defendant is not heavily involved in the drug trade, and the circumstances of the offender are such as to give the court substantial reasons to believe that the offender is genuinely interested in rehabilitating himself.
It seems to me that in respect of this defendant, his family and friends want to believe he will rehabilitate himself, hope that he will, and long for that to happen, but I cannot see, even in his recent conduct in prison, any basis for concluding that this is anything more than hope and longing prompted by love and goodwill for him.
Regretfully, I have come to the view that there is not present here the exceptional circumstances that would justify me departing from the sentencing guidelines.
Having determined that I cannot depart from the sentencing guidelines, it now falls to me to determine the appropriate sentence for this defendant within those guidelines.
In the present case, the quantity of drugs is within the 6 to 9 years’ imprisonment band, as it covers trafficking in 180.63 grammes. Given the amount involved and the defendant’s record, I adopt 7 years as my starting point. I discount that sentence by one-third to allow for the plea of guilty.
The resulting sentence is 4 years 6 months’ imprisonment.
There is nothing further in the mitigation to justify any greater discount of the sentence.
The defendant is sentenced to 4 years 6 months’ imprisonment.
Would the defendant stand. Mr Lam, I have heard everything that your counsel has said, and he has spoken most eloquently for you in an endeavour to persuade me that I should impose a sentence other than imprisonment. Were you involved in criminal conduct other than drug trafficking, that option might be available to me. However, in respect of drug trafficking, the courts have always adopted a much stricter approach, and the fact that you are young is not, on its own, sufficient reason for me to depart from the guidelines laid down by the Court of Appeal. That is why I have sentenced you to prison.
But, as your counsel has indicated, you are now very much at a point in your life where you have to decide in what direction you will choose to go. If, when you are released from prison, you continue to associate with persons involved in drug trafficking and triad crime, then your future is bleak indeed. I hope that your family and your friends will continue to support you, but ultimately, your future is in your own hands. You may sit down.