CRIMINAL CASE NOS. 10 AND 36 OF 2010
COURT: The three defendants are jointly charged with an offence of conspiracy to traffic in ketamine. Each pleaded guilty before me to that offence. Additionally, the 3rd defendant pleaded guilty to an offence of possession of 0.47 grammes of ketamine.
The facts of the conspiracy offence are as follows. The 1st and 2nd defendants were recruited by the 3rd defendant to distribute ketamine on his behalf. They did this by collecting a stock of ketamine from the 3rd defendant and then driving with it in vans provided, in the case of the 1st defendant, by the 3rd defendant, to locations as directed by him.
Each of the 1st, 2nd and 3rd defendants knew of the role of the other. The 2nd defendant collected, at least on occasion, the drugs from the 3rd defendant, and then, on the 3rd defendant’s instructions, provided half to the 1st defendant.
Once having been placed in possession of the drugs, both the 1st and 2nd defendants would await the 3rd defendant’s telephone call as to where and to whom to deliver the drugs. The precise method of receiving payment for the drugs from the persons to whom they were delivered varied, but the 1st and 2nd defendants were paid, I accept, on a per delivery basis.
On 3 September 2009, the 1st and 2nd defendants met for tea while waiting for the 3rd defendant’s instructions for delivery of the drugs they had received. The police had followed the 1st defendant’s vehicle to the meeting place, and there arrested both the 1st and the 2nd defendants.
In the 1st defendant’s van was found nine packets of ketamine totalling 102.28 grammes of the drug. In the 2nd defendant’s van was found 11 packets of ketamine totalling 126.31 grammes of the drug. The street value of the 20 packets of drug was about $32,547.
A few days after the arrest of the 1st and 2nd defendants, the 3rd defendant was arrested at Hong Kong International Airport, apparently as he returned to Hong Kong after a short trip outside the jurisdiction. He was taken for a home search, and the drugs the subject of the 2nd charge were found in his room. He admitted they were his, and said they were for his own consumption.
All the defendants, when eventually interviewed, admitted their roles in the conspiracy. The 1st defendant admitted that he had become active in the conspiracy the day before his arrest. The 2nd defendant admitted that he had joined the conspiracy some eight days before his arrest. The prosecution does not dispute those times of the 1st and 2nd defendants joining the conspiracy.
The 3rd defendant’s involvement then can have been no longer than that of the 2nd defendant. He admitted providing the drugs to the 1st and 2nd defendants and giving them delivery instructions.
In my view, this was a not particularly sophisticated conspiracy, but it was indefinite and designed to supply drugs to others who in turn, given the quantities of 10 grammes per packet, it seems likely also trafficked in them.
The 3rd defendant was obviously the person in control of and directing the operation. Both the 1st and 2nd defendants I therefore accept to have operated under the directions of the 3rd defendant.
So far as the 1st and 2nd defendants are concerned, their roles as conspirators are indistinguishable one from the other. They are of similar culpability. I do not think the differing quantity of drug each possessed or the number of days each was involved in the conspiracy at the time of his arrest alters that. The conspiracy was interrupted by the intervention of the police, and otherwise would have continued indefinitely.
So far as the 1st and 2nd defendants are concerned, I take a starting point of sentence of 10 years’ imprisonment. Given their plea of guilty and their willingness to give evidence against the 3rd defendant, which I am sure, in conjunction, prompted his plea of guilty, I reduce that starting point by 45 per cent to sentences of 5 years 6 months’ imprisonment.
There is no other mitigation available to them. I do not take into account what I am told was a threat to the 2nd defendant’s family members prior to the guilty plea of the 3rd defendant. That was a threat which, if made, was, given its timing, no doubt aimed at preventing the course of justice, rather than expressing any potential for future revenge. In any event, that potential is encapsulated in the reduction in sentence received by each of the 1st and 2nd defendants.
So far as the 3rd defendant is concerned, I take a starting point of sentence of 13 years’ imprisonment. I propose to give him full credit for his plea of guilty. That is the current practice, although in the circumstances of this case it seems over-generous. There is no other mitigation.
That reduces his sentence to one of 8 years 8 months’ imprisonment.
I might add that likewise, I do not take into account, so far as the 3rd defendant is concerned, any threat that may have been made to the 2nd defendant’s family member.
So far as the 2nd count of possession of ketamine against the 3rd defendant is concerned, I take a starting point of 9 months’ imprisonment. I do not think there was any significant risk of those drugs falling into the hands of others, given their small quantity, their location in his room, and the fact that the distribution of the trafficked drugs was professional and obviously a quite separate operation from the drugs kept by D3 for his own consumption.
I reduce that starting point of sentence, given the plea of the 3rd defendant, to 6 months’ imprisonment.
Considering the totality of sentence, and given the gravity of the first charged offence and the sentence attached to it, I do not think the 3rd defendant’s possession of these drugs adds significantly to his overall culpability, and I order the two sentences be served concurrently so far as the 3rd defendant is concerned.
That results in sentences of 5 years 6 months’ imprisonment for each of the 1st and 2nd defendants, and in a sentence of 8 years 8 months’ imprisonment for the 3rd defendant.
Now, I do not have power, nor do I attempt to direct the Correctional Services Department as to how to deal with this matter, but although I have not taken the threat that I have heard about into account in terms of sentence, it might be - it is a matter for the Correctional Services Department - but it might be wise to keep the 3rd defendant separated from the first two defendants.