CRIMINAL CASE NO. 101 OF 2010
COURT: You have pleaded guilty to a charge of trafficking in 1.96 kilograms of a powder containing 1.35 kilograms of ketamine, the latter quantity being the operative amount for sentencing purposes.
The facts, which you have accepted at the Magistrates’ Court and again confirmed here today, reveal that you went to the mainland in order to bring the drugs concerned over the border into Hong Kong for delivery to two persons. In short, your role was that of a courier, for which, I am told and you told the police, you would receive $10,000.
Where the drugs were ultimately destined is unclear, but you were arrested as you were walking towards the departure hall at the airport. Whether you were intending to give the drugs to someone leaving Hong Kong or someone arriving, or simply using the airport as a public rendezvous, is unknown, and I cannot and do not use that fact to your disadvantage in determining sentence. For all I know, you may have been simply intending to use the train from the airport.
However, the fact is that you did successfully bring the drugs into Hong Kong from the mainland, across the border and through Customs, that afternoon. That does, to my mind, on the authority of HKSAR v Abdullah Anwar Abbas (CACC304/2008), aggravate the starting point or enhance the starting point for sentence. I assess that enhancement by virtue of that fact at 1 year’s imprisonment in addition to the starting point adopted in your case.
One must remember that for the offence of trafficking in very large quantities with an international element, which includes trafficking across the border with the mainland, the court in Abbas considered that enhancement of sentence would not normally be less than 2 years’ imprisonment. However, the court in Abbas was dealing with new guidelines in respect of heroin from 600 grammes and 20 years’ imprisonment upwards, and sentences for heroin are significantly greater than sentences for ketamine, particularly at the very large quantity levels. So in my judgment, the appropriate enhancement by virtue of the international trafficking element for this quantity of ketamine would be 1 year.
So far as the starting point is concerned, the guidelines in Secretary for Justice v Hii Siew Cheng (2009) 1 HKLRD 1 run out at 1,000 grammes, or 1 kilogram. It was held that for over 1,000 grammes, or 1 kilogram, a sentence after trial should be 14 years upwards. Here, I am dealing with 1.35 kilos of ketamine.
In my view, the appropriate starting point in this case for that amount would be 15 years’ imprisonment, which I enhance, for the reason I have just stated, by 1 year, making an overall starting point of 16 years’ imprisonment.
You pleaded guilty, which is the most significant aspect of mitigation in your favour. Moreover, you pleaded guilty, as your counsel has pointed out, at the first available opportunity, namely at the Magistrates’ Court, as a result of which you were committed to this court for sentence, thereby saving considerable time, trouble and expense in the preparation of the case against you.
It is fair to say that you immediately admitted you had been caught red‑handed, and made an immediate full confession to the police in interview. You have consistently accepted that position throughout your appearances before the Magistrates’ Court where you pleaded guilty, thus resulting in you being committed for sentence to this court, where you have confirmed your plea today.
In my judgment, you are entitled to significant recognition of the position you have from the outset taken to these proceedings. Whether it is born of genuine remorse or a recognition of the difficulty of your position and the strength of the evidence, the fact is you have never denied your guilt or resiled from your position, and you have thereby saved considerable time and expense both for the police, the prosecuting authority, and the courts.
I also bear in mind your young family and the fact that your wife will shortly be giving birth to another child, whose formative years you will not witness. I hope that absence will bring home to you the folly of your involvement in offences such as this. It will also bring home to you that these things are often harder for those who are left behind to pick up the pieces and deal with the consequences of your actions.
In all the circumstances, but in particular your early plea from which you have never resiled, and your attitude to the case against you, the sentence that I pass is one of 10 years and 6 months’ imprisonment.