COURT: The defendant is charged with one count of trafficking in a dangerous drug and one count of possession of a dangerous drug.
It is alleged that he unlawfully trafficked in 189 grammes of a solid containing 157 grammes of ketamine on 30 March 2022. Also in his possession were 4.37 grammes of a solid containing 3.59 grammes of ketamine on the same day. He pleaded guilty before a magistrate on 31 July last year and was committed to the Court of First Instance of the High Court for sentence.
According to the Summary of Facts to which he agreed, on 30 March 2022, the police executed a search warrant at Room 6106 of the Nina Hotel in Tsuen Wan West. A paper box containing the drugs specified in Count 1 was found in the safe. Also there was one electronic scale and one plastic bag containing 61 empty resealable plastic bags and two strainers.
The defendant and two other males were present in the hotel room at the time. When being arrested, the defendant stated under caution that he bought the ‘K Chai’ inside the safe here last night.
Upon search, the police also found underneath his underpants one bag of ketamine which is the subject of the 2nd count. And he stated under caution that the packet of ‘K Chai’ inside his underpants was bought by him last night.
The street value of the ketamine seized from the safe was HK$92,473 and those found on his person was $2,115.
In a video-recorded interview conducted with the police, he made the following admission under caution.
He said in respect of the ketamine found in the hotel safe, he acted under the instruction of a male called ‘Ah Kau’ to collect those drugs on 26 March 2022. And he collected that bag of drugs together with the other paraphernalia found inside the hotel room from somewhere in Tsuen Wan and then took them back to the hotel room. He knew that the drug inside was ketamine but he did not know about the intended use of the paraphernalia.
He said Ah Kau told him to keep those items with him until he is asked to hand over to other people, and he would receive $5,000 after completion of the task. He also said that the ketamine found in his underpants were given by Ah Kau and they were taken from the plastic bag that he collected earlier. He kept those drugs for his own consumption or for giving to another as a gift because he is addicted to ketamine and ‘Ice’. Also he said the other two males in the hotel room were there for horse gambling and they have no knowledge about the drugs and the related items.
I will now come to the background of the defendant. He is now 43 years of age. He has received Form 3 education. He was a transportation worker before his arrest and used to live together with his parents. He has a total of 10 criminal convictions including two for the offence of possession of dangerous drugs some years ago. And he admitted to remain a drug addict now.
In mitigation, defence counsel Mr David Boyton urged this court to take into account his guilty plea and to give him the full one-third discount. He also urged this court to take into account the fact that the latent risk of the drug involved in the 2nd count be subsumed into the final sentence and to impose a completely concurrent sentence for both counts.
I bear in mind the approach to sentencing for the offence of trafficking in dangerous drugs laid down in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
Having regard to the facts of the present case including the admission made by the defendant, I accept that his role was one of a courier and a storekeeper. Therefore his sentence is to be determined primarily by reference to the relevant guideline and the quantity of the drug concerned.
According to the guideline in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 107, the starting point for trafficking between 50 to 300 grammes of ketamine is 6 to 9 years’ imprisonment.
Count 1 involves a total of 157 grammes of the ketamine narcotic. On a pure arithmetic approach, a starting point of 7 years and 3 months, that is 87 months in total, would be appropriate. The arithmetic approach is suitable for the courier or storekeeper who are recognised to be at lowest rank in the trafficking hierarchy.
Taking into account the facts of this case, the role of the defendant and all the circumstances, I adopt 7 years and 3 months’ imprisonment as the notional starting point for sentence in Count 1. There being no aggravating factor, it is the same 7 years and 3 months I adopt as the starting point after trial.
The defendant pleaded guilty at the earliest opportunity and he is entitled to the full one-third discount. There being no other mitigating factor, this is the extent of discount he is entitled to. So in respect of Count 1, he is sentenced to 4 years and 10 months’ imprisonment.
In respect of the 2nd count, a total of 3.59 grammes of ketamine is involved. There is a latent risk factor involved because he agreed or he admitted under caution that he would give some of those drugs to other people as a gift.
Taking into account the background of the defendant including his criminal conviction for possession of dangerous drugs, the quantity involved, and the latent risk factor, I adopt 12 months as the starting point. Again, a one-third discount is given to him for his guilty plea. So in respect of the 2nd count, he is sentenced to 8 months’ imprisonment.
In respect of the ultimate sentence, I bear in mind the principle of totality. If the amount of the ketamine in the 2nd count had been part of the drug in the trafficking charge, it would have made no difference to the sentence. Therefore, I order the sentence in the 2nd count to be served totally concurrent to the sentence in the 1st count.
The ultimate sentence for both counts is 4 years and 10 months’ imprisonment.