CRIMINAL CASE NO. 273 OF 2008
COURT: The 19-year-old defendant pleaded guilty before Mr William Lam in Eastern Magistracy to an offence of trafficking in 0.03 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, (the 1st charge), and to a further offence of trafficking in a total of 462.64 grammes of ketamine, 16.64 grammes of MDMA, or ecstasy, and 2.99 grammes of nimetazepam, contrary to the same section; (the 2nd charge).
He was committed to this court for sentence pursuant to the provisions of section 81B of the Magistrates Ordinance, Cap. 227.
The facts of the offences were that, on 10 June 2008, Customs officers, on an anti-narcotics operation in Sham Shui Po, saw the defendant emerging from premises in Tai Po Road and intercepted him. He was informed that it was suspected he was carrying dangerous drugs. In his left hand, he was carrying the drugs the subject of the 1st charge and a set of keys. The keys were used to enter the defendant’s room on the 5th floor of the building and it was searched. The drugs the subject of the 2nd charge were found in a cabinet in that room, together with drug packaging paraphernalia.
So far as the 1st charged offence is concerned, I take a starting point for sentence of 9 months’ imprisonment. The only mitigation available to the defendant in respect of this offence, or indeed the offence the subject of the 2nd charge, is his early plea of guilty. On the basis of that, he is entitled to the full discount of sentence and, on the 1st charge, is accordingly sentenced to 6 months’ imprisonment.
So far as the 2nd charged offence is concerned, I ignore the relatively insignificant quantity of nimetazepam and sentence only on the basis of the quantities of ketamine and ecstasy involved.
The drugs ketamine and ecstasy are plainly still to be sentenced on an equal basis (see Secretary for Justice & Hii Siew Cheng (2008) 3hkc323) and, accordingly, I adopt what has been called the combined approach to sentencing and, given the identical guidelines applying to each, simply aggregate the quantities of ketamine and ecstasy together for the purposes of calculating a starting point (see HKSAR v Yip Wai Yin (2004) 3HKC367 and cases referred to therein).
There is one further preliminary matter. This offence occurred on 10 June 2008. On 6 June 2008, new enhanced guidelines for the sentencing of traffickers in ketamine and ecstasy were promulgated by the publishing of the Court of Appeal’s judgment in Hii Siew Cheng. Mr Oderberg for the defendant argued that as this offence occurred a matter of only four days after that judgment was delivered, and where the defendant could not be taken to know of it, some lesser starting point should be, or could be, taken than that suggested by the new guidelines in Hii’s case.
That argument was, however, rejected in similar circumstances in Wong Kwok Wai [1991] 2HKLR384 at 386 and, in my view, I am bound by that decision and the guidelines set out in Hii’s case must apply without reduction for the present case. Those guidelines, as I have said, apply identically to both drugs, that is, ketamine and ecstasy, and the defendant trafficked in a combined total of 479.28 grammes of the drugs.
I take a starting point of sentence on the basis of the sentencing band set out in Hii Siew Cheng of 10 years 6 months’ imprisonment. The only mitigation available to the defendant is his plea of guilty. On that basis, the starting point of sentence is reduced to a sentence of 7 years’ imprisonment.
I do not think the offence the subject of the 1st charge adds to the overall culpability of the defendant and order that the sentences imposed in respect of each charged offence be served concurrently. That is a total of 7 years’ imprisonment.
(Proceedings from 10.46 am not required)
Court rises - 10.48 am
16 January 2009