COURT: The defendant pleaded guilty to one charge of trafficking in dangerous drugs. The dangerous drugs were:
(1) 9.21 grammes of a crystalline solid containing 9.08 grammes of methamphetamine hydrochloride, commonly known as "Ice"; and
(2) 93.88 grammes of a solid containing 80.81 grammes of ketamine.
The facts admitted by the defendant showed that officers of the Yau Tsim District Special Duty Squad conducted an anti-dangerous drugs operation at a residential premises on Nathan Road.
At about 1.27 am, the defendant, who is a Russian national and holds a Hong Kong Identity Card, left a flat on the 9th floor, closed the door and walked to the lift lobby. She was carrying a blue handbag and appeared to be suspicious and was looking around. She was intercepted and searched. Inside her handbag was found one piece of tissue paper containing seven packets of suspected ketamine. In the left front pocket of her jeans was found a packet of suspected "Ice".
Subsequent analysis by the Government Chemist confirmed the nature and the quantity of the dangerous drugs as particularised in the charge. The combined narcotic quantity of the drugs was 89.89 grammes.
Police declared arrest on the defendant for the offence of trafficking in dangerous drugs and, under caution, she denied the offence. Police used a set of keys found in the defendant’s possession to access Flat D on the 9th floor. Three men and one woman were in the flat.
There were further seizures of dangerous drugs and paraphernalia from one man, and in the living room, police seized small quantities of "Ice", herbal cannabis, cannabis resin, Nimetazepam and an inhaling device containing traces of methamphetamine and N,N-dimethylamphetamine. Another inhaling device also showed traces of methamphetamine and cocaine. Police also found one electronic scale, lighters, forceps and a box of aluminium foil. None of those items are the subject of a charge.
On top of a TV cabinet in the flat, police found a telephone bill issued to the defendant.
The estimated retail value of the "Ice" and ketamine combined was about HK$17,754 as at July 2010 when the offence took place.
At all material times, the defendant was trafficking in the dangerous drugs.
The defendant has a clear record and details from her antecedents statement were given. She was aged 32 at the time the statement was taken. Her date of birth is 10 September 1980. She has a clear record. She was educated in Russia. At the time of her arrest, she was working as a part-time translator.
In mitigation, I was advised that the defendant is a Russian national. She is aged 33 years. She was raised and educated in Russia. She married a Hong Kong man and came to Hong Kong and worked as a part-time translator. That was some nine or 10 years ago. There was a son of the marriage who is 8 years old. Despite her length of residence in Hong Kong, this defendant does not have a permanent ID card, nor has she applied for one.
She was living with her husband’s extended family which led to tension and, eventually, marital separation. She was living with another man at the time of the arrest. The Defendant has kept contact with her son and she intends to return to her husband when she is released from prison.
Counsel urged on me in mitigation that the defendant was only a courier; there was no suggestion that she was pushing dangerous drugs and it was clear that the man she was living with is the likely instigator.
While on remand in prison, she has worked and pursued study courses, one for religious studies, the other for improved writing skills. She pleaded guilty and it is most unlikely that she will come before the courts again.
Sentencing authorities were put before the court: HKSAR v Wong Kin Kau [2010] 4 HKC 443 and also HKSAR v Yim Hung Lui Ricky, CACC 266/2011. Both cases were concerned with sentencing where more than one type of dangerous drug was involved. The court, in Wong Kin Kau, considered two different approaches to sentencing a defendant who trafficked in more than one type of drug, the individual approach and the combined approach. Whichever approach was taken, the paramount consideration was the totality of the overall starting point. It was suggested that often it was the combined approach that was more likely to lead to a correct overall sentence.
On the basis of a report by Dr M Lam, a consultant psychiatrist, which was prepared on 4 March 2011 found in the committal bundle, it appears that methamphetamine and ketamine present roughly the same level of danger to the user.
If sentencing individually, the narcotic quantity of the "Ice" will attract a sentence at a starting point of 6 to 7 years after trial. The narcotic quantity of ketamine, 80.81 grammes, on the guideline came within the 6 to 7 years sentencing range.
I conclude that an overall starting point for these offences based on the combined narcotic quantity should be 7 years’ imprisonment. I am advised that, in fact, at the earlier trial this defendant went through, she was sentenced to 7 years’ imprisonment.
Further authorities were put before the court about the proper discount to be given on sentence where, as here, a not guilty plea had resulted in a trial and a plea of guilty was only made at the retrial. Here, the retrial was a result of judicial misdirection.
I consider that the major mitigating factor here was the defendant’s plea of guilty and although I have the discretion to give a lesser discount than the one-third discount for her plea, I do not consider that this is an appropriate case in which I should do that. I note that because of the retrial, the defendant has had this case hanging over her for a longer period than was absolutely necessary.
Accordingly, I set the starting point at 7 years’ imprisonment. I reduce it to 56 months for the plea and order that the total sentence to be served is 56 months; that is 4 years and 8 months.