CRIMINAL CASE NO. 342 OF 2010
COURT: Ip Chi-hang, on 24 March of this year, you were caught on the 12th floor corridor of a building in Kwun Tong in possession, for the purposes of trafficking, of a quantity of ketamine. In your pocket were 10 bags of powder containing 101.32 grammes of ketamine, and in a bag you were carrying were seven further packets containing 57.97 grammes of ketamine, so the total of these 17 plastic bags was 159.29 grammes of ketamine. You also had about $8,000 cash on you and the keys to a nearby flat on the 12th floor.
In a bedroom of that flat, police found a plastic bag containing 10.76 grammes of ketamine.
You said in relation to all the dangerous drugs that they were for your own consumption, but you declined to give any further detail.
Now, in Charge 1, you have pleaded guilty to trafficking in the dangerous drugs found in your possession on the 12th floor - that is, 159.29 grammes - and you have pleaded guilty in Charge 2 to simple possession of the dangerous drugs found in the flat, 10.76 grammes of ketamine. Those pleas were entered before the magistrate, and you have been committed to this court for sentence.
As you know, sentencing for trafficking in dangerous drugs is based primarily on the quantity of the dangerous drugs involved; here, the 159.29 grammes. The Court of Appeal has laid down sentencing guidelines which were established for ketamine in June 2008, over two years prior to the commission of your offence, and this court has a duty to apply those guidelines.
There must be no confusion between your offence of trafficking in dangerous drugs, Charge 1, and possession of dangerous drugs, Charge 2, to which different considerations apply. I shall return to those considerations in a moment.
As far as Charge 1 is concerned, trafficking in a dangerous drug, I am concerned with your trafficking in 159.29 grammes of ketamine. The guidelines of the Court of Appeal put that quantity in a band of 50 to 300 grammes, for which sentences of 6 to 9 years’ imprisonment before mitigation are prescribed.
I have been given much detail of your personal circumstances, which I note, but of course the major component of your mitigation is your plea of guilty. That leads to a discount of one-third from the appropriate starting point.
Miss Wong has submitted that factors other than quantity may be considered, such as the number of packets and the role of the offender, but in your case I do not find these to have any significant impact. You had 17 packets of dangerous drugs in your possession after you left your flat, and quite a lot of cash in your possession for someone not in employment. I am not told the size of the packets, whether they were in quantities suitable for retailing to users, which might have been an aggravation.
Clearly, your case falls into the bracket of 50 to 300 grammes of ketamine, but this is not a case of me sitting here with a calculator to work out your sentence mathematically. It is a matter of judgment. I am asked to put your case at the lower end of the bracket because of your personal mitigation.
In all the circumstances of the commission of this offence, I judge the appropriate starting point on Charge 1 to be 7½ years’ imprisonment.
I note the personal mitigation which is set out in considerable detail in Miss Wong’s written submissions. I do bear those matters in mind, but as I have said, it is the pleas of guilty which count most, because they lead to that one-third discount, and on Charge 1, that reduces your sentence from the 7½ years’ starting point to 5 years’ imprisonment on that charge.
As to Count 2, the drugs in the flat which were 10.76 grammes in weight, the question here is firstly, what starting point the court should take for sentence; and secondly, whether there was any latent risk of redistribution to other people of those drugs, given all the circumstances of the case, including the fact that you were a trafficker, the quantity of drugs involved, your claim that you were a consumer, and the fact that these drugs were at your home and had not, like the drugs in Charge 1, been taken out.
I am in no doubt that there was such a risk of redistribution. Indeed, the chances were very high. Even if a portion of those drugs were discounted to reflect your claim that you were a consumer, there remained a very high latent risk that the remainder would be redistributed.
In determining the sentence on Charge 2, this is a matter which I must take into account.
The normal starting point for simple possession of dangerous drugs such as heroin, cocaine or “Ice” would be in the range of 12 to 18 months. Ketamine is properly to be regarded as falling into a category at the lower end of that range.
Before considering the issue of latent risk, I take 12 months’ imprisonment as the appropriate sentence for possession of 10.76 grammes. I am satisfied that term should be enhanced to 15 months to reflect the latent risk to which I have referred. That 15 months must then be discounted by one-third to 10 months to reflect your plea of guilty.
So the question is then to what extent, if any, a portion of that 10 months should be ordered to run consecutively to the term in Charge 1.
I judge that it is appropriate that 3 months of that 10 months should run consecutively to the term on Charge 1, and that the balance of 7 months should run concurrently. That adequately reflects the fact of the possession of this further quantity and the latent risk, but does not add greatly to the sentence on Charge 1.
Accordingly, I impose a sentence of 5 years’ imprisonment on Charge 1, and 3 months’ imprisonment, consecutive, on Charge 2.