COURT: The defendant has been convicted on his own plea on one charge of trafficking in dangerous drugs.
The Particulars of Offence provide that on 24 March 2014, at the Customs & Excise Department Private Car Clearing Depot, Lok Ma Chau, New Territories in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 9.54 kilogrammes of a powder containing 7.38 kilogrammes of ketamine and 0.22 kilogramme of a mixture containing 0.11 kilogramme of heroin hydrochloride.
The Summary of Facts admitted by the defendant provides that at around 2.41 pm on 24 March 2014, a private car driven by the defendant was intercepted when it arrived at the Customs & Excise Department Private Car Clearance Depot at Lok Ma Chau.
A search of the car was conducted. 22 packets containing suspected dangerous drugs were found from the hidden compartments of the taillights of the vehicle.
The defendant was arrested for trafficking in a dangerous drug. Under caution, he said:
“Well, I received 10-odd thousand bucks from someone on the mainland for driving the “k chai” and heroin down from the mainland.”
The suspected dangerous drugs were subsequently confirmed to be:
(a) 9.54 kilogrammes of a powder containing 7.38 kilogrammes of ketamine; and
(b) 0.22 kilogramme of a mixture containing 0.11 kilogramme of heroin hydrochloride.
In his video-recorded interview, the defendant said under caution, inter alia, that:
(1) A few days ago, the defendant saw his friend “Ah Man” while the defendant was drinking at a pub in the mainland. “Ah Man” asked the defendant to transport ketamine and heroin to Hong Kong and promised him a monetary reward. The defendant agreed because he was not earning enough money as a driver;
(2) On the date of the offence, the defendant met up with “Ah Man” at a restaurant in the mainland. “Ah Man” gave ketamine and heroin to the defendant. They used cling film to wrap the drugs;
(3) The defendant hid the drugs inside the empty space of the taillights of the vehicle;
(4) The defendant had been given a contact number and instructed to contact an unknown person after he arrived in Hong Kong;
(5) This was the first time he brought dangerous drugs to Hong Kong for “Ah Man”. He had been promised a reward of $18,000, which he had not received when he was arrested;
(6) The defendant was not the owner of the vehicle. He had rented it from a garage in Yuen Long for driving his customers.
The vehicle was registered under the name of a company. The owner of this company confirmed that the vehicle had been leased to the defendant.
In March 2014, the seized dangerous drugs had the following estimated retail value:for the ketamine, HK$1,125,720; and for the heroin, HK$172,040.
On 23 March 2014 at around 6.07 pm, the defendant departed from Hong Kong via Lok Ma Chau Terminal. On 24 March 2014 at around 2.38 pm, he arrived in Hong Kong via Lok Ma Chau.
The defendant admits and accepts that he was trafficking in the dangerous drugs seized in this case.
By way of personal background, the defendant is 55 years of age. He was born in Hong Kong in February 1960. He has received education up to Primary 5 level. After he left school, he has worked as an apprentice as a motor mechanic, a decoration worker, and since 2007, as a driver. He had also worked for a time as an electrical appliances apprentice.
The defendant is single and before his arrest, he lived alone. His parents and three of his brothers had passed away, and his eldest brother and eldest sister live in Hong Kong.
The defendant has a total of 13 previous criminal convictions, two of which were drug-related, with one being conspiracy to manufacturing dangerous drugs. That was in 1997, for which the defendant was sentenced to 20 years’ imprisonment, which was reduced to 14 years on appeal against sentence.
By way of mitigation, Mr McGuinniety submitted on behalf of the defendant that he is genuinely remorseful, which is borne out by his guilty plea at an early stage in the Magistrates’ Court. This court accepts this, and will give the defendant an appropriate discount in due course.
Mr McGuinniety went on to outline the defendant’s background in some detail, and produced two mitigation letters. But as has been pointed out by the courts in many previous occasions, the personal background of the defendant will offer no mitigation in a drug trafficking offence of such a serious nature.
The defendant has been convicted on one charge of trafficking in dangerous drugs, namely 9.54 kilogrammes of a powder containing 7.38 kilogrammes of ketamine, and 0.22 kilogramme of a mixture containing 0.11 kilogramme of heroin hydrochloride.
The quantity of ketamine involved in this case is very substantial,in fact way beyond the uppermost band of 1,000 grammes in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, which sets out the tariffs for trafficking in ketamine. In the Hii Siew Cheng case, the Court of Appeal held that for trafficking in over 1,000 grammes of ketamine, the proper sentence after trial should be 14 years upwards.
In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal, having considered the rate of enhancement of starting points for trafficking in large quantities of other dangerous drugs (such as heroin and “Ice”), made the observation that the appropriate starting points for trafficking in 2,000 grammes and 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years. In the Sin Chung Kin case, the narcotics involved were 5.12 kilogrammes of ketamine and 18.8 grammes of cocaine. The Court of Appeal approved of the overall starting point of 22 years, noting that the starting point for trafficking in 18.8 grammes of cocaine alone could be as long as 6 years.
The analysis in the Sin Chung Kin case was reaffirmed by the Court of Appeal in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. At paragraphs 17 and 18 of itsJudgment, the Court of Appeal expressly endorsed the view that:
“there should be a meaningful distinction between the sentence for trafficking in only 600 grammes of heroin and that for trafficking in twice that quantity. A distinction should also be drawn between the sentence where there were aggravating factors and the sentence where no aggravating factors were present.”
The Court of Appeal further held that the principles set out in the above quoted passage are applicable to trafficking in large quantities of any dangerous drugs, including ketamine.
In the Chow Yau Ching case, the Court of Appeal approved a starting point of 19 years and 9 months for trafficking in 2.89 kilogrammes of ketamine.
In the present case, the narcotics involved are 7.38 kilogrammes of ketamine and 0.11 kilogramme of heroin hydrochloride. In my view, the appropriate initial starting point for sentence should be 25 years’ imprisonment.
In coming to that view, I note that the starting point for trafficking in 110 grammes of heroin hydrochloride alone could be as long as 9 years and 7 months’ imprisonment. Further, I have taken into account that there should be a “meaningful distinction” between the sentence in the Sin Chung Kin case and that in the present case, based on the substantially larger quantity of ketamine involved (7.38 kilogrammes vs 5.12 kilogrammes).
The defendant was caught bringing the drugs in question from mainland China into Hong Kong. The initial starting point of 25 years’ imprisonment should be enhanced by 2 years for the international element in the present case, see HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, paragraphs 42 and 43. This takes the starting point up to 27 years’ imprisonment.
I will give the defendant the full one-third discount for his guilty plea, which was tendered at the first opportunity at the Magistrates’ Court.
Defendant, can you please stand up? You are accordingly sentenced to 18 years’ imprisonment.