CRIMINAL CASE NO. 157 OF 2011
COURT: On 6 May of this year, the defendant pleaded guilty at the Eastern Magistrates' Court to one charge of trafficking in dangerous drugs. At that time he admitted a Summary of Facts in support of the charge. Today before me he has confirmed that plea of guilty and the accuracy of the Summary of Facts.
The particulars of the offence alleged that he did, at the Lo Wu Control Point, in the New Territories, on 6 January, traffic in a powder consisting of 990.41 grammes within which there were 819.91 grammes of ketamine.
The Summary of Facts, admitted by the defendant, is all too familiar. It reveals that at the early hours of 6 January a team of police officers on duty at the Lo Wu Control Point observed the applicant exiting from the Customs and Excise post. He appeared to be nervous. He was apprehended and the officers asked to search him. Subsequently they did this and they found concealed in his underwear the four transparent packets which they suspected contained dangerous drugs. That suspicion proved to be correct upon subsequent analysis by the government chemist.
The defendant admitted at the time that he was aware that he was trafficking in ketamine and he said in response to his being arrested, “I got no money and nothing to do. Unemployed, so helped someone to bring a few ‘K Chai’ over to Hong Kong to make a bit of cash.” He subsequently told the officers that he was paid something in the order of $5,000 to bring the ketamine into Hong Kong.
The defendant is aged 54. I am told by his counsel that he is not in good health and has a heart condition. I am also told that his personal circumstances are such that he has a very young child, aged five years, as a result of a relationship he has formed with a lady in Shenzhen. The consequences of his arrest and detention have severely impacted on that family unit.
Other matters that emerged are that whilst he was last convicted of an offence in Hong Kong in 1984 of obtaining property by deception, he was, in 1985, arrested in Thailand charged with trafficking in a significant quantity of heroin and was sentenced to be imprisoned for 15 years. He was released in 2000 and returned to Hong Kong.
It is said on his behalf it is to his credit that he has, since that date, remained out of trouble. Be that as it may, it is manifest that he is a person who is acutely aware of the implications that follow from those who are apprehended trafficking in dangerous drugs.
The Court of Appeal has provided guidance to judges when sentencing those convicted of this offence. In June of 2008, the decision of Secretary for Justice v Hii Siew Cheng was delivered. That decision is reported at [2009] 1 HKLRD 1. The Court of Appeal there set out guidance as to the range of sentences to be imposed based upon the quantity of ketamine being trafficked. The parameters of the guidelines with respect to this defendant are in the band 600 grammes to 1,000 grammes of ketamine. The Court of Appeal has indicated that a starting point for sentence, after trial, of between 12 and 14 years’ imprisonment is appropriate.
Bearing in mind those guidelines, it seems to me that the appropriate starting point for sentence, after trial, in the instant case is 13 years’ imprisonment. The defendant is and will be given a full one-third discount from that to reflect his plea of guilty. It is apparent from this authority and others that the personal circumstances of those who traffic in dangerous drugs rarely enable a sentencer to depart from those guidelines. The circumstances of this defendant and the commission of the offence and his family circumstances do not justify any departure. He will receive a discount of one-third from the 13 years.
That will result in a term of imprisonment of 8 years and 8 months. That is the sentence that I impose.