CRIMINAL CASE NO. 70 OF 2012
COURT: Defendant, you were convicted upon your guilty pleas of two counts of trafficking in dangerous drugs.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, your background, and mitigation put forward on your behalf.
The facts of the case are simple. At about 9.30 pm on 30 October 2011, you were intercepted by the police when you were using a key to open the iron gate to a flat in Yuen Long.
Upon search of you, a plastic bag was found in the waistband of your trousers. Inside this bag were seven smaller plastic bags containing a total of 1.75 kilogrammes of a powder containing 0.46 kilo grammes of ketamine.
With the keys found on you, the police gained access into a room of that flat. Inside that room the following items were found: one plastic bag containing 1.03 kilogrammes of a powder containing 0.49 kilogrammes of ketamine; one plastic bag containing 500 tablets containing 1.9 grammes of nimetazepam; three electronic scales, each containing traces of ketamine; one box of resealable plastic bags; and four packs of plastic bags.
Under caution, you said you only carried the “K Chai” on your person up here for someone, thus those in the room are none of your business.
I was told that you are now 24 years of age. You are single, and have completed secondary education. I was also told that you have been working as a kitchen worker, earning about $8,000 a month.
You are not a first time offender. You were convicted two times of the offence of possession of dangerous drugs. The first conviction was in 2008, for which a probation order was imposed. The second conviction was in September 2010. At the same time, you were also convicted of one charge of trafficking in a dangerous drug. For these two offences, you were sentenced to a total of 16 months’ imprisonment.
You were discharged from prison in July 2011. Soon, in about three months’ time, you committed the offence of trafficking in dangerous drugs again, and this time a large quantity of ketamine was involved.
Your counsel urged me to take into account that you are now remorseful and wanted to turn over a new leaf. You have indicated your intent to plead guilty at the pre‑trial review hearing. You have applied for a course in the open university and will continue your study when you are serving the imprisonment term. He told me that you are a responsible member of the family and have been contributing financially to your mother, who brought you up with her own effort, and your elderly grandfather, who is suffering from serious lung illness. He also urged me to accept that you are still young and worth giving a chance. He produced to court a letter written by you and a letter from your mother asking for leniency.
You have pleaded guilty to two counts of trafficking in dangerous drugs. I note that the Court of Appeal said in HKSAR v Chow Yu Chi CACC359/2000 that in circumstances where two offences were committed on the same day on closely‑linked facts, it would have been proper for the judge to have calculated the overall starting point by combining the weight of heroin in each charge to arrive at a total weight. It was further observed that the approach taken by the judge in arriving at the two starting points revealed an error of principle.
I will follow this approach. The main dangerous drug you trafficked in was ketamine. The total narcotic content was 0.95 kilogrammes. The Court of Appeal suggested in the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1 that a sentence of 12 to 14 years’ imprisonment should be considered for trafficking in ketamine if the narcotic content is 600 to 1,000 grammes.
In all the circumstances, I do not find there are good grounds to depart from the tariff.
In my judgment, the committing of a further offence in such a short time after your discharge calls for an enhancement of 6 months.
In all the circumstances, in my judgment, a starting point of 14 years is appropriate and sufficient for each count. Despite Count 2 involves another type of dangerous drug, nimetazepam, in view of its nature and small quantity, I do not think it has any significance in determination of the starting point.
You are entitled to a one-third discount for your guilty pleas. Having heard what your counsel told me, I will give you a further discount of 1 month.
By reason of the matters aforesaid, I sentence you to 9 years and 3 months’ imprisonment for each count. The sentences are to run concurrently.
You are to serve a total sentence of 9 years and 3 months.