COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug involving 1,756 grammes of a solid containing 1,519 grammes of ketamine.
At about 12.09 pm on 2 August 2021, a police officer saw the defendant walk out from Wang Cheong Commercial Building, which is situated at Nos. 249 to 253A Reclamation Street, Mong Kok, Kowloon. He was carrying a large transparent plastic bag containing an opened paper box in his right hand and a mobile phone in his left hand. The defendant was then intercepted by the police and he was searched. A total of 1,756 grammes of a solid containing 1,519 grammes of ketamine was found in the paper box.
The defendant frankly admitted under caution that “Ah Sai” had asked him to pick up dangerous drugs from Reclamation Street and deliver them to Yuen Long, after which the defendant will be paid $12,000.
The ketamine in question had a street value of $1,108,870.
The defendant is 46 years old. He is a divorcee with no living family member in Hong Kong. He received education in Hong Kong up to Form 2 level. He has been suffering from heart disease and I have been informed that he will receive a heart surgery arranged by the Correctional Services Department in April 2023.
Since his last discharge from prison in June 2021, he was unable to find a job due to the pandemic and his own medical condition. He relied on borrowing money from friends to support his living. Under financial pressure, the defendant agreed to deliver dangerous drugs in exchange for a reward.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. Following Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal held that trafficking in 1,000 grammes and 2,000 grammes of ketamine, the appropriate starting points should respectively be no less than 14 and 18 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. On the evidence, there is nothing to suggest that the defendant had any role beyond the culpability of an ordinary courier. I therefore assess his culpability as with any other courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes. This would yield a starting point for the sentence. In respect of this defendant trafficking in 1,519 grammes of ketamine, a mathematically-calculated place within the sentencing band would be 16 years’ imprisonment after rounding down. I cannot see any basis for departing from the mathematically-calculated place within the relevant band.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance the starting point. The defendant had some 30 previous convictions with two for trafficking in dangerous drugs and 11 for possession of a dangerous drug. His first trafficking offence dates back to year 2000 for which he was sentenced to 12 months’ imprisonment.
The last trafficking offence was in 2007 when he was also sentenced to 12 months’ imprisonment. His last conviction, that is, prior to the commission of the offence in this case on 2 August, was on 13 May 2021 whereupon he was sentenced to 6 weeks’ imprisonment. That offence did not concern trafficking in dangerous drugs.
After his release from prison, he was then arrested and charged again for another, albeit minor, gambling offence, and he then failed to answer court bail. The present offence was committed on 2 August 2021, which was relatively shortly after he was released from prison and whilst he was on bail.
It is well established that the existence of prior convictions for drug trafficking is an aggravating factor for the present purposes (See HKSAR v Har Tsz Yui [2020] 1 HKLRD 307). In the circumstances of this case, the appropriate enhancement is, in my view, 3 months. This brings me to a notional sentence of 16 years and 3 months’ imprisonment.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence after trial, bearing in mind that personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point, which brings the notional sentence down to 10 years and 10 months’ imprisonment. In the circumstances of the present case, no other additional considerations are relevant insofar as the sixth step is concerned.
I sentence you to 10 years and 10 months’ imprisonment.