COURT: In the afternoon of 25 September 2012, Customs officers in plain clothes conducted anti-narcotics operation in the vicinity of Pak Tin Estate.
At about 1615 hours the defendant was observed to drive a seven-seater car, RB 3521, and park it at a parking space on the 3rd floor of the Pak Tin Estate car park next to a light goods vehicle, MJ 4087, parked at the adjoining parking space. He took a black plastic bag from RB 3521 and placed it at the back passenger seat of MJ 4087. He then left the car park.
At about 1755 hours the defendant returned to the car park. He boarded RB 3521. Customs officers went forward to reveal their identities and intercept the defendant for a search. Inside the right-front pocket of the shorts the defendant was wearing, one black cotton bag containing two ziplock bags which contained 24 bags of suspected drugs were found. An ignition key and a key ring with three keys were found inside the left-front pocket of the shorts. The defendant was arrested and cautioned. He admitted that the 24 contained “K tsai”, ketamine, for distribution and the three keys on the key ring were the keys for his home, a flat in Shing Tin House, Pak Tin Estate.
At about 1800 hours a search was made of the inside of RB 3521 and inside the compartment between the driver and front passenger seats, an ignition key of MJ 4087, a monthly parking pass and a receipt of the monthly parking pass for MJ 4087 were found. MJ 4087 was searched and four plastic bags of suspected dangerous drugs and a number of plastic bags were found behind the rear passenger seat. The defendant was cautioned, but he did not say anything.
At about 1900 hours Customs officers arrived at the entrance to the defendant’s home. When they were about to open the main gate, the defendant’s elder brother opened the door. After the officers revealed their identities, they were allowed to enter the flat. They conducted a search in the defendant’s bedroom where they found a nylon bag, a plastic bag containing dangerous drugs, 2,180 tablets of dangerous drugs and an electronic scale. Under caution, the defendant admitted that the drugs were “K tai”, ketamine, and belonged to him. The packing paraphernalia, ziplock bags, and electronic scale belonged to him.
The suspected drugs seized were examined by the Government Chemist and found to consist of the following:
(a) recovered from the defendant’s possession, 168.17 grammes of a solid containing 128.84 grammes of ketamine; and inside MJ 4087, 980 grammes of a solid containing 710 grammes of ketamine: this became count 1;
(b) recovered inside the defendant’s bedroom, 250 grammes of solid containing 190 grammes of ketamine and 2,180 tablets containing 0.67 grammes of nimetazepan: this became count 2.
The drugs had the following street or retail value: the ketamine, being 168.17, plus 980, plus 250 grammes, totalling 1,398.17 grammes times $131 per gramme and the sum total comes to $183,160.27. Nimetazepan, 2,180 tablets times $57 per tablet and the sum total is $124,260. The global total is $307,420.27.
Before me, the defendant has pleaded guilty and admitted the facts I state above. According to the sentencing guidelines for ketamine, in SJ v Hii Siew Cheng [2008] 3 HKC 323, for trafficking between 50 to 300 grammes the sentence should be 6 to 9 years’ imprisonment. This is relevant to the ketamine under count 2. For trafficking in over 1,000 grammes of ketamine, this quantity is relevant to count 1, the sentence should be 14 years’ imprisonment upwards. I take the quantities of the ketamine in both counts together, which came to 1,398.17 grammes. For that I consider a total starting point for this drug should properly be 15 years.
Regarding the nimetazepam in count 2, the large number of tablets consists of only 0.67 grammes of this drug. There is, however, no sentencing guideline, but there is a case of R v Orton HCMA 225/1997 which indicates that a sentence appropriate for diazepam, which Mr Polson for the prosecution informs me to be a drug similar to nimetazepam, should be about two-thirds of that for the same quantity of methaqualone. For over 2,000 tablets of methaqualone the sentence should be 6 to 12 months imprisonment (see Cross and Cheung, Sentencing in Hong Kong, 6th Edition, page 683, paragraph (21) (b) and (c). I consider a jail term of 6 months should be an appropriate starting point for this drug if dealt with separately.
The defendant has written a letter to the court to show his remorse and his wish to turn a new leaf. He also submits letters from a pastor of a Christian association and a social worker providing counselling to him, both seeking leniency for him. I believe that the defendant is repentant and remorseful for what he has done and that he worries about his wife and young child. However, drug trafficking is a very serious offence and sentencing is almost wholly dependent on established guidelines and authorities. Save in rare circumstances, personal situations seldom matter and very little discretion is left to the sentencer.
All in all, for count 1, I use 14 years’ imprisonment as the starting point. For count 2, I adopt 8 years as the starting point for both kinds of drugs, 18 months of which should run consecutively to the sentence on count 1. The total starting point is therefore 15 years 6 months. The defendant is entitled to one-third discount for his guilty plea, which reduces the global sentence to 10 years and 4 months.
To put it another way, for the 1st count I pass a sentence of 9 years and 4 months and for the second count I pass a sentence of 5 years and 4 months, but I order only one year of which shall run consecutively to the sentence on the 1st count.
Altogether the defendant is to go to jail for 10 years and 4 months.