The facts disclosed that on 23 May last year, 2014, a team of police officers who were conducting an anti-narcotics operation at a unit on the 10th floor of Majestic Apartments in King’s Road.
The police learned that the defendant was then living at Room D of the flat and the defendant was not home at the time. When the defendant returned home later, he was intercepted by the police and found to have cash, $11,800 inside his left trousers’ pocket and four keys inside the right trousers’ pocket. The police also found a bag of suspected dangerous drugs concealed in the defendant’s underpants. The defendant was arrested and under caution the defendant claimed that the drug was ketamine and it was for his own consumption (that is Count 1).
Using the keys found on the defendant, the police entered the defendant’s home and conducted a search. Three bags of suspected ketamine were found under the mattress, together with one set of electronic scales and 52 plastic bags. Another three packets of suspected ketamine were found under the bed, one of the packets had been opened. The police arrested the defendant and under caution the defendant indicated he had nothing to say (that is Count 2).
A video recorded interview under caution was conducted later. The defendant said he had purchased the drugs from a friend but without disclosing any further details. Subsequent analysis confirmed that the substance found by the police were:
(a) on the defendant’s person, 10.85 grammes of a powder containing 8.86 grammes of ketamine; and
(b) inside the defendant’s home, a total of 685.61 grammes of a powder containing 547.30 grammes of ketamine.
The street value of the dangerous drugs was estimated at $84,968.
The defendant admitted possession of the ketamine referred to in Count 1 for his own consumption and he trafficked in the ketamine referred to in Count 2.
The Defendant’s Background
The defendant is a 19 year old young man who had no previous criminal conviction. He was born in the mainland and came to Hong Kong in 2009.
According to the mitigation advanced by his counsel, Mr Hotten, the defendant became heavily addicted to ketamine and he fed his own addiction by selling the dangerous drug to others, thus committing the present offences.
At one stage it was advanced on the defendant’s behalf that some 20 to 30 per cent of the ketamine found inside the premises was for his own use. However, after consideration and advice from his counsel the defendant decided not to pursue this claim.
The defendant himself, his parents and his older brother all wrote to me. The defendant expressed his deep remorse and asked for a chance. The defendant’s family members all appreciated the defendant must face the consequences of his deed, nevertheless they all asked for leniency on his behalf, saying that deep down the defendant was not a bad person and he could be considered a filial son.
Sentence
I will deal with the more serious offence of trafficking in a dangerous drug first.
Trafficking in a dangerous drug is a serious offence. A person convicted on indictment is liable to a fine of $5 million and to life imprisonment.
The total amount of ketamine here is 547.30 grammes. In the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal set down guidelines for the trafficking of ketamine. Trafficking 300 to 600 grammes of ketamine, the appropriate starting point is within the range of 9 to 12 years. I have to consider the what the appropriate starting point for this offence is.
Having considered all the circumstances of this case and the defendant’s relatively young age, I am of the view that a starting point of 9 and a half years is appropriate. This starting point is reached on the basis of a clear record which this defendant enjoyed until the conviction of these two offences. There are no other aggravating factors to enhance the starting point, so I will adopt the same.
The defendant has pleaded guilty to the charges at the earliest available opportunity and is entitled to the full one-third discount. The sentence for trafficking in a dangerous drug, that is Count 2, is therefore 6 years and 4 months’ imprisonment.
For the possession of 8.86 grammes of ketamine, that is the 1st Count, I am of the view that a starting point of 12 months is appropriate.
After giving the defendant, again, the usual one-third discount, the sentence for the possession of a dangerous drug is one of 8 months.
I now have to consider the totality and decide what the appropriate total sentence is. Bearing in mind that had the defendant been convicted of trafficking in a dangerous drug of the 8.86 grammes of ketamine for Count 1, that amount of ketamine would have been added on to the amount 547.30 grammes in Count 2 to reach an appropriate sentence and the resultant sentence would not have changed, as the amount of 8.86 grammes would not have made any real difference to an already large amount of over 500 grammes. In other words, had the defendant been convicted of trafficking in a dangerous drug of both charges, the sentences would have been ordered to run concurrently. Therefore, for that reason, I will order the two sentences to run concurrently.
So the Count 1 is 8 months’ imprisonment. The 2nd Count, 6 years and 4 months’ imprisonment. Both sentences to run concurrently, making a total of 6 years and 4 months’ imprisonment.