CRIMINAL CASE NO. 182 OF 2011
COURT: On 29 May of this year the defendant pleaded guilty at the Eastern Magistrates' Court to one charge of trafficking in dangerous drugs. The particulars of that charge allege that he did, on 7 November 2010, at Room 3307, Block B, Hong Cheung House, Cheung Hong Estate, in Tsing Yi, traffic in 490 grammes of a mixture containing 370 grammes of ketamine.
On that day he was committed, pursuant to section 81B of the Magistrates' Court Ordinance, Cap. 227, to this court for sentence. Prior to that, a Summary of Facts was read in open court by the prosecutor and admitted by the defendant. Today he has confirmed his plea of guilty and the accuracy of that Summary of Facts.
The Summary of Facts reveals the following: police officers, apparently alerted to the defendant’s involvement in trafficking in dangerous drugs, were, on 7 November of last year, waiting for him in the vicinity of Room 3307, the property referred to in the charge. They had with them a search warrant. When the defendant approached those premises he was intercepted.
Together with the defendant, the police officers entered the flat where the defendant’s girlfriend and son were inside. The defendant told the police officers that there was dangerous drugs in the bedside cabinet inside a metal box. With the assistance of the defendant, that metal box was opened by one of the police officers. Inside the metal box the police officer found one packet containing 240 grammes of a powder containing 190 grammes of ketamine, one packet containing 250 grammes of a powder containing 180 grammes of ketamine; in total, 370 grammes of ketamine. In addition, there was inside the metal box paraphernalia for drug packaging, including resealable transparent plastic bags and an electronic scale.
Subsequent to being arrested and cautioned for the offence of trafficking in dangerous drugs, the defendant told the police officers that the dangerous drugs had nothing to do with him, had nothing to do with his son and the lady who was then present. He also told the police officers that he was planning to sell the dangerous drugs because he was unemployed.
In the Admitted Facts it is stated that the quantity of dangerous drugs involved is valued in excess of $56,000.
The defendant is 46 years of age. He has an extensive criminal record, commencing as early as 1976 when he was 11 years of age. Those convictions cross the whole raft of offences, including theft, possession of dangerous drugs, trafficking in dangerous drugs and the like. It is, however, pointed out by Mr Melwaney on behalf of the prosecution that this is the first occasion that the defendant has appeared in this court. He has on previous occasions been sentenced to terms of imprisonment however. The last occasion was in November of 2007.
Now, on his behalf, Ms Liza Yip has told me something of his background. His son is 18 years of age and the son is of his first marriage. His second wife who was not present in Hong Kong at the time of this offence was, however, five months’ pregnant at the time and living in the Mainland. Since his arrest he has lost all contact with her and presumably with the child which will have now been delivered.
Ms Yip tells me that prior to the commission of these offences and subsequent to his last release from prison, he had taken up full-time employment as a cross-border truck driver and had purchased his own vehicle for that purpose. He, however, got into difficult financial circumstances and it was because of this that he was tempted to engage in trafficking in dangerous drugs.
Ms Yip, quite correctly and properly, acknowledges that none of the personal circumstances of the defendant are so exceptional as to warrant a departure from the guidelines for sentencing which are provided to sentencers who deal with those who are trafficking in this particular dangerous drug, namely, ketamine.
The Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD has provided guidance for sentencing. That guidance is based upon the quantity of drugs that are being trafficked. In the instant case, the recommended parameters for sentencing is in the bracket of 9 to 12 years’ imprisonment after trial. The defendant trafficked in 370 grammes of ketamine. In those circumstances I am satisfied that the starting point for sentence must be in excess of 9 years. Based on the quantity of drugs involved, I believe that a starting point for sentence, after trial, of 9 years and 8 months’ imprisonment is appropriate.
The defendant is and will receive a full one-third discount to reflect his timeous plea of guilty. There are no other circumstances in the defendant’s background or in the circumstances of the commission of the offence which would justify an increase in the quantum of the discount. Nor are there any circumstances which would justify a departure from the appropriate starting point.
In those circumstances, the appropriate sentence is one of 6 years and 5 months’ imprisonment and that is the sentence that I impose.