CRIMINAL CASE NO. 71 OF 2011
COURT: This is becoming a depressingly familiar tale of a young man hooked on ketamine being used as a courier for the trafficking of that drug by
more unscrupulous operators. This is the second case that I have dealt with in two days involving a 19 year old boy who is hooked on ketamine involved in trafficking.
I have no reason to doubt what you told the police as to why you were doing what you were doing. Nor do I have any doubt that you were yourself dependent on the drug.
That said, it is a very serious offence to traffic in 250 grammes of ketamine. The applicable tariff band for such a quantity is between 6 and 9 years’ imprisonment, with this amount falling towards the upper end of that scale. But it is also serious because you were effectively bringing the drug from the mainland into Hong Kong.
The case of Abdallah Anwar Abbas, Cr App No 304 of 2008, makes it clear that any starting point should be enhanced if there are any aggravating features in the trafficking. One of those aggravating features is the presence on the particular facts of an international element. And an international element in the trafficking of dangerous drugs includes, according to paragraph 30 of the judgment, trafficking across the border with the mainland.
I appreciate that Abbas was concerned with significantly larger amounts of heroin and the suggested enhancement at paragraph 43 of that case would not be appropriate for the quantity of ketamine with which I am dealing, but the principle of enhancement should still be applicable. I will come back to this matter in a moment.
If I were to apply a strictly mathematical starting point in accordance with the relevant tariff band, I would adopt a starting point in this case of about 8½ years’ imprisonment, subject to any enhancement of that sentence.
I agree with your counsel, however, that this was not a very sophisticated example of trafficking and you were easy prey for more unscrupulous operators who preyed on your own addiction.
It would seem that at the time you were arrested you must have been, as your counsel has told me, under the influence of something because according to the Summary of Facts you attracted the attention of the police because you looked pale and dull and were staggering along the road at 9.47 pm.
In all the circumstances I am going to adopt a starting point of 8 years’ imprisonment, subject to the question of enhancement, which I will address shortly.
In adopting that slightly lower starting point, I also factor into the equation the fact that you have a clear record. Although that is conventionally seen as a mitigating factor, it has helped me to decide the type of trafficking with which I am dealing and the type of trafficker you are, which is consistent with the sort of person depicted by your counsel and in the letters which I have read.
The next question is whether, and if so to what extent that starting point should be enhanced. Although there does not appear to be any authority on the point I raised during mitigation, it might seem slightly artificial to talk in terms of an international element when bringing drugs across from the mainland side of Sha Tau Kok to the Hong Kong side of the same town by someone who is entitled by permit to move freely around that town.
On the other hand, this is not the first case I have handled involving drugs in Sha Tau Kok being brought across the border from one side of town to the other. And it is important that people who have this privileged permit are not made use of as convenient cogs in the trafficking wheel.
It is through people like you that drugs can enter Hong Kong so effortlessly with particular difficulties in detection for the police. Consequently, although Mr Chiu appeared to concede that this is not a clear cut case of importation in the Abbas sense, it is, in my view, nevertheless a case of importation and deserving of enhancement for the reasons I have given. Were it not so, Sha Tau Kok would quickly become an entrepot for the trafficking in drugs with people like you used to effect it with, as I say, particular difficulties for the police in detection.
Bearing all the circumstances in mind, the enhancement I consider appropriate for this quantity of drugs imported in this situation is 3 months’ imprisonment; making an overall starting point on the facts of this case of 8 years and 3 months, or 99 months’ imprisonment.
You are a young man from a hard-working family. I am impressed by the letters written on your behalf which paint a picture of a weak individual who has been caught up in something you seem powerless to resist, even though you know what you ought to do and what you want to do, such as attending anti-drug addiction courses.
You have a clear record, but as I have explained, I have borne that in mind already in assessing the type of trafficker and trafficking with which I am dealing when assessing a starting point. However, you are entitled to a full one-third discount for your plea of guilty, notwithstanding that you were effectively caught red-handed.
Accordingly, the sentence which I pass upon you is one of 66 months or 5 years and 6 months’ imprisonment.