CRIMINAL CASE NO. 463 OF 2011
COURT: The defendant has pleaded guilty to trafficking in a dangerous drug, namely 960 grammes of a powder containing 770 grammes of ketamine.
On 1 June 2011, the police carried out an anti-dangerous drug operation in Tseng Tau Tsuen, Wan Chau, Yuen Long. At about 6.55 pm, they saw a male, carrying a black plastic bag, walking along Long Ping Road into Tseng Tau Tsuen, Wan Chau. He then proceeded into the Fuk Hi Car Park.
At about 7 pm, a silver-coloured seven-seater private car with registration number AT 629 arrived at the Fuk Hi Car Park and was driven next to the male. The male pedestrian was seen putting his black plastic bag toward the front passenger seat. Afterwards, the male pedestrian left the car park and the vehicle was driven away.
After the vehicle left the car park, it was intercepted by police at Fuk Hi Street near Long Ping Road, Yuen Long. There were a male driver and a front-seat passenger who was later known to be the defendant. A personal search of both the driver and the defendant proved negative.
However, underneath the defendant’s seat, there was a black plastic bag containing a red bag. Inside the red bag, there were four tinfoil bags purporting to be bags of Chinese tea but, when the tinfoil bags were opened, they were found to contain white crystals suspected to be ketamine.
Police thereupon arrested the defendant who, under caution, said: “Sir, the ketamine inside the teabags all belong to me”.
The suspected dangerous drugs were later examined by a Government Chemist who confirmed that there was a total of 960 grammes of a powder containing 770 grammes of ketamine.
In a video-recorded interview, the defendant stated that, on the previous night, he had met a male called ‘Go Lo’ in a wine bar and Go Lo had asked him to collect some bags of ketamine in Fuk Hi Car Park and then to deliver the dangerous drug in Kowloon. For this, he would be paid $3,000. The defendant accepted the job.
He further said that the driver in the vehicle was his friend who knew nothing about the ketamine. He asked his friend to drive him to the car park where a person passed him the black plastic bag with the ketamine inside. The ketamine had an estimated retail value at the time of its seizure of $106,560 Hong Kong currency.
In different cases, the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug-trafficking offence. The first is that, for sentencing purposes, ketamine is to be treated as the same as Ecstasy.
Secondly, the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained. Thus, the quantity for which this defendant must be sentenced is 770 grammes.
Thirdly, the sentencing ranges for trafficking in ketamine are to be taken from the guidelines laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. There, the Court of Appeal said that for amounts of between 600 and 1,000 grammes, the sentencing range should be 12 to 14 years’ imprisonment.
The existence of these sentencing tariffs leaves little room for mitigation but, notwithstanding this, the sentencing tariffs play a very important role for two main reasons. Firstly, they lead to consistency in sentencing and avoid distinctions being drawn between drug traffickers based upon the nature of their trafficking, whether they be couriers, storekeepers or some other role. Whatever the role played by the trafficker, the sentence will generally be the same (see HKSAR v Manalo [2001] 1 HKLRD 557 at 560G to H). Secondly, they help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits (see Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20).
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines and that whilst a sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands (see the Chan Ka Wah case at page 908, paragraph 22). No such exceptional circumstances are present in this case and so I am bound to apply the sentencing band set out in Hii Siew Cheng.
Nevertheless, I still have some sentencing discretion. Although it has been clearly stated by the Court of Appeal that a clear record and youth, other than extreme youth, should not have any bearing on sentence, I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture contained, the narcotic, the degree of involvement of the offender and any previous involvement he may have had in drug offences (see HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chong Heung Sang [2010] 3 HKC 88).
The defendant is 31 years old with only primary 4 education. Before his arrest, he worked as a transportation worker.
He has previous convictions for theft and possession of dangerous drugs. His first experience with the criminal law occurred when he was only 14 and involved two counts of theft for which he was placed on probation and whose order he subsequently breached. Seven years later, he was convicted of his first possession of dangerous drug offence for which he was fined and, in December 2002, of his second possession of dangerous drug offence for which he was sent to DATC. In 2005, he was convicted of theft and was given a two-month suspended sentence.
In the present case, the quantity of drugs is within the 12 to 14 years’ imprisonment band as it covers trafficking in 770 grammes. I have some discretion as to where I should start within that band.
I accept what has been put to me by the defendant’s counsel, that the defendant comes from a broken home and that most of his problems with the law commenced as a result of the difficulties he experienced when his parents went through a break-up of their marriage and he was effectively being reared by his grandmother.
I accept that, relative to the present count to which he has pleaded guilty, his previous convictions are not serious. I also accept that they were due to difficulties he was then facing in his economic situation. I also accept that is the same reason for him accepting the work which led to him being charged in the present offence.
His counsel has said that he is very remorseful and that his mother feels some responsibility for his current predicament. He wishes to put this behind him and get on with his life, and she wishes an opportunity for the son to rejoin the family and for her to play a greater role in his life.
I am persuaded that he is in fact genuinely remorseful and that I should, within the constraints binding me, extend to him a certain degree of leniency. I therefore adopt 12 years as my starting point. I discount that sentence by one-third to allow for the plea of guilty. The resulting sentence is 8 years.
As his counsel accepts, there is nothing further advanced in mitigation to justify any greater discount of the sentence and so I sentence the defendant to 8 years’ imprisonment.
Mr Lok, as your counsel has pointed out to you, I am limited in the leniency that I can extend by the sentencing guidelines laid down by the Court of Appeal which I have explained to you in the course of my reasons for sentence. Normally, I would not extend leniency to a person with a criminal record such as yours but I accept that you have not had a happy life and you have not, so far, enjoyed the benefits which many other people in Hong Kong might enjoy. Life does not treat everyone equally and life sometimes seems unfair.
It seems to me that you recognise you have made a mistake and notwithstanding the problems that life has thrown at you, you wish a chance for a fresh start. I am pleased that your mother is here in court today to observe these proceedings and to show you support. I have given you the only leniency that I can but, as your counsel will have explained to you, the Commissioner for Correctional Services does have the power to grant you further remission should you be of good behaviour whilst in prison.
With your limited education, you are likely to continue to find economic difficulties challenging you on your release from prison. If prison allows it, I would urge you to examine what opportunities might be available to you to acquire some skills or qualification whilst serving your sentence. I would also urge you to review your life and decide what it is you would like to do when you leave prison, especially thinking in terms of what you can do with the support of your family.
You must be careful, on your release from prison, not to allow yourself to be tempted by what might appear to be an easy opportunity for quick money that is offered by drug trafficking. What you do with your life in the next eight years is ultimately a matter for you and I leave the matter in your hands. But please remember, there are people who care about you and that is why your mother is here in court today. You may sit down.