Background and the Facts
The defendant faced four counts of trafficking in a dangerous drug. He pleaded guilty before me to the 2nd and the 4th counts but pleaded not guilty to the 1st and 3rd counts. Upon the application of the prosecution, these latter counts were ordered to be left on the court file and not to be proceeded with without the leave of the court.
Briefly, the defendant was stopped in the night of 4 July 2011 when he was leaving the Fairwood Fast Food Restaurant at Fanling Town Centre where he worked. Upon search, two keys and other items were found on the defendant’s person. The defendant was then taken to the locker room of the restaurant. In the presence of the assistant manager of the restaurant the police used one of the keys seized from the defendant to open locker number 9. As a result, three packets of ketamine and a spoon containing traces of ketamine were found. The ketamine was later confirmed to be of a total weight of 122.5 grammes. This is the subject matter of the 2nd count.
Under caution, the defendant claimed that the ketamine was for his own consumption and for sale. During a subsequent video-recorded interview the defendant further admitted that he would sell the ketamine at HK$70 per gramme, making a profit of HK$20 per gramme.
The 4th count relates to the drug found in locker number 8 on 8 July 2011 after the defendant had been arrested. On that day the defendant’s girlfriend went to the Fairwood Restaurant and sought to retrieve from the locker room items said to belong to the defendant. She was asked to wait. Meanwhile, the police were notified and they arrived at the restaurant, then, in the presence of the manageress of the restaurant and the defendant’s girlfriend, locker number 8 was broken open. As a result, the defendant’s medical card, his medical appointment book and bank passbook together with some packing paraphernalia and the drug particularised, that is a total of 303.79 grammes of ketamine, were found. The defendant now admits that he possessed the drug in locker number 8 for the purpose of trafficking.
The estimated retail price of the drugs particularised in the 2nd and the 4th counts was about HK$55,800 in July 2011.
Mitigation
The defendant is aged 23 and is single. He was educated up to Form 3 level. After quitting school, the defendant worked as a cook until his arrest. The defendant has a clear record.
In mitigation it was said that the defendant was tempted into taking ketamine at the age of 15 or 16 and he had been asked by the drug supplier to commit the present offences.
Mr Yeung for the defendant told the court that the defendant came from a working class family and he was of good nature. Despite the defendant’s misdeeds, his family remains very supportive.
Letters written by the defendant, his family members and his girlfriend were provided to the court. In gist, all of them described the defendant as a caring person and expressed shock and disbelief in knowing that he had committed the present offences.
In the letter written by the defendant himself he expressed that he now realises his wrong and is determined to turn over a new leaf.
The Sentence
In Secretary for Justice v Hii Siew Cheng and Another [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking 300 to 600 grammes of ketamine a term of imprisonment of 9 to 12 years is called for.
In this case the subject matter of the 2nd and the 4th counts could properly be regarded as having arisen from the same set of facts. I would therefore adopt an overall starting point by adding the quantities of the drug together.
Having considered the facts of this case, that a total amount of 426.34 grammes of ketamine is involved, and the defendant’s background, I am of the view that an overall starting point of 9 years and 9 months is appropriate. This is what I would adopt as the starting point for both counts.
The defendant pleaded guilty and he would receive a one-third reduction in sentence. However, as has been repeatedly pointed out by the Court of Appeal, the defendant’s clear record is not itself a mitigating factor when it comes to serious offences like trafficking in a dangerous drug. 9 years and 9 months reduced by one-third is 6½ years’ imprisonment.
The defendant is therefore to serve a term of 6½ years for each of Counts 2 and 4.
Applying the totality principle, I order that both terms are to be served wholly concurrently, thus resulting in an overall term of 6½ years.