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HCCC382/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 382 OF 2009
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| Date: |
13 January 2010 at 9.38 am |
| Present: |
Mr P J Power, SPP, of the Department of Justice, for HKSAR
Mr Yuen Kwok-wah, Bernard, assigned by the Director of Legal Aid, for the Accused |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant is charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
On 20 November of this year, at the Eastern Magistrates Court, he pleaded guilty to this charge and admitted the Summary of Facts submitted in support. The magistrate, Mr Mierczak, committed him to this court for sentence. Today before me, he has confirmed his plea of guilty and the accuracy of the Summary of Facts.
The particulars of the charge admitted by the defendant were that, at the Lo Wu Control Point on 17 June of 2009, he trafficked in a dangerous drug, namely 3,113.42 grammes of a powder containing 2,569.50 grammes of ketamine. This quantity of ketamine has an estimated retail value in excess of $376,000.
The Summary of Facts revealed that on the morning of 17 June 2009, the defendant departed Hong Kong from the Lo Wu Control Point at 8.20 am. At 4.20 pm on the same day, he returned to Hong Kong, again via the Lo Wu Checkpoint. He was selected to have his luggage examined. An X-ray of his bag showed suspicious images. Those suspicions which were generated proved to be correct. Inside the defendant’s bag were a number of packages wrapped in black plastic. Inside those packages were the drugs that are particularised in the charge.
Initially, the defendant denied any knowledge of the drugs but no longer maintains that position. He accepts that he was trafficking in that quantity of ketamine on that day.
The defendant is 49 years of age and he has an unenviable criminal record. He was, at the time of his arrest, undoubtedly addicted to drugs. In 1977, at the age of 17, he was sentenced to 5½ years’ imprisonment for offences of robbery and wounding. In 1994, aged 34, he was sentenced to 7 years’ imprisonment for trafficking in dangerous drugs. Scattered throughout his criminal record are a number of convictions for possession of dangerous drugs.
I am told on his behalf, by Mr Yuen, that he is educated only to primary 3 level. He is married and divorced but has formed a relationship with a lady in China. He has pleaded guilty at the earliest opportunity and, at the time of the commission of the offence, he succumbed to the temptation to traffic in the drugs after having been offered the sum of $3,000 to bring them to Hong Kong.
The defendant is entitled and will get full discount for his plea of guilty. There are, however, no other factors in his personal circumstances or the commission of the offence which would justify an increase in that discount.
This is a vast quantity of a very dangerous drug. The Court of Appeal has set down guidelines for sentencing for ketamine in The Secretary for Justice v Hii Siew Cheng. In the course of its judgment, that court emphasised that ketamine is potentially highly dangerous, addictive and targeted as a drug at young people. The guidelines for sentencing are in bands. The uppermost band, where the quantity of ketamine is 1 kilogram or more, recommends a starting point for sentence, after trial, of in excess of 14 years.
Given the quantity of ketamine in the instant case, the question is just how far in excess of 14 years is appropriate. Some assistance may be gained from the approach taken in HKSAR v Abdallah, where the Court of Appeal revised the guidelines for trafficking in heroin to provide assistance to sentences when the quantity of drugs trafficked exceeded the parameters of the Lau Tak Ming guidelines.
In Abdallah, the Court of Appeal considered that for trafficking in double the amount of the cut-off point in Lau Tak Ming, that is 600 grammes, an additional 3 years to the 20 year recommended sentence was appropriate. In the present case, there must be an upward adjustment to reflect the fact that the quantity of ketamine is 2.5 kilograms, that is, 1.5 kilograms in excess of the upper band in the guidelines.
The approach adopted by the Court of Appeal in Abdallah demonstrates there is a flattening in the sentencing curve as the quantities of the dangerous drug trafficked increase. I consider that a similar approach is appropriate in the instant case.
In the circumstances, I consider that an amount of 3½ years should be added to the starting point of 14 years to reflect the quantity of ketamine. That means that a starting point for sentence after trial for this amount of ketamine of 17 years and 6 months would be appropriate. That is the starting point which I adopt.
Allowing a full one-third discount from that starting point, the appropriate sentence I have calculated is a sentence of 11 years and 8 months' imprisonment. In those circumstances, the sentence I impose is one of 11 years and 8 months' imprisonment.
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