CRIMINAL CASE NO. 420 OF 2011
COURT: You were convicted upon your guilty plea of one count of trafficking in a dangerous drug.
In sentencing I have taken into consideration the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drug involved, your background, and mitigation put forward on your behalf.
The facts of the case you have admitted may be summarised as follows. In the evening on 4 July 2011, a team of police officers entered a public housing unit occupied by you. At that time you were discarding a bag out of the window in the bedroom, disregarding warning from an officer not to do so. On the bed you were standing there were two transparent plastic bags. Inside both bags was powder containing ketamine. On the floor close to the bed were 17 resealable plastic bags contained in a plastic bag. Inside each of these 17 bags was also powder containing ketamine. Inside the unit there were an electronic scale and a transparent plastic bag containing a number of resealable transparent plastic bags.
Part of the content of the bag you discarded from the unit landed on the 1st floor podium and part of it landed on the ground at the street. They were also powder containing ketamine.
In total, there was in your possession 3,536.33 grammes of a powder containing 2,970.95 grammes of ketamine, and you were trafficking in this quantity of dangerous drug. The estimated retail price of this quantity of ketamine was estimated to be about $370,000.
I was told that you are now 29 years of age. Your parents passed away at your childhood and you were brought up by your grandmother. Your grandmother is of advanced age and not enjoying good health. You received education up to Form 5 level and then began to work. You have worked as a leaflet distributor, fast food shop worker, and hair salon shampoo boy. Your counsel told me that at the time of your arrest, you were a partner of a hairdressing salon.
You are not a first-time offender. On three previous occasions you were convicted. The convictions included two offences of assaulting and one offence of criminal damage. In addition, in 2002 you were convicted of two charges of trafficking in dangerous drugs, for which you were sentenced to a total of 3 years and 3 months’ imprisonment. Your counsel told me that these two offences took place on the same occasion. He urged me to note that you have made an attempt to turn over a new leaf after your release from prison, and started the business of the hairdressing salon.
As regards the circumstances in which you came to commit the present offence, your counsel told the court this. In the evening on which you were arrested, a partner of your salon, Mr Lee, and his younger brother, whom you were also well acquainted with, came to your flat. They handed over to you a rucksack and asked you to take care of it for a while, since they did not want to carry it on the street. You had the idea that certain illegal items were inside the rucksack, but still agreed to keep it on behalf of the Lee brothers. After the Lee brothers had left, you checked the contents of the rucksack and came to know that it contained ketamine. You tried to contact the Lee brothers, but to no avail.
Your counsel confirmed that in such circumstances, and having full knowledge that you were asked to have custody of a dangerous drug, you continued to have control of it with a view to restore it to the Lee brothers with an expectation of certain reward.
Before the Lee brothers returned, police officers arrived. Out of panic, you discarded some of the dangerous drug outside the window.
I was told that a fingerprint of Mr Lee, your business partner, was lifted on a scale which I was told was put originally inside the rucksack.
Your counsel stressed that you are now remorseful, and submitted to me a letter written by yourself. He told me you were planning to get married with your girlfriend last year, but the plan was interrupted because of the present matter. You had been looking after your aged grandmother, and this role is now taken over by your girlfriend.
According to the guideline in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for a conviction after trial of trafficking in over 1 kilogramme of ketamine, the imprisonment term should be 14 years upwards. No specific tariff has been set for trafficking in ketamine for a quantity of the present quantity.
In HKSAR v Leung Wai Man CACC24/2007, the Court of Appeal stressed that a sentencing court should avoid using arithmetic progression in sentencing, and instead should exercise its discretion according to the circumstances of the case. My attention is drawn by Mr Grounds, learned counsel for the prosecution, to the case of HKSAR v Ng Hon Keung CACC211/2011 and certain sentencing decisions in the Court of First Instance.
The Court of Appeal did not mean to set down tariff in that case, and the Court of First Instance decisions do not bind me, but I am grateful for the assistance.
The version which your counsel told the court of the circumstances in which you committed the present offence are dubious, but it is not so inconsistent with the facts admitted that it should not be accepted for the purpose of sentencing. On the basis of what your counsel informed the court, you were helping others to keep safe custody of a large quantity of dangerous drug with the understanding that it was to minimise the risk arising from carrying it on the street, and you did it with an expectation of reward.
In all the circumstances, I adopt a starting point of 16½ years. In adopting this starting point, I have taken into account your previous conviction of the same offence, which in my judgment attracts an enhancement in sentence by 6 months.
You pleaded guilty and are entitled to a one-third discount.
Having considered the whole circumstances and mitigation put forward on your behalf, in my judgment, this is the extent of discount you are entitled to.
I therefore sentence you to an imprisonment term of 11 years.