CRIMINAL CASE NO. 282 OF 2009
COURT: On 4 September of this year the defendant pleaded guilty at the Eastern Magistrates’ Court to a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. On that day a summary of facts was read in open court and accepted by the defendant as being accurate. As a consequence, he was committed to this court for sentence. Today before me he has confirmed his earlier plea of guilty, and again acknowledged the accuracy of the summary of facts.
The particulars of the charge allege that, on 27 March of this year, inside Lot 671, DD 92, Yin Kong Tsuen, Sheung Shui in the New Territories, the defendant trafficked in 212.26 grammes of a powder containing 168.98 grammes of ketamine, 21 tablets containing 0.20 grammes of nimetazepam, 2 tablets containing 4 milligrammes of diazepam, in addition to that traces of ketamine and methamphetamine.
The summary of facts accepted by the defendant were succinct and to the point. It reveals that on the afternoon of 27 March 2009 police officers observed the defendant coming out of the premises described in the charge. Upon seeing the police officers he went back inside the locked the door. The police officers forced their way into the room, where they found the defendant and the drugs which are described in the charge. The ketamine was packaged in resealable plastic bags. There were also found two electronic scales, as well as a quantity of unused resealable plastic bags. The defendant admitted, under caution, that the drugs and the packaging equipment were his and that he sold the ketamine to support himself and his two children. It was an admitted fact that the retail value of the ketamine was in excess of $25,000.
The defendant is aged 25. He is divorced and a father of two young boys. Up until his arrest I am told that he was responsible for caring for them.
Sometime in 2006, or thereabouts, his marriage failed, and he then became addicted to drugs. It was after this, it appears, that he became involved in the trafficking of drugs. As I have indicated, he has no prior convictions. Nevertheless, for an offence of this nature the Court of Appeal has said on a number of occasions a clear record does not amount to significant mitigation. The only significant mitigation that can be properly advanced on behalf of the defendant is his timeous plea of guilty to this charge. Notwithstanding the personal circumstances which led to his becoming involved in the use and abuse, and subsequently trafficking in drugs, nevertheless these do not assist him insofar as the proper approach to sentencing.
The correct starting point for sentence after trial. Given the very significant quantity of ketamine and taking into account the fact that there were, albeit in very small quantities, other drugs specified in the charge, a starting point of 7 years and 6 months is justified. In reaching this conclusion I have taken into account the guidelines provided for in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD at 1, and the observations of the Court of Appeal in HKSAR v Yip Wai Yin [2004] 3HKC at 367.
From the starting point of 7 years and 6 months, the defendant is entitled to a full one-third discount to reflect, as I have indicated, his timeous plea of guilty. This would result in a sentence of 5 years’ imprisonment. There is nothing in the circumstances of the commission of the offence, or indeed the circumstances of the defendant, that would justify a further reduction from that starting point.
In the circumstances, I therefore impose upon the defendant a sentence of 5 years’ imprisonment.