CRIMINAL CASE NO. 336 OF 2011
COURT: I have to deal with you on a committal for sentence following your plea of guilty in the Magistracy for one charge of trafficking in a dangerous drug.
The dangerous drug in question was ketamine. You carried 238 grammes of it, but the active ingredient was 190 grammes.
It will have been explained to you that these courts follow guidelines when it comes to sentencing people for trafficking in dangerous drugs, and at 190 grammes, you fall in the category that runs by weight from 50 to 300 grammes, attracting a starting point after trial of 6 to 9 years’ imprisonment. The guidelines are not straitjackets; they do allow some room for manoeuvre, though obviously their design is to promote consistency, which is important in this branch of sentencing.
I shall accept the mitigation that is advanced on your behalf by Mr Lam. He did not overstate it, but the combination of his submissions and the various written documents I have read, letters and the like from social workers, people who knew you at school and your family, do mitigate the offence.
It is not always easy to judge on a plea of guilty, with the limited material that a judge receives, what sort of person he is dealing with. Sometimes we see someone who one might describe as plain bad. Sometimes we just do not know. Sometimes we see what we might describe as a fool. You fit the last category. I cannot guarantee that judgment is right, but that is how it strikes me. From the material available to me, it strikes me that you were a decent lad. There were troubles in the family, and for only $300 you risked your liberty and the loss of it for a long time.
You were only 17 at the time, so I am minded to be merciful. The most you could ever have hoped for, and your counsel has not asked for this, and I am not minded to give it, would have been training centre. You would have spent your time probably still at Pik Uk in the training centre there, and you would have been exposed to the educational opportunities that exist for those sentenced to training centre.
If I had imposed training centre, it would have started today and would, on average, have lasted about 16 months, maybe a bit longer, maybe a bit less; although for a serious offence like this, I doubt it would have been less; it may have been longer.
You have spent five months in custody since your arrest, so if the sentence had been training centre, your overall loss of liberty would have been about 21 months. But in my view, training centre is just beyond the range of reasonable expectation here.
So looking at imprisonment, if one takes the bracket of 6 to 9 years for a starting point, even though by weight you are into the middle of the bracket, by your mode and degree of participation, that would drop you, on anyone’s view, it is my belief, to the bottom of the bracket, 6 years.
However, those matters of mitigation that I have rehearsed and that exist before me push me further in your favour, and I would be minded to take a starting point of 5 years. Consistent with how I see your character, you have admitted all of this, you were co‑operative, you pleaded guilty at the first opportunity. You earn a third discount. That would produce a sentence of 3 years and 4 months.
I know the rule is that judges do not look at the probability of remission when they pass sentences, but that prohibition is to stop judges passing bigger sentences because of the existence of remission for good behaviour. When it comes to comparing different sorts of custodial sentence, it is relevant to see what the likely total loss of liberty will be for different sorts of disposal.
So given the rules about remission and good behaviour, on a sentence of 3 years and 4 months, you could expect to have your liberty after 27 months’ incarceration, and that comes down very close to the 21 months’ incarceration which would follow a training centre order, and that extra 6 months sits happily with my perception that training centre is just out of sight or out of range.
Not only that, this is worth saying publicly, the probability is you would still serve that at Pik Uk, the young persons’ prison. By sending you to prison it does not mean you go and mix with bad hats and adults. You will be in a young persons’ prison where the programme of education is very similar, if not identical, to that which is available to those sentenced to training centre. I have no reason to think matters have changed since I last visited Pik Uk, where I saw and was told that the difference between the young persons’ prison and the training centre was often just the colour of the clothing they wore. They shared the same classrooms at different times. They are kept separate, but they had very much the same syllabus.
So by following the option, as I do, for going down the route of the shorter sentence of imprisonment, what I want to demonstrate to you is that it is not radically different from the training centre, which would have been the most you could ever possibly have hoped for, and I have been at some length to explain that not only just to you, but to your family who are here in the public gallery. I know they probably hear the sentence of 3 years and 4 months with a heavy heart, but I hope, after that explanation, it will not be as hard as it otherwise might have seemed.
So the sentence I pass upon you, for the reasons I have given, is one of 3 years and 4 months.
Some of the young men I sentence here I know the courts will see again. I am confident in my judgment in your case that you are not one of those. Make sure that is the case.