CRIMINAL CASE NO. 190 OF 2010
COURT: Each accused has pleaded guilty to, in the case of the 1st accused, a single charge of trafficking in a dangerous drug, and, in the case of the 2nd accused, to two charges of trafficking in a dangerous drug.
The facts which each has agreed in regard to the offences are that on 5 January last year, police officers carried out an operation in respect of premises in Shek Kip Mei Estate. In the late afternoon of that day, the police were keeping watch on the premises when two females, one of whom was the 1st accused, approached the premises.
The 1st accused was carrying a bag which subsequently was found to contain the drugs which are the subject matter of the 2nd count, namely 375.99 grammes of ketamine.
When the door to the premises was opened to admit the two females, a police officer went forward and managed to gain entry.
The 1st accused pointed to the 2nd accused in his presence and said that he had asked her to carry the drugs there. At that stage she was arrested and cautioned, and again laid the blame on the 2nd accused, saying that he had offered to pay her $400 for her trouble. When he was arrested and cautioned, he denied that it had anything to do with him, and indicated that he had not asked her to carry the drugs there.
A subsequent search of the premises revealed the substances which formed the subject matter of the 3rd count, namely 39.48 grammes of ketamine and 6.31 grammes of cocaine. Also found were empty plastic bags, a sealing machine, and $22,760 in cash.
The 2nd accused, having acknowledged that he was the occupant of the flat, was then arrested and cautioned again. He then pointed the finger again at the 1st accused, saying that she had asked him to store the drugs there, she would give him some money each month for doing so, but acknowledging that he had indulged himself by using the drugs. This resulted in the 1st accused being cautioned once again when she, in turn, said those additional drugs had nothing to do with her and she had not seen them before.
When the 1st accused was subsequently interviewed, she explained what had happened that evening, repeating her allegation that it was the 2nd accused who had asked her to carry the drugs. Just for the sake of the record, of course, what she said in her record of interview is not admissible against the 2nd accused, and I will ignore it insofar as he is concerned.
She continued that she had been aware that the bag contained drugs as she had been delivering the drugs for the 2nd accused since November the previous year, and would receive payment according to the amount of drugs that she delivered to customers.
When the 2nd accused was interviewed under caution, he revealed that he had been working for a male called “Ah Kit”. That employment had started in October 2009. He said that in November 2009 he had met the 1st accused, who had asked him if she could also be involved in the carriage of drugs.
That is an important factor insofar as the 2nd accused is concerned, because I am told that in her non‑prejudicial statement, the 1st accused confirms that it was she who approached him, and that at first he declined to let her become involved. However, he relented, and she did become involved in the carriage of drugs.
The 2nd accused continued that on the day of the offence, he had been unwell and unable to carry out a particular deal, so he had told “Ah Kit” to contact the 1st accused.
The accused both came before me first on 11 January this year. At that stage I was informed that each had offered to assist the police in trying to locate “Ah Kit”. The matter was adjourned to enable those inquiries to be made, and at the same time I called for a background report in respect of the 1st accused. I took that course because at the time of her arrest, the accused was only 15 years old. Whilst I have every confidence that Ms Cheng, who represents the 1st accused, had conveyed to me everything that had been made known to her, there are times when especially young people do not mention matters to their counsel that are revealed in the course of background reports.
As it is, there was quite a substantial amount of information in the background report which had not been made known to Ms Cheng, I am sure. It paints a picture of a young girl who comes from what may best be described as a difficult or troubled background, who, for whatever reason, started taking drugs at a frighteningly young age, and whose downward spiral resulted in her asking friends to offer her the opportunity of delivering dangerous drugs in order to earn quick money.
Many people, of course, come from troubled backgrounds. Not many of them resort to crime as a result.
The 2nd accused was about three years older than she at the time. I did not think it likely to be helpful in the circumstances to call for a background report in his instance. Mr Beel, who has appeared for the 2nd accused throughout these proceedings, has outlined his background to me today.
As at the date of the offence, each of the accused had no previous criminal convictions.
The guidelines for sentence are well prescribed in respect of ketamine, and the appropriate starting point after trial in respect of the quantity referred to in the 2nd count, in my judgment, would be 9 years and 9 months’ imprisonment.
That is the only charge that the 1st accused faces. She entered a plea of guilty at the earliest opportunity, timeously, and is entitled to a full one-third discount. That reduces the sentence to 6 years and 6 months’ imprisonment.
Now, she, together with the 2nd accused, has made positive efforts to assist the police. They have each attended identification parades in an attempt to identify the person known as “Ah Kit”. Neither of them was able to make an entirely positive identification. I am told by Mr Power, who appears for the prosecution, that in the course of the parade, all the persons participating wore shower caps. It seems that this is a procedure followed almost as a matter of course, and is one which, save in the most exceptional of circumstances, is to be strongly deprecated.
The 2nd accused, although it would probably be easier to deal with this when turning to the question of his sentence, was 80 per cent certain as to the identity of the person known as “Ah Kit”.
I am satisfied that each of them, in addition, has made other genuine efforts to assist the police which go further as an indication of remorse than would normally be so in respect of a plea of guilty.
The 1st accused indicated that whilst she would have been willing to point out the residence of “Ah Kit”, she was not familiar with it and was unable to do so.
It seems to me that a further reduction of 3 months in respect of her additional assistance would be appropriate. She is consequently to serve, on Count 2, a period of 6 years and 3 months’ imprisonment.
The calculation of the 2nd accused’s sentence is a little more complex by virtue of two reasons. Firstly, he faces Counts 2 and 3, and in respect of Count 3, there is a combination of different drugs.
I am required, as a matter of principle, to pass individualised sentences in respect of each count. In respect of mixtures of drugs, the appropriate course to follow is to take the higher sentence which would relate to the larger or more serious quantity of drugs, and then make some form of upward adjustment for the presence of the second, perhaps less serious, drugs.
That is what I propose to do in respect of Count 3, but then to follow the well-settled principles regarding the amount of drugs involved, although spread in two parcels, as a single unit, to ensure that an excessive sentence is not imposed.
In respect of the quantity of drugs referred to in Count 2, again the appropriate starting point is 9 years and 9 months. Looking at the drugs in Count 3, the quantity of ketamine was 39.48 grammes, which suggests a starting point of the order of 5 years. The quantity of cocaine was 6.78 grammes, which by itself suggests a starting point of 4 years.
Taking both of those quantities involved, it seems to me that the appropriate overall starting point on Count 3 would be one of 6 years’ imprisonment. Reducing each of those figures by one-third for the pleas of guilty, one is left with 6 years 6 months on Count 2, and 4 years on Count 3.
The reality of the situation is that if the ketamine found in respect of Count 3 were regarded as part and parcel of the ketamine involved in Count 2, it would make little difference, probably only a matter of months, to the starting point which would have been imposed on Count 1.
It seems to me, therefore, that to ensure fairness to the 2nd accused, the appropriate order for me to make would be to order that 6 months of the sentence on Count 3 be served consecutively to the sentence on Count 2, making an aggregate, before any further discount, of 7 years’ imprisonment.
Working backwards, that suggests an overall starting point after trial of 10 years and 6 months’ imprisonment, which seems to me to be consistent with the approach I have adopted.
The 2nd accused has played a slightly greater role, or more productive role, from his point of view, in his co‑operation with the police, having been able to at least recognise to a reasonably positive level the person known as “Ah Kit”, but has yesterday, I am told, been able to point out to the police “Ah Kit’s” residence, as a result of which “Ah Kit” has been arrested and charged with conspiracy to traffic in dangerous drugs. I am told that his evidence will be of importance at “Ah Kit’s” trial.
For the additional active co-operation with the police which, as I indicated in respect of the 1st accused, I regard as being illustrative of genuine remorse, I will afford him a further discount of 3 months from the aggregate of 7 years.
I am not taking into account any additional discount to which he may be entitled as a result of co‑operation that actually leads to him giving evidence. That is because it is now well settled that one cannot give a discount in respect of anticipation of giving evidence, but that the door remains open, if an accused subsequently gives evidence that is useful, for him to apply to the Court of Appeal for leave to appeal out of time. That is a course which would be open to the 2nd accused and would remain open to the 2nd accused depending on what happens in the future.
My attention has been invited to the provisions of section 56A of the Ordinance, which provides that:
“A court may, where it is satisfied it is appropriate to do so, enhance an otherwise proper sentence.”
My attention has properly been drawn to a number of authorities where older persons have received enhanced sentences for enlisting the services of younger persons, particularly young people, for trafficking in drugs.
I am not prepared to exercise my discretion to enhance the sentence in this case. First, it is quite clear from what has been put before me, whether or not this eventually is established to requisite criminal standard, that a third party has been involved with these two young people, and it seems probable to me that that third party has been the moving force behind them. Secondly, there is a very small difference in their age. Thirdly, it seems that in fact it was the 1st accused who wished to become involved in the trafficking in dangerous drugs, rather than the 2nd accused who actually recruited her to do so; and fourthly, this appears to have been a venture in which they were equally involved, with no real suggestion of an element of control by either of them over the other.
I am satisfied that, given the nature of the offence, despite their ages, there is no other appropriate disposal of this matter other than by sentences of immediate imprisonment.
Consequently, the sentences that are imposed are:
1st accused, on Count 2, a period of 6 years and 3 months’ imprisonment;
2nd accused, on Count 2, a period of 6 years and 6 months’ imprisonment; on Count 3, a period of 4 years’ imprisonment, of which 3 months is to be served consecutive to the sentence on Count 2, making an aggregate of 6 years and 9 months’ imprisonment.