COURT: The defendant was charged with the offence of trafficking in a dangerous drug and he pleaded guilty before a magistrate on 18 April this year. The particulars of the offence alleged that on the 21st day of June 2023, at the junction of Ferry Street and Pitt Street in Yau Ma Tei, together with other persons unknown, he unlawfully trafficked in 249 grammes of a solid containing 208 grammes of ketamine.
According to the Summary of Facts to which he agreed at the time of his plea of guilty, on 21 June 2023 the police found that he was acting furtively at a particular road junction in Yau Ma Tei at about 3.12 pm. The police intercepted him for enquiry. He became emotional and attempted to escape. Eventually he was controlled by the police. At that time, he was carrying a brown paper bag.
From the brown paper bag the police found a brown paper box containing one resealable plastic bag containing the drug particularised in the charge. He was arrested and he remained silent under caution.
But, in a subsequent video-recorded interview, he admitted that a guy called ‘Bo Kei’ instructed him to take something in the area of Ferry Street and Pitt Street and deliver it to somebody at Waterloo Road. He collected the items at the toilet of Yau Ma Tei and he knew that it was dangerous drug even though he was not sure about the type of drug concerned. He claimed that he was not rewarded for his delivery.
The estimated street value of the drug seized is about HK$125,745.
The defendant now accepts and admits that at all material times, he knowingly possessed all the dangerous drug seized for the purpose of unlawful trafficking.
The defendant was 63 years old at the time of the offence and he is now 64 years of age. He is single, and defence counsel informed me that indeed he is divorced. He was born in Mainland China and had completed primary school education in China. He came to Hong Kong at the age of 19. He was unemployed at the time of the offence, and he relied on the Comprehensive Social Security Assistance in the sum of $4,000 odd per month. Counsel informed me that he was addicted to heroin since 1980s.
He has a long history of criminal convictions. According to his criminal record, he has altogether 53 sets of criminal convictions for various offences including five offences of trafficking in dangerous drug since October 1983 when he was 23 years old, conviction for 20 offences of possession of dangerous drug, and three offences of possession of equipment fit for consumption of dangerous drug.
His last conviction for trafficking in dangerous drug was in 1999, some 24 years ago, and his last conviction for a drug-related offence, that is possession of dangerous drug, was in 2011.
In respect of the reason why he committed the present offence, counsel submitted that because he was in dire financial straits as he needed money to feed his drug addiction. However, since his remand for the present offence he was able to get rid of his drug addiction. So it is clear that even though his drug-related conviction was in 2011, apparently at the time shortly before the offence he was still addicted to dangerous drug, and that was why he committed the present offence.
Counsel submitted that his role was simply one of a courier and urged this court to take into account the fact that his last trafficking conviction was about 24 years ago. Therefore, this court is urged not to take into account his convictions as an aggravating factor.
Of course, the valid mitigation is his plea of guilty at the earliest opportunity. As such he is entitled to the full one-third discount.
In sentencing the defendant, I bear in mind the principle stated by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as modified by the Court of Appeal in the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
According to the guidelines in the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking in between 50 and 300 grammes of ketamine would attract a starting point of 6 to 9 years’ imprisonment after trial. In the present case the ketamine narcotic involved is 208 grammes, and mathematically the starting point should be one of 7 years and 11 months’ imprisonment.
The mathematical starting point is appropriate for people at the bottom of the trafficking hierarchy such as couriers and storekeepers. In the present case, I accept counsel’s submission that the role of the defendant is one of a courier, and as such, I would adopt 7 years and 11 months as the appropriate starting point.
I have taken into account his criminal convictions. Even though his last conviction for drug-related offence was in 2011, and his last conviction for trafficking offence was more than 20 years ago, the fact remains that amongst his 53 sets of criminal conviction he has a lot of drug-related convictions, including five for trafficking in dangerous drug and 20 for possession of dangerous drug.
His last conviction was in 2019 for a drug-unrelated offence. However, given the fact that he committed the present offence to feed his drug addiction, it is clear that he had not stayed away from dangerous drug even in recent years.
Taking into account the history of his convictions, I consider that it should be taken as an aggravating factor. As such I would add 9 months to the starting point, making a notional sentence after trial of 8 years and 8 months, that is 104 months’ imprisonment.
The only mitigating factor is his plea of guilty, and as such, he is entitled to a full one-third discount.
I will sentence him to 5 years and 9 months’ imprisonment for the present offence.