COURT: The two defendants pleaded guilty before a magistrate to the following drug-related offences and were committed to the Court of First Instance of the High Court for sentence. D1 pleaded guilty to two charges of trafficking in a dangerous drug and D2 for one charge of possession in a dangerous drug.
There is something in the report of D2 that may cause doubt on the plea, but learned defence counsel confirmed that having taken instruction from D2, he maintained his guilty plea. Learned counsel Ms Chow also provided the reason for causing the officer to include the remark in the report. I accept the reason. Having considered the whole circumstances, I am satisfied that the guilty plea of D2 is proper.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the type and quantity of the dangerous drug involved, personal background of the defendants and mitigation put forward on their behalf. I also have regard to the recent Court of Appeal case of HKSAR v Herry Jane Yusuph, CACC 93/2019.
The facts of the case may be summarised as follows.
When D1 got into a private car which was parked on the road with D2 sitting in the driver seat, police took action and searched the car in their presence. D1 was at that time sitting in the front passenger seat. Inside the car, ketamine was found. In the compartment in front of the front passenger seat, a box containing seven plastic bags containing a total of 83.9 grammes of a solid containing 71.3 grammes of ketamine was found.
D1 admitted that these bags of drug belonged to her. In the compartment between the driver seat and the front passenger seat, a cigarette packet containing 13.8 grammes of a solid containing 10.3 grammes of ketamine was found. D2 admitted possession of these bags of drug for his self-consumption.
D2 also admitted to have borrowed the car and drove to the place to pick D1 up for lunch.
D1 was later escorted back to her home for a search. There, a plastic bag containing 125 grammes of a solid containing 105 grammes of ketamine as well as two electronic scales were found. D1 admitted that this bag of drug belonged to her.
I was told that D1 is now 35 years of age. She was born in Macau and completed Form 4 education in Hong Kong. She had worked in hair salon and was abused by the employer. She had also operated a clothing shop. The business was not successful and she became a saleslady in the same field. She then met a traffic accident and since then has not been able to stand long. She started to work in nail beauty shop. In 2010, she started to work in a casino back in Macau which was run by relatives. In 2016, she started her own business in leather care. The business was not good and she incurred heavy debt. She lived alone. She did not have any criminal record before.
D2 is now 40 years of age. He had completed Form 3 education and had worked as an air conditioner maintenance worker on a long term casual basis. He is single and living with his mother who is 70 years’ old. This is the fifth time he has been convicted for possession of dangerous drug. He was first convicted of this offence in 2004 and a probation order was imposed. He breached the order and was sent to DATC instead. In 2005, he was sent to DATC for another conviction. In 2009, he was sentenced twice to 2 months’ imprisonment.
Learned counsel for D1, Ms Lam, stressed that this is the first time the defendant has committed an offence and she had pleaded guilty at the earliest opportunity, which shows her real remorse. She informed the court that D1 was lured into committing this offence since she desperately needed money to save her business which was suffering severe financial loss. She urged the court to accept that it was completely out of character for D1 to commit the offence. She said that D1 was determined to turn over a new leaf and has taken up and completed some courses when in custody. Certificate which D1 had obtained were produced.
The defence also produced letters written by D1 herself and also letters from her mother, brother and friends. In her letter, D1 set out her background, accounted for her involvement in the offence and expressed remorse. In the other letters, leniency was pleaded on behalf for defendant. The parents, some siblings and friends are present in court to show support to the defendant.
Learned counsel for D2, Ms Chow, told the court that D2 had bought the drug for his own consumption one day prior to the arrest. On the day, he drove the car to pick D1 up for meal. She also stressed that D2 pleaded guilty at the earliest opportunity. She asked the court to impose a probation order in the light that the defendant had been kept in custody for about 13 months prior to his release on bail. She submitted that probation may help to ensure that the defendant would not consume drug again. She asked the court to take into account that despite D2 has not been engaged in long term employment, his job situation has been stable and D2 had been earning steady income despite the unfavourable economic climate during the COVID pandemic.
D1 was convicted for trafficking in ketamine. The Court of Appeal held in SJ v Hii Siew Cheng [2009] 1 HKLRD 1 that in a case of trafficking in ketamine, if the narcotic content is between 50 to 300 grammes, the sentence should be 6 to 9 years. I see no reason to depart from the tariff in the present case. For D1, having considered the whole circumstances pertaining to her, including her previous clear record, I adopt the following starting points:
Charge 1, 6 years and 3 months.
Charge 2, 6 years and 7 months.
D1 is entitled to one-third discount for the guilty plea tendered before the magistrate. In all the circumstances, having regard to what learned counsel said on her behalf, I am of the view that this is the extent of discount D1 is entitled to. In the circumstances for the present case, it is appropriate to decide the overall sentence to be imposed on D1 having regard to the total quantity of the drug involved. I will make order to this effect.
D2 was convicted for possession of dangerous drug. The narcotic content was 10.3 grammes of ketamine. According to section 54A of the Dangerous Drugs Ordinance, DATC report has to be obtained unless the court is to impose a non-custodial sentence, which is what Ms Chow urged the court to consider.
D2 is 40 years of age. This is the fifth occasions he was convicted of the offence for possession of dangerous drug. Probation order was imposed on the first occasion. He breached the order. He had been to a DATC. For the last two convictions, he was sentenced to imprisonment terms. In the present case, he was in possession of a significant quantity of ketamine and in situation where according to my assessment, the latent risk was high.
In my judgment, probation order is unlikely to be the appropriate sentence, despite statutory supervision is apparently attractive in the special circumstances of the case in the light of the real chance that he might have served his term by now, having been kept in custody after arrest. In the circumstances, I am under a statutory duty to consider DATC report. I also took the opportunity to obtain probation order report.
In the DATC report, DATC is not recommended. D2 is found no longer drug dependent. Probation order is also not recommended in the PO report. The report is not a favourable one. In any case, the officer is of the view that D2 is not in need of statutory guidance and also that effectiveness of statutory supervision is much in doubt.
Having considered DATC report and the whole of the relevant circumstances, as well as the provision in section 4 of the DATC Ordinance, in my judgment DATC is not the appropriate sentence to be imposed on D2. I also share the observation and the opinion of the probation officer. I do not find probation order the appropriate sentence.
Having regard to the criminal record of the defendant, I am of the view that only an immediate imprisonment term is appropriate. I have had regard to cases including HKSAR v Wong Wai Wah, CACC 181/2017; R v Chiu Hung Wong [1994] 1 HKCLR 134; R v Lam Ming Kit, CAA 656/1993(R v Tam Man Kit, CACC 656/1993?); HKSAR v Chu Kam Wah, CACC 573/1997 and Chan Tai Wah, CACC 476/2011. Thus, taking into account the quantity of ketamine in possession of D2, which was 10.3 grammes of ketamine, in my judgment, a starting point of 15 months is appropriate.
I also have to assess the degree of latent risk. In this connection, I take into account the quantity of drug which D2 possessed, my acceptance that he was a drug abuser and his criminal record which does not include any conviction for trafficking, my assessment is that there was a very high latent risk, and for this I enhance the starting point by 8 months. I will further enhance the starting point by 1 month to take into account the previous records of the defendant. Taking these aggravating factors into account, I adopt 24 months as the notional sentence after trial.
D2 is also entitled to a one-third discount as he pleaded guilty before a magistrate. In all the circumstances, having regard to what learned counsel said on his behalf, I am of the view that this is the extent of discount D2 is entitled to.
Now, D1 for the reasons I have mentioned, I impose the following sentences on you.
Charge 1, 4 years and 2 months’ imprisonment. Charge 2, 4 years and 4 months’ imprisonment. Having regard to the total quantity of drug involved and the principle of totality, I order 10 months of the sentence imposed on Charge 2 to run consecutively to that of Charge 1. You are to serve a total sentence of 5 years for the two charges.
D2 for Charge 3, you are to serve an immediate imprisonment term of 16 months.