At around 1.27 pm on 19 November 2010 a police officer on duty at No 58 to 70 Lok Shan Road, Hung Hom, Kowloon, intercepted the defendant on her way home.
Suspecting her to be trafficking in dangerous drugs he searched her. In a large handbag she was carrying he found a rucksack that was secured with a locked padlock. The defendant used a key to open the padlock and on searching it the police officer found six transparent resealable plastic bags, each containing two smaller transparent resealable plastic bags containing the ketamine that is the subject of the 1st count.
The defendant was arrested for trafficking in dangerous drugs. Under caution the defendant stated that the drugs were ‘K’ and she was helping someone to drag them.
The police then accompanied the defendant to her residence at Room C, 2nd Floor, No. 7 Mei Wa Street, Hung Hom, Kowloon. The premises consisted of a single living bedroom with a toilet.
The police officer conducted a house search and found the following items inside the premises:
(a) A cut open transparent resealable plastic bag containing ketamine on top of a bedside cabinet; and
(b) A transparent resealable plastic bag containing ketamine inside a drawer of the same bedside cabinet.
These drugs are the subject of the 2nd count. Paraphernalia suitable for packaging dangerous drugs, including two electronic scales and 17 transparent resealable plastic bags were also found in the premises.
The police officer then again arrested and cautioned the defendant for suspected trafficking in dangerous drugs in relation to the ketamine found in her presence.
Under caution the defendant said that the ‘K’ inside the premises was dragged there by her earlier and she was just making a living.
Another police officer then performed a thorough body search of the defendant and found that the defendant was in possession of $6,103.20 in cash and four mobile phones.
The total value of the drugs seized has been estimated by a member of the Intelligence Division of Narcotics Bureau as being in respect of Count 1, $343,360 and in respect of Count 2, $44,080. The total retail value of all of the ketamine seized is $387,440.
In different cases the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug trafficking offence. The first is that for sentencing purposes ketamine is to be treated as the same as Ecstasy. Secondly the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained.
Thus the quantity for which this defendant must be sentenced is 2.4 kilogrammes for the 1st count and 0.30 kilogrammes for the 2nd count. The total amount of ketamine is 2.70 kilogrammes and this is the amount for which the defendant will be sentenced with the sentences for each count to be concurrent, see HKAR v Chan Pui Chi [1999] 2 HKLRD 830.
Thirdly, the sentencing ranges for trafficking in ketamine are to be taken from the guidelines laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. There the Court of Appeal said that for amounts over 1,000 grammes the sentencing range should be 14 years’ imprisonment upwards and for 50 to 300 grammes the sentencing range should be 6 to 9 years’ imprisonment.
The existence of the sentencing tariffs leave little room for mitigation but notwithstanding this the sentencing tariffs play a very important role for two main reasons.
Secondly, they help to deter those who might otherwise be tempted by what they perceive as an easy and low risk means to substantial profits, see Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20.
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines and that whilst a sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands, see the Chan Ka Wah case at page 908, paragraph 22.
No such exceptional circumstances are present in this case.
Nevertheless, I still have some sentencing discretion. Although it has been clearly stated by the Court of Appeal that a clear record and youth, other than extreme youth, should not have any bearing on sentence, I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender and any previous involvement she may have had in drug offences, see HKSAR v Abdallah [2009] 2 HKLRD 437, and HKSAR v Chong Heung Sang [2010] 3 HKC 88.
The defendant was born on 8 November 1986 and is now aged 25. She started getting into trouble with the law in 2005 when she would have been 19 years of age. At this time she was fined for an offence of theft. In 2007 she was again fined for possession of dangerous drugs and a year later she was convicted of three offences, namely, theft, using a false instrument and possession of dangerous drugs.
She was fined for both the theft and possessing a dangerous drug offences and given a 4 month sentence of imprisonment suspended for 3 years for the using of false instrument offence. She was also ordered to pay $54,603 compensation to the victim but $42,228 of this amount still remains unpaid.
In the present case the quantity of drugs is within the 14 years upwards imprisonment band as it covers trafficking in 2.70 kilogrammes.
I adopt 16 years as my starting point. I discount that sentence by one-third to allow for the plea of guilty. The resulting sentence is 10 years 8 months and that is the sentence for the 1st count.
For the 2nd count I adopt 9 years’ imprisonment as my starting point and discount it to 6 years’ imprisonment and I order it to be served concurrently with the sentence for the 1st count.
Because the sentence is ordered to be served concurrently the final sentence for the drug offences is 10 years 8 months.
The drug offences were committed whilst the defendant was almost 2 years into a 3 year suspension period of her sentence of 4 months’ imprisonment for using a false instrument. There is no reason not to activate this sentence.
After taking into account the mitigation submitted on her behalf I order that 3 months of the original sentence be activated and that the sentences for the two drug offences be served consecutively to the 3 month sentence for using a false instrument. The total sentence becomes, therefore, 10 years 11 months’ imprisonment.
The defendant please stand. Madam, you have been in trouble with the law since you were a young adult. I understand that you have had a difficult youth in which there may have been much sadness. I accept that life has not been easy for you. Unfortunately that is no justification for turning to drug trafficking. The quantity of drugs in which you were involved was enormous.
The sentence that I have imposed upon you may seem very substantial but there are reasons why the courts of Hong Kong impose upon drug traffickers substantial sentences of imprisonment and I have explained these to you.
Nevertheless your counsel will have explained to you also that the Commissioner for Correctional Services does have some discretion for granting you remission should you be of good behaviour in the course of your prison sentence. Should that be granted to you you will still be a young woman when you complete your sentence and leave gaol.
What you do with your life then is a matter entirely in your hands. Should you encounter difficulties in getting interesting and enjoyable employment it will be very tempting and easy for you to resume a career in drugs. That would be disastrous for you and only result in you wasting your life.
I urge you to use your period in gaol to acquire some skills or qualification which would enable you to do something with your life once you are out of gaol but that, as I said, is entirely in your hands.
Life does not treat everyone equally and some people get treated more unfairly than others. There is no point dwelling on how unfairly you may feel life has treated you so far. You must now look to the future and do what you can to ensure that when you come out of gaol you do have a worthwhile and enjoyable life ahead of you. You may sit down.