Admitted Facts
The facts disclosed that on 9 December 2020, the defendant was spotted by the police conducting anti-dangerous drug operation to have alighted from a car he had driven to the Cheung On Estate carpark. The defendant was carrying a black plastic bag and a yellow paper bag.
The police declared their police identity and the defendant got back inside the car and placed the two bags on the driver’s seat. The police blocked the car door and told the defendant to alight. The defendant put up a struggle and eventually was subdued when the police reinforcement came.
Upon search of the black plastic bag the following was found: One transparent resealable plastic bag containing 83.5 grammes of ketamine; three resealable bags containing 0.24 grammes of ketamine; and one transparent bag containing 0.23 grammes of a substance called N-isopropylbenzylamine.
And then inside the yellow paper bag the following were found: Three electronic scales; two pairs of scissors, and a bundle of empty resealable bags. Another transparent bag containing 0.18 grammes of ketamine was found inside the tray of the driver’s handle by the police sniff dog.
The defendant was arrested for trafficking in a dangerous drug. Under caution, the defendant admitted that he lost his job due to COVID and he trafficked dangerous drug to earn money. The defendant also admitted that he planned to sell the packet inside the tray of the driver’s handle.
The defendant attended a video-recorded interview under caution. He admitted the ketamine seized weighed around 120 grammes and worth around HK$30,000. He gave details of how he was recruited by a friend to traffic dangerous drug, how he was contacted by someone on 8 December and picked up the dangerous drug and the equipment from a park in Sham Shui Po. The defendant admitted that he would use the equipment to separate the dangerous drug into smaller packets and sell them. However, he was arrested before he could make any business.
The defendant stated he is not a drug addict and this was the first attempt to engage in dangerous drug trafficking. The defendant also claimed that the money found, that is $9,800 and $2,400, were his savings from his previous job as an electrical worker or electrician. The defendant also claimed the two mobile phones seized by the police belonged to him. The total quantity of ketamine seized was 83.92 grammes.
Background
According to the antecedents statement, the defendant was born in 1996 so he was 24 at the time of the offence. He is now 25 and he is single. He is not a man with a clear record. He had appeared in courts before. There were four convictions which were recorded and they are mainly involving common assault or assault occasioning actual bodily harm. And he had one incident of possession of dangerous drugs and he was sentenced to a DATC with no conviction recorded in 2014.
Ms Lau, counsel for the defendant, gave this Court more information about the defendant. The defendant finished Form 3 studies and enrolled in an air-conditioning repair programme offered by the VTC. He only finished one year of the three-year programme and he took up different jobs working for eateries. In 2019, he worked as an electrician/plumber earning $25,000 per month. Due to COVID, he lost his job when the company closed down and the defendant had been doing odd jobs since.
Although the defendant had siblings, he was the one who basically took care of his parents. The defendant mixed with undesirable elements and became a triad member when he was 14. He also started abusing dangerous drugs and I am informed that he is no longer a member of the triad society.
Regarding the present offence, the defendant bumped into a friend who offered a job to the defendant to make quick money. After the defendant gave his contact phone number to this friend, he received a call from a male two days later who asked him to collect dangerous drug at the Tung Chau Street Park. The defendant then borrowed a car from his friend and drove to pick up the dangerous drug. The defendant planned to sell the dangerous drug to his friends who are drug addicts.
The defendant is extremely remorseful for what he did. His parents, his siblings and his friends are all supportive and caring to him. He was offered a job at his friend’s coffee shop upon release from gaol.
Ms Lau asked for leniency on behalf of the defendant. Further referring to the case of HKSAR v Cheung Man Kit, I suppose the report is [2020] HKCFI 2355, it is a decision of DHCJ Bruce. Ms Lau asked me to follow that case in not passing a higher sentence for traffickers involving in the selling of drugs despite the judgment of HKSAR v Kilima Abubakar Abbas and that particular case the citation is [2018] HKCA 602.
The defendant’s parents and siblings wrote to this Court asking for leniency on behalf of the defendant. I don’t think there is any need to reiterate the contents of their letters, suffice it to say that they portrayed the defendant as a basically good person but turned wild when he had low esteem about himself when compared to the older siblings and also he felt that he did not get enough loving care from his family.
While all his family members recognised the serious crime committed by the defendant, they all said they truly believed the defendant had learned his lesson and asked for leniency for his early release. Apart from his family, the defendant’s school friend also wrote to this Court asking for leniency on his behalf.
My Consideration for the Sentence
Offences involving dangerous drugs are serious, particularly when the trafficking of dangerous drug is involved. A person convicted of trafficking in a dangerous drug on indictment is liable to life imprisonment and to a fine of $5 million.
For the trafficking of ketamine, the Court of Appeal has set down the sentencing guideline in the case of Secretary for Justice v Hii Siew Cheng. The quantity of ketamine involved in this case is 83.92 grammes, which falls into the 50 to 300 grammes category. So the appropriate starting point is within the range of 6 to 9 years. Purely on a mathematical approach, 83.92 grammes would attract the starting point of 6 years and 4 months.
The defendant is not a first offender. He started going astray when he was young, mainly involving offences of violence. On one occasion there was an offence of possession of dangerous drugs but no conviction recorded. Even though he is not a first offender, I will not enhance the starting point because of his previous convictions or the drug-related offence.
But the defendant is not merely a courier in this case. In the case of HKSAR v Herry Jane Yusuph, the Court of Appeal when dealing with the six-step approach to sentencing for offences of trafficking in a dangerous drug said that after identifying the relevant guideline band applicable to the quantity of dangerous drug concerned, that is the first step, the court had to assess the role and culpability of the defendant based on the evidence, that is the second step.
The Court of Appeal said a courier and a storekeeper are of the lowest rank in the hierarchy. However, the Court of Appeal made it clear that the term of courier ought not to be stretched to embrace a defendant whose action might fall short of the term. Say, for instance, a defendant who could be shown to be dealing in dangerous drugs to others in the sense of selling, actual or direct trafficking. That is not a courier. So such a person is in a more serious position.
So I am of the view that the defendant’s role was to separate the dangerous drug into small packets and then sell to his addict friends. Although he had not managed to sell any yet, his role is more serious than that of a mere courier.
The judgment of DHCJ Bruce was given on 21 January 2020 and apart from the fact that that judgment is not binding on this Court, the Deputy Judge did not have the benefit of the case of Herry Jane Yusuph which was given on 26 November 2020. Bearing this in mind, I am of the view that a proper starting point is one of 7 years.
The defendant pleaded guilty at the earliest available opportunity. He is entitled to a full one-third discount. And I appreciate the defendant’s parents and siblings might feel they are somehow responsible for the defendant’s misdeed and I can also understand their wish for leniency from the court. However, trafficking in a dangerous drug is a very serious offence and the damage done to the society is incalculable. The family circumstances of the defendant are not such as to amount to a humanitarian ground for this Court to further reduce the sentence.
So a starting point of 7 years means 84 months and with a one-third discount, the sentence should be 56 months and that would equal to 4 years 8 months according to my calculation.