COURT: You pleaded guilty on 13 September of last year before the Eastern Magistracy of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 in that you accepted that you unlawfully trafficked in 1,269.2 grammes of ketamine on 22 October 2020 at Ngau Tau Kok Road, Kowloon.
The summary of the facts has been read out to you and it has been agreed by you today, and therefore, you are formally convicted upon your own plea.
You are a Hong Kong resident and were just 17 years old at the time of this offending. You have a limited secondary education but were employed at some point in time as a hairdressing assistant although, as I have said, you were unemployed at the time of your arrest. You were of good character.
On 22 October 2020, the police were carrying out an anti-drugs operation when you were intercepted, having just come out of a residence which was not your home address. A search of that address recovered the drugs which you have pleaded guilty to trafficking, as well as empty plastic bags, gloves, electronic scales for packaging those drugs into even smaller amounts for onward sale.
On arrest and caution, you said you delivered the drugs to earn money as you were unemployed. You were the subject of three video-recorded interviews in which you admitted having been delivering drugs for only a week for someone called “Tai B”. And you said you had earned three to four thousand dollars for doing so. This was supported by the content of your telephone messages.
The value of the ketamine in October 2020, which was recovered, would have been $866,620. That is a lot of ketamine.
Mr Lo has told the court that you were raised in a single-parent family by your mother who, sadly, passed away when you were 15 years old. That would have been very difficult for you and for your sister. He tells me thereafter you were in the care of your maternal aunt but that relationship was not a close one. Your father also played no part in your care. He submits that without adult guidance and feeling a need to support yourself and your younger sister, you foolishly took what appeared to be an easy route by agreeing to courier drugs.
But we now know that you were living independently at the time of this offending and that you were no longer in daily contact with your younger sister whom Mr Lo has suggested was the motivation for your offending. I suspect that this was in fact simply an easy way to make money.
The law in respect of sentencing of drug traffickers has recently been reviewed in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. In that case, Macrae VP set out a six-step approach to the sentencing of offenders in which he reaffirmed that personal circumstances were of less weight than the sentencing principles of denunciation, deterrence and punishment. However, he went on to state that there was still a role for the exercise of judicial discretion. That was so despite the fact that the courts strive for consistency in sentencing so as to ensure that the public know the consequences of their actions if they break the law and that an offender can expect to be treated in a similar manner no matter which tribunal he or she appears before.
Consistency is one of a number of competing factors in sentencing. Human beings are not robots. No two offenders are alike in all respects. They come from significantly different ethnic, social and economic backgrounds, with a multiplicity of other influences affecting their personal choices. Sentencing guidelines are just that, guidelines. They guide the sentencer to the appropriate bracket for sentence but they do not compel them to apply that bracket come what may.
The case of HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1 provides sentencing guidelines for trafficking in ketamine up to 1 kilogramme, at which point sentencing is at the discretion of the court. Although I have to bear in mind that this authority suggests that the starting point for trafficking in up to 1 kilogramme of ketamine after trial is 14 years as Mr Lo has conceded, you have admitted to trafficking in a greater quantity.
In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, it was suggested that the starting point for trafficking in 2,000 grammes should be in the order of 18 years. Your role was to repackage and transport the drugs to others and therefore there is nothing which indicates that I should alter, either up or down, the initial starting point under the guidelines. Those authorities therefore suggest, as again Mr Lo has conceded, a starting point of 15 years, which would be appropriate for trafficking in 1,269 grammes of ketamine after trial.
There are no aggravating features which would alter that initial starting point, and there is little by way of background which would reduce the notional sentence after trial of 15 years as there are no very special factors under HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 which can be taken into account. It is very difficult to exercise one’s discretion when one has nothing to exercise it upon.
Under HKSAR v Abdou Maikido Abdoulkarim [2016] 5 HKLRD, as you have pleaded guilty at committal, you are entitled to a full one-third discount from that sentence after trial and you are commended for having done so.
I have taken into consideration all that has been said on your behalf by Mr Lo so that I ensure that the sentence I pass is fair, balanced and just in all the circumstances of this offending and the defendant herself. But there is nothing within the mitigation advanced which can reduce your sentence further than that one-third.
Accordingly, the sentence I must pass upon you is one of 10 years’ imprisonment.