On 29 June 2020, the defendant drove a yellow Porsche Boxster to Le Meridien Hong Kong, Cyberport Hotel, a hotel located at 100 Cyberport Road, Cyberport and parked it outside the hotel. After parking the Porsche and entering the hotel, the defendant came back to the Porsche and got back into the driver seat at 1525. At this point, the defendant was intercepted by the police, and the Porsche was then searched by the police.
The police officers, in the presence of the defendant, opened the rear trunk of the Porsche and found a Louis Vuitton paper bag, which contained a white towel. Underneath the white towel, the police officers found three transparent resealable plastic bags which contained a total of 2,993 grammes of a solid containing 2,559 grammes of ketamine. The ketamine in question had a street value of about HK$1.38 million.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach as set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of the drug concerned. Following Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and HKSAR v Sin Chung Kin[2013] 1 HKLRD 627, the Court of Appeal held that for trafficking in 2,000 grammes and 3,000 grammes of ketamine, the appropriate starting points should respectively be no less than 18 years and 20 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. There is little evidence to show exactly what role the defendant played in the drug-trafficking hierarchy. Therefore, taking a view of the facts most favourable to the defendant, I would treat his culpability at the same level as that of an ordinary courier or a storekeeper.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes. This would yield a starting point for the sentence. In respect of this defendant, trafficking in 2,559 grammes of ketamine, the proper starting point is 19 years and 1 month’s imprisonment.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point. I am not aware of any such aggravating factors in the present case.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence, bearing in mind that the personal circumstances for this offence generally count for little. I have borne in mind the observations of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendant’s personal circumstances are rarely a mitigating factor. In light of the aforesaid principles, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step.
The sixth and final step is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. In the words of Deputy High Court Judge McWalters in HKSAR v Suen Yuk Hang [2021] HKCFI 2940, the judge should ensure that the sentence is not a crushing one but one that is fair, balanced, timely and just.
In applying this sixth step, this court has been assisted by the way in which other sentencing courts have applied this sixth and final step. In particular, see HKSAR v Kwan Wai Fan [2021] HKCFI 2036, HKSAR v Chan Ho Kwai [2021] HKCFI 2938, and HKSAR v Cheng Man Kit [2021] HKCFI 3032 and others.
The defendant in this case is a Dutch national and is currently 49 years old. He is divorced with two children. He has no previous criminal convictions in Hong Kong or in the Netherlands. There is no evidence to suggest that he came to Hong Kong for the purposes of committing an offence. Rather, the evidence suggests that he came to Hong Kong to visit his then girlfriend. That is PW10.
The defendant is now facing a term of sentence of slightly over 19 years, and as a foreigner serving such a lengthy sentence in Hong Kong, this will obviously create additional harshness. Even assuming that the defendant receives a full remission of sentence for good behaviour, he would be into his 60s when he leaves prison. As stated by Deputy High Court Judge McWalters in the cases already cited above, the question for this court is whether the notional sentence will be crushing on this defendant. I am of the view that it will be.
Tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to trafficking offences and having regard to the authorities cited above in which the sixth step has been applied to lengthy sentences, the defendant’s notional sentence will be reduced to 18 years’ imprisonment. In my view, such a sentence is sufficiently punitive and sends a clear message of denunciation and deterrence.
Defendant, please stand up. I sentence you to a term of 18 years’ imprisonment. Please sit down.