COURT: The defendant pleaded guilty in the Magistrates’ court on 7 November 2022 to one count of trafficking in dangerous drugs, namely, unlawfully trafficking 199.6 grammes of a solid containing 164.2 grammes of ketamine on 24 March 2021.
He was committed for sentence and on 30 June 2023, he confirmed his plea and agreement to the Summary of Facts. Sentence was adjourned until today.
Summary of Facts
On 24 March 2021, the defendant was arrested near his home for another case, a charge of attempted robbery. At the time of his arrest, he had five keys and two mobile phones on him. He was taken home for further investigation and a house search. His home was at 15-31 Shung Yan Street, Kwun Tong. No one else was at home at the time.
During the house search, the police found a box containing two electronic digital weighing scales and a number of transparent resealable plastic bags. They also found a bag containing 15 transparent resealable plastic bags containing the ketamine of this case. The defendant was arrested for trafficking in a dangerous drug and under caution said that the drugs were given to him by ‘Dai Fei’ and he was asked by this person to keep the drugs at his home.
The defendant agrees that the estimated street value of the ketamine was about $111,000 at that time. He admitted and accepted that at the material time, he was unlawfully trafficking in this amount of dangerous drugs.
Mitigation
The defendant is now 18 years old and was 16 years and 6 months old at the time of this offence. He was living alone, he comes from a broken family and is the middle child of three siblings. His parents had a very tumultuous relationship and his mother developed psychiatric or psychological problems as a result of her violent marriage. She took the children to live apart from her husband and their father in 2017.
A year later, her husband found out where they were living and problems ensued, they had to move again. They moved to these premises in Kwun Tong where the drugs were found. The defendant however was left to live there alone when his mother and younger sibling moved to live with her cohabitee, he was left behind in those premises.
The defendant had no parental or adult control or supervision and a peer called Dai Fei moved in with him and was obviously a bad influence. Together with others, they attempted to commit a robbery which has resulted in the defendant being sentenced to a training centre order he is presently serving.
The defendant told the police that it was Dai Fei who bought the drugs to his home and asked the defendant to keep them there.
The defendant was a Year 1 student at the Hong Kong Institute of Vocational Education. When he was arrested, he had a clear record. However, he was sentenced, as I have said, to a training centre order by the District court on 18 January 2023 for one count of attempted robbery. He was charged jointly with other defendants.
As of now, he has served just over 5 months of that training centre order. I did adjourn sentence to today to obtain a progress report to ensure I had all facts to assist me in sentencing. I have also received a letter from the defendant this morning.
Mr Wong has said all he can say on behalf of the defendant in mitigation. He, because of the defendant’s age, clear record at the time of this offence and because he is presently serving a training centre order, did urge me to consider imposing a fresh training centre order for this case which would be served consecutively with the training centre order imposed by the District Court in January.
I have a progress report from the Correctional Services Department. The defendant has not been subject to any disciplinary reports. He has adapted, he has behaved appropriately and is cooperative.
Sentencing
I have considered the approach to sentencing those trafficking in dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority.
In this case, I accept and I am satisfied that the defendant was storing the drugs for a peer who was a bad influence and using the defendant and his home to store the drugs because he was living alone in the premises. There is no evidence that the defendant dealt with the dangerous drugs other than allowing them to be stored there and Dai Fei to live there as well.
The sentencing regime for trafficking in ketamine is governed by guidelines laid down in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The Court of Appeal has held that where between 50 and 300 grammes are trafficked, the starting point should be between 6 to 9 years’ imprisonment. Mathematically speaking, a quantity of 164.2 grammes of ketamine will attract a starting point of 7 years and 4 months’ imprisonment.
Despite Mr Wong’s efforts to convince me on the last occasion to impose a training centre order and adopt a rehabilitative approach with this defendant, for an offence of this nature and quantity of dangerous drugs, that sentence would be a manifestly inadequate punishment. It is not a fitting and appropriate sentence for this crime and this much ketamine. This is even though the defendant had a clear record and was not yet 17 at the time. It has been said time and time again, that youth and a previous clear record carry little weight for such a serious offence and facts.
However, I will take into account that the defendant’s role was one of a storekeeper. His so-called friend clearly took advantage of the fact that there were no adults living there with the defendant. He was taken advantaged of but also led astray. After all, he committed an attempted robbery with this same so-called friend and others.
For the facts of this case, the quantity of drugs, the mitigation that I heard and the defendant’s role as a storekeeper, I find a starting point of 6 years and 9 months’ appropriate.
Defendant, you have pleaded guilty at the earliest opportunity for which you are entitled to a full one-third discount. Accordingly, after that discount is applied, the sentence is reduced to 4 years and 6 months’ imprisonment.
I will also take into account that the defendant pleaded guilty on 7 November 2020 and his bail was revoked on that day. He therefore spent just over 2 months in custody before he was then sentenced to a training centre order on 18 January 2023.
Moreover, if there had not been other defendants involved in this robbery case in the District Court, then he may have had that charge dealt with at the same time as this trafficking case. There would, most likely, have been a partly concurrent and partly consecutive sentence if that had been the case. This is a factor I do consider of some relevance.
I will not repeat the details of the progress report I requested, but I have taken into account the contents and I am encouraged by the defendant’s attitude and apparent remorse. His determination to start afresh should continue to be encouraged.
As I will impose a term of imprisonment of over 2 years, this means his training centre order will cease to be in effect as from today. As I have said, he has served just over 5 months of that order.
Lastly, I have taken into account the sixth and last step of Herry Jane Yusuph which is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence as well as the offender, to ensure that it is not a crushing sentence.
There is no detracting from the fact that this offence is a serious one and deterrence is paramount. However, in this case, I can take into account the personal circumstances, the facts peculiar to this defendant as well as the factors I have highlighted above. As a result, I will reduce that sentence by a further 8 months.
Therefore, the defendant, you are sentenced to a total of 3 years and 10 months’ imprisonment.