COURT: The defendant pleaded guilty before a magistrate on 29 June 2023 to one count of trafficking in a dangerous drug, namely, 0.7 gramme of a crystalline solid containing 0.61 gramme of ketamine, and one plastic bag containing 249 grammes of a powder containing 216 grammes of ketamine. He was committed to the High Court for sentence.
He comes before me today for sentence, having confirmed his plea and admitted the Summary of Facts in support.
The Facts
The Summary of Facts reveal that on 26 April 2021, two police officers were on anti-narcotics operation outside the entrance of Tower 1A, Park Yoho, Yuen Long District, New Territories. The officers laid ambush in the vicinity. At 2152 hours, the defendant was seen carrying a plastic bag in his right hand and walking suspiciously.
Two police officers intercepted the defendant for an enquiry. The defendant suddenly threw the plastic bag into the bush nearby and attempted to flee. One of the police
officers intercepted the defendant. The other officer immediately retrieved the plastic bag within the visible area of the defendant. The plastic bag was later found to contain a document envelope containing one plastic bag containing 0.7 gramme of a crystalline solid containing 0.61 gramme of ketamine, and one plastic bag containing 249 grammes of a powder containing 216 grammes of ketamine.
Two mobile phones and the key of the defendant’s residence were found on him.
Upon arrest and caution and under caution, the defendant said “Ah Sir, my daughter was just born, and I was in need of money, so that I sold this K-chai. Give me a chance.” “呀 Sir,我個女岩岩出世等錢洗先賣呢啲K仔,俾次機會我啦”.
In a house search conducted on the same day at the defendant’s residence, cash in the sum of $5,010 was found on top of the television cabinet and in the living room, and one electronic scale was found inside the kitchenette cabinet.
In a subsequently conducted video-recorded interview on 27 April 2021, the defendant under caution initially denied he was involved in the case, and subsequently said he had nothing to say to the remaining questions.
Government chemist confirmed the bag contained the ketamine as stated in the charge.
The defendant now admits and accepts that at the material time, he was in possession of the ketamine for the purpose of unlawfully trafficking in them.
Mitigation
The defendant is now 31 years of age. He was educated up to Form 3. He was married in 2019 and his daughter was born in 2021. The defendant worked as a part-time delivery driver since leaving school and was earning about HK$25,000 per month before the COVID pandemic. His income was reduced at the time of arrest due to the reduction of work in the then economic climate. The defendant was the sole breadwinner of the family before the arrest.
Defence counsel, Mr Gordon Wong, submits to the court letters written by the defendant, his mother and his wife. Mr Wong, on behalf of the defendant, submits that he is remorseful and took part in this crime due to financial pressure.
The defendant himself wrote a letter accepting responsibility and explaining why he committed the offence. He said he committed the present offence due to financial pressure and in a bid to make some money for his family. He said he felt ashamed and remorseful. He regrets for his mistakes and realised his wrongdoing. He asked for forgiveness from his family. It dealt a big blow to his family. He hopes he can be released as soon as possible so as to turn a new leaf.
Both his wife and his mother described him as a kind-hearted person and a filial son. They all declared the defendant was truly remorseful and asked for leniency on his behalf.
Mr Wong also informed me that his parents divorced over a decade ago. The defendant’s father passed away in 2019 due to liver cancer. His mother works as a part-time clerk and is now aged 63, approaching her retirement age. The defendant lived with his mother, his sister, his wife and his daughter before the arrest. The defendant’s sister is mentally handicapped and unemployed. She also lives on the maintenance of the defendant.
Sentencing Principle and Tariff
It is well established that trafficking in dangerous drugs is a very serious offence. For this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence, and punishment. The sentencing approach in trafficking cases is set out in the Court of Appeal decision HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I will omit the citation when I read out the reasons for sentence. I shall follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drugs concerned. Following Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal held that trafficking in the band of 50 grammes and 300 grammes of ketamine, the appropriate starting point for traffickers after trial, subject to any enhancement, is 6 to 9 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. As was held in Yusuph at paragraph 59, the bands were for the least culpable of drug traffickers, and couriers fall into this category.
The facts of this case reveal the defendant was apprehended outside the entrance of the building where he resided with his family. While the presence of an electronic scale in the defendant’s residence is suspicious, it is by no means certain on the evidence before me that the defendant took part in repackaging.
I accept Mr Wong’s submission that on the evidence, there is nothing to suggest the defendant had any role beyond the culpability of an ordinary courier. I therefore assess his culpability as with any other courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside that band, whether above or below, given the circumstances of the commission of the offence and the role of the defendant.
In respect of the defendant trafficking in 216.61 grammes of ketamine, a mathematically calculated weight-based starting point would be one of 8 years’ imprisonment. Taking into account the role and culpability of the defendant, I do not find any justification for departing from that starting point.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point.
The defendant was sentenced for his prior drug trafficking conviction on 23 November 2011 for which he received 56 months’ imprisonment. The present offence was committed some 6 years after the defendant’s last discharge in 2015 for the very same offence.
Macrae VP in HKSAR v Har Tsz Yui [2019] HKCA 1336 addressed the issue of the enhancement to be imposed on a recidivist. He stated at paragraph 16 that:
“...the aggravating feature of a defendant being a repeated offender is not susceptible of the arithmetical application of percentage enhancements. Much will depend on the nature and seriousness of the offence, and the need for personal and public deterrence.”
He also added at paragraph 18:
“Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which the judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual, and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.”
This passage was subsequently with approval by Zervos JA in HKSAR v So Yat Ting [2021] HKCA 179 ([2021] 1 HKLRD 1215). He held that a court should ensure the degree of enhancement must be in reasonable proportion to the basic sentence, and the total should not be excessive.
Mr Wong urges the court not to enhance the sentence because the defendant’s previous conviction was some 10 years prior to the date of arrest which was quite a number of years ago. The defendant was then about 19 years old. That being his only previous conviction, Mr Wong submits this offence was committed due to the drastic and unexpected reduction of income as a driver since the start of pandemic.
Having taken into consideration Mr Wong’s submissions, the defendant did not trespass the law for some 6 years after his release from prison, this might indicate the defendant was making an effort to change his ways, I consider the appropriate enhancement is 1 month. This brings me to a notional sentence after trial of 8 years and 1 month’ imprisonment.
Fifth, I am required to have due regard to all mitigating factors. As Macrae VP made clear in Yusuph at paragraph 73, in cases of trafficking in a dangerous drug, personal circumstances will count for little, unless they are exceptional.
The defendant has a very caring and supportive family as evidenced by the letters that have been submitted by his mother and his wife. While I can understand many people in Hong Kong were under financial pressure during the pandemic, it does not excuse engaging in very serious crimes such as the present one.
As rightly pointed out by his counsel, the defendant’s strongest mitigating factor is his plea of guilty, for which he will be given a one-third discount in sentence. His sentence after such a discount is one of 5 years 4 months’ imprisonment after rounding down.
The sixth and final step is to stand back and make an overall assessment in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of the offence and the offender.
Having considered the facts of the offence and the defendant’s background, I am of the view that the ultimate sentence of 5 years and 4 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
The final sentence I would impose on the defendant is one of 5 years and 4 months’ imprisonment.
Lastly, I can only hope that the defendant will stay true to his remorse and his determination to turn his life around for the better.