COURT: The defendant is charged with one count of trafficking in a dangerous drug, namely 879.77 grammes of a solid containing 724.36 grammes of ketamine, which the police found in his residence in Nam Shan Estate on 11 September 2021. He pleaded guilty to the charge at the committal proceedings and accepted a Summary of Facts for that purpose. He appears before me today for mitigation and sentence.
The facts giving rise to the offence are as follows.
On 11 September 2021, acting on information, the police mounted an anti-dangerous drugs operation and searched the defendant’s residence at a room in Nam Shan Estate, Sham Shui Po. Upon search, 17 plastic bags or boxes of ketamine, as well as two paper trays containing ketamine, were found inside the premises. On the two paper trays, the ketamine powder were found to be laid in the open. The total quantity of the ketamine seized was found to contain 724.36 grammes of ketamine as the narcotic content.
The street value of the drugs was estimated to be almost $590,000 at the time of the offence.
Apart from the drugs seized, a large quantity of unused resealable plastic bags as well as one electronic scale were found inside the flat.
Under caution at the scene, the defendant admitted that he wanted to make some quick money and that the drugs found in the premises belonged to him.
In a subsequent video-recorded interview, he admitted under caution that he was the sole occupant of the premises and he was the only person who had keys to the premises. He admits now that he possessed all the drugs found in the flat for the purpose of trafficking.
Defendant’s Background
The defendant is 60 years of age, born in Hong Kong. He received education up to Form 3 level. At the time of the arrest, he worked as a taxi driver. He suffer from a minor medical condition, namely high blood pressure. He is single and as he admitted to the police, resides at the premises in question. According to his antecedents statement, he is not a drug addict and has no triad affiliation, which Mr Boey accepts on the defendant’s behalf.
In mitigation, Mr Boey informed the Court about the defendant’s background. He had been a taxi driver since 1990s and as a result of the social unrest and the COVID pandemic for the past few years, his income has been significantly reduced, as a result of which he could not meet the expenses of the taxi rental as well as other expenses for keeping his job as a taxi driver. As a result, in a moment of foolishness, the defendant committed the present offence.
In terms of his personal background, Mr Boey submitted in mitigation that the defendant was and is in stable relationship with a Ms Liu, who has two sons that the defendant treats as his own and supports financially. The defendant, I am told, plans to start or planned to start a family with Ms Liu in the future. Ms Liu is also present in court today, showing her support for the defendant. I am told by Mr Boey that Ms Liu wished to express her care of the defendant by her presence in court.
The defendant has a spent conviction for gambling in a gambling establishment back in 1992 and I am invited to treat the defendant as one of clear record, given the minor nature of the gambling offence of which he was convicted back in 1992 and in any event that is a spent conviction by now. I am prepared to accept that submission and treat the defendant as one of clear record.
Sentencing Considerations
The courts of Hong Kong have consistently taken the view that drug trafficking offences are very serious, and that is reflected in the lengthy sentences that have consistently been imposed upon defendants committing such trafficking offences, in particular, trafficking in large quantities of drugs. And the courts have laid down sentencing guidelines to facilitate a consistent approach in terms of sentencing these drug trafficking cases.
The sentencing approach in relation to drug trafficking offences has been set out clearly in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, involving a six-step approach.
First, the court must assess the gravity of the offence by looking at the type and quantity of drugs in question. The drug involved in this case is ketamine and the applicable sentencing tariff can be found in SJ v Hii Siew Cheng [2009] 1 HKLRD 1. In particular, for the amount of ketamine involved, which is between 600 and 1,000 grammes in weight, a starting point of between 12 and 14 years’ imprisonment would be appropriate.
Given the amount of ketamine involved in this case, 724.36 grammes of narcotics, the starting point on a strict mathematical calculation would be one of 12 years and 7 months’ imprisonment.
I have carefully considered the circumstances of the case. In particular, Mr Boey’s submission that notwithstanding the presence of packaging paraphernalia such as resealable plastic bags and the electronic scale, and given that the defendant was found to possess these amounts of drugs in his own residence, namely that he used his own residence to keep the drugs, the court may come to the view that there is no strong indication to suggest that the defendant’s participation in this drug trafficking activity was one which was akin to the role of an actual trafficker in the sense of a work as one commonly understand it.
I am prepared to sentence the defendant on the basis that he did not assume any role which is more culpable than that of a storekeeper or courier. And as such, I will not enhance the defendant’s sentence on the basis of his role. This is particularly so given the starting point that I have just identified which is 12 years and 7 months, itself a substantial period of imprisonment.
For the next step, I am required to consider whether there are any other aggravating factors which warrant an enhancement. I find there is none in this particular case.
Then I must take into account the mitigating factors in favour of the defendant. The only real mitigating factor that I find to be applicable to the defendant is his timely and early guilty plea. For that, I am prepared to grant him the full one-third discount, in accordance with the principles set out in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. This would reduce the starting point to a sentence of 8 years and 4 months. There are no further mitigating factors that would require a further reduction of that sentence.
As regards his personal circumstances and financial hardship, the authorities speak consistently that those matters count very little as mitigation and are, in any event, not justification for commission of a crime as serious as the trafficking offence in this case.
The final step requires me to step back and look at the overall sentence in order to ensure that it is fair, just, and balanced. Having considered all the circumstances, I take the view that the ultimate sentence of 8 years and 4 months’ imprisonment is proportionate to the defendant’s criminality and I therefore sentence the defendant to 8 years and 4 months’ imprisonment.