COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug on 21 December 2021, outside No. 8A Hart Avenue, Tsim Sha Tsui, Kowloon, Hong Kong, involving 1,012.5 grammes of a solid containing 663.4 grammes of ketamine, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
Summary of Facts
The Summary of Facts are as follows.
On 21 December 2021, at about 4.57 pm, patrolling police in Tsim Sha Tsui saw the defendant standing next to a car parked outside No. 8A Hart Avenue. On sight of the police, the defendant boarded the car, and police subsequently intercepted him.
The police searched the defendant’s car and seized from various places of the car the following:
(1) 33 small plastic bags containing a total of 13.5 grammes of a solid containing 11.4 grammes of ketamine;
(2) one plastic bag containing 999 grammes of a solid containing 652 grammes of ketamine; and
(3) a total of HK$148,050 in cash.
Upon searching the defendant, the police also found two mobile phones and HK$612.4 in cash.
Upon discovery of the small bags of ketamine, the police cautioned the defendant. The defendant first claimed that the ketamine was for self-consumption. But upon further discovery of the large bag of ketamine, the defendant said that a friend gave the bag to him, and that his friend told him that someone would take the bag later and would give HK$1,000 to him.
At a later video-recorded interview, the defendant remained silent except for claiming ownership of the cash seized.
The police subsequently enquired with the car’s registered owner, Mr Yung, who runs a garage and lent the car in question to the defendant. Mr Yung confirmed that the car had no illegal items in it when he lent it to the defendant.
The defendant now admits that he was in possession of the ketamine seized in the car for the purposes of unlawful trafficking.
The street value of the ketamine seized as estimated by the police expert was HK$564,975.
Background of the Defendant
The background of the defendant is as follows. The defendant is now 34 years old. He received education up to Form 1. He was previously employed as a car mechanic, earning about HK$20,000 monthly, and was also a gym assistant instructor on a part-time basis, earning about HK$15,000 monthly. The defendant said that he subsequently lost both of his jobs between 2020 and 2021 owing to social unrests and the COVID-19 pandemic.
The defendant is not a drug addict, he has a fiancé, and he has one son and one daughter, both twins. As the twins were born prematurely in April 2020, they have faced medical problems since birth. The defendant is the main bread winner of his family. The defendant’s fiancé described the defendant as a good and responsible father and partner as well as a filial son, who spends a lot of time accompanying his fiancé, his children and his mother.
Consideration
The sentencing approach in trafficking cases was set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I will 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 drugs concerned. Following Secretary for Justice v Hii Siew Cheng [2008] HKCA 197, for quantities of 600 grammes to 1,000 grammes of ketamine, the sentencing band is 12 to 14 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. On the evidence, there is nothing to suggest that the defendant had any role beyond the culpability of an ordinary courier.
The third step of the sentencing exercise is to identify where in the relevant band the defendant falls into. This would yield a starting point for the sentence. In respect of this defendant, trafficking in 663.4 grammes of ketamine, the proper starting point on a strict arithmetic calculation is 12 years and 3 months’ imprisonment after rounding down.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance the starting point. The defendant has two previous convictions of possession of dangerous drugs. However, according to HKSAR v Wan Wai Lun [2018] HKCA 30 at paragraphs 18 to 20, previous convictions for possession of dangerous drugs is not an aggravating factor for a sentence on drug trafficking. As such, I do not consider the defendant’s previous convictions as an aggravating factor.
The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence, bearing in mind that personal circumstances for this offence generally count for little.
From the letters from the defendant and his fiancé, it was explained to me that the defendant’s family’s financial difficulties and the complications faced by the defendant’s children upon birth led the defendant to resort to dealing in dangerous drugs to make some quick money.
However, the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44, stressed the seriousness of drug trafficking and the problems that it brings to families and the serious harm it causes to society. Particularly, the Court of Appeal in Abdallah stated that:
“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally - dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”
Accordingly, the defendant’s personal circumstances do not constitute mitigating factors. The only mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point which brings the sentence to 8 years and 2 months’ imprisonment.
You are sentenced to 8 years and 2 months’ imprisonment.