CRIMINAL CASE NO. 140 OF 2009
COURT: On 24 April of this year the defendant pleaded guilty at the Eastern Magistrates Court to one charge of trafficking in a dangerous drug, contrary to s.4(1)(a) and (iii) of the Dangerous Drugs Ordinance, Cap. 134.
The particulars of the charge alleged that on 25 November 2008, at Room 3 on the 2nd Floor, Hing Fook Lau, 54 Ngan Fung Street, Wong Tai Sin, in Kowloon, he trafficked in a dangerous drug, namely 544.12 grammes of a powder containing 87.94 grammes of ketamine, and 10.15 grammes of a crystalline solid containing 10.09 grammes of methamphetamine hydrochloride.
At the time he pleaded guilty. He admitted the summary of facts, which supported the charge. On 16 June this year, before me, he confirmed his plea of guilty and that summary of facts. The summary of facts revealed that late in the evening, on 25 November 2008, police officers saw two males come out of Room 3 on the 2nd Floor of the Hing Fook Lau at 54 Ngan Fung Street, Wong Tai Sin. One of those males was the defendant. The other was a male surnamed Yau.
The police officers intercepted the two men, and they were both searched. The defendant was found to be in possession of a paper bag which the police officer examined, and inside they saw what they suspected to be dangerous drugs. Both men were arrested and cautioned. The defendant said in response, and I quote: “Ah Sir, the “K Chai” and Ice are for my own consumption. It has nothing to do with my friend. Just arrest me and leave it at that.”
When Yau was searched there was nothing suspicious found upon him, and he denied, after having been cautioned, any knowledge of the contents of the paper bag that the defendant was in possession of. The original police suspicions proved to be correct, and a subsequent analysis of the contents of the paper bag revealed that they contained 544.12 grammes of a powder containing 87.94 grammes of ketamine and 10.15 grammes of a crystalline solid containing 10.09 grammes of methamphetamine hydrochloride. Those drugs, it has been subsequently established, were valued at respectively, in the case of the ketamine, $68,559, and the methamphetamine hydrochloride $7,013.
Notwithstanding the seriousness of the offence, on the last occasion I adjourned the sentencing of the defendant to today to allow me to be provided with a background report. At the time of making that order I made it abundantly clear to the defendant that this was not an indication that I was likely to consider sentencing options other than an immediate custodial term, but because I felt that it would be of assistance to me to know something of the defendant’s background.
That report is now available and has been provided to both the prosecutor and those representing the defendant, and I am advised the contents, albeit with a minor correction, have been confirmed by him. From that report and from the Antecedents Statements, and the matters that have been brought to my attention in mitigation, the salient features of the defendant’s background are as follows.
He was born in Hong Kong on 31 October 1991. He is not yet 18 years of age. He has been in trouble before. In February of 2006 he was dealt with by a way of a warning for an offence of theft. On 24 June 2008 he was placed on probation for an offence of possession of dangerous drugs. I am told that on that occasion the drugs concerned were yet again ketamine.
From that background report I discern that the defendant, whilst in his earlier years, lived an uneventful existence. By the time he had reached secondary school problems in his behaviour were emerging. His academic performance plummeted, and generally his behaviour at school and at home deteriorated. He left school after Form 3.
In January of 2008. He was placed on probation for the offence of possession of dangerous drugs. He attended supervised accommodation for a period of some three months and was subsequently discharged under supervision. It is apparent that towards the end of that supervision period the defendant was yet again abusing dangerous drugs, and on one occasion his urine positively tested for traces of cocaine. It is apparent, likewise, that this offence was committed towards the end of that period of probation.
The defendant has, in a very short space of time, embarked on an all too familiar course, commencing with the abuse of dangerous drugs, becoming himself addicted to dangerous drugs, and then resorting to the trafficking in them. In a person of his age - he is not yet 18 years - this is the matter of utmost concern. Nevertheless, the Court of Appeal is clear and unambiguous and that penalties of terms of imprisonment must almost inevitably be imposed in the circumstances of the commission of this particular offence, notwithstanding the age of the defendant.
I say in passing it is also manifest that he is not a person who can pray in aid any mitigation based on his age. He is not a person of extreme youth.
Alternatives to an immediate term of imprisonment are not appropriate in the circumstances of this case. For this quantity of ketamine standing alone, a starting point for sentence after trial in excess of 6 years would be appropriate in the light of the existing sentencing guidelines.
For this quantity of methamphetamine hydrochloride, a starting point for sentence after trial of 7 years would be justified. I do not consider that it would be appropriate to add up the respective starting points to determine the starting point for the individual drugs to determine the appropriate starting point in this case. If that approach were adopted, a starting point of almost 14 years would have to be adopted. That would be excessive in the circumstances.
It is in my mind appropriate to adopt the combined approach which has been referred to by the Court of Appeal in HKSAR v Yip Wai Yin [2004] 3 HKC 367. It is to my mind appropriate taking the most serious of the two drugs as a basis of the starting point, to then determine an appropriate starting point from which the defendant is entitled to a discount of one-third for his plea of guilty.
It is accepted by Mr Lau on behalf of the defendant that notwithstanding the quantity of the drugs concerned, the methamphetamine hydrochloride is the most serious of these two drugs. The starting point, as I have indicated, for sentencing for this quantity of methamphetamine hydrochloride after trial, would be one of 7 years. I must then consider whether this should be enhanced by reason of the very large quantity of ketamine. I am satisfied that it should, and that it should be enhanced by two years to reflect the gravity of the trafficking in the ketamine. This would bring me to a starting point of 9 years’ imprisonment.
There is nothing in the circumstances of the commission of the offence, nor of the defendant’s own circumstances, which would justify a discount from that in excess of the usual one-third which is provided for his plea of guilty. That discount would then result in a sentence of 6 years’ imprisonment. And that is the sentence that I will be passing on the defendant.