CRIMINAL CASE NO. 362 OF 2009
In relation to you, D2, you have pleaded guilty to possession of a relatively smaller quantity of cocaine found in a bedroom of the premises.
Neither of you is a stranger to drugs, D1 having a previous conviction for trafficking for which you received a sentence of 16 months’ imprisonment. Indeed, you were only discharged from prison in respect of that sentence on 21 January 2009, some five months before your arrest for these offences, and it is clear that you have been earning money since leaving prison by trafficking in drugs, because at the time you were unemployed.
D2, you also have a previous conviction for trafficking and possession of drugs, for which you received a sentence of 3 months’ imprisonment concurrent on each charge, and it is clear that you have, or had before your arrest, a drugs problem.
Neither of you therefore have clear records. But you have both pleaded guilty, and it is your pleas of guilty which are the single most important consideration in your mitigation, though both of your counsel have given me very full and helpful accounts of your backgrounds and how you came to be involved in your respective offences.
I deal first with D1. There are two counts against you involving between them three types of dangerous drug. I must be careful to ensure that by simply following tariff guidelines in respect of each individual drug I do not arrive at an excessive overall sentence, and Mr Tse has properly brought to my attention the case of HKSAR v Wong Kin Kau CACC269/2009 concerning the correct approach in such circumstances.
In respect of Count 1, of the drugs found in the kitchen of the premises, the quantity of ketamine is the most significant component for sentencing purposes. However, the herbal cannabis, which I have inspected, cannot be ignored either. As for the small quantity of cocaine in that count, it makes no difference to the sentence on Count 1, nor does it impact in any way on the sentence on Count 2, which concerns cocaine alone found in a storeroom of the premises.
In my view, the ketamine, for which the operative amount for sentencing purposes is 24.1 grammes, would attract a sentence after trial of 4½ years’ imprisonment, and the cannabis, 6 months’ imprisonment. After trial, the sentence which you would have expected on that count would be 5 years’ imprisonment.
Giving credit for your plea of guilty, the sentence on that count is 3 years and 4 months.
In relation to Count 2, the relevant quantity for sentencing purposes of cocaine is 76.91 grammes, for which the sentence after trial on this count would have been, in my view, 8½ years’ imprisonment.
Giving credit for your plea of guilty, the appropriate sentence upon your plea would be 5 years and 8 months.
Now it is necessary to make some adjustments to the overall sentence in the interests of the totality of that sentence, and I propose to order 1 year of the sentence on Count 1 to run consecutively to the sentence on Count 2, leaving the remainder of the sentence on Count 1 to run concurrently with the sentence on Count 2.
The effect is that the overall sentence will be, in your case, 6 years and 8 months’ imprisonment.
Turning to the 2nd defendant, I am persuaded by Ms Moosdeen that you are genuinely remorseful, and I am prepared to accept as genuine your desire as well to put your life in order with the help of your girlfriend, who is here today, and I am prepared to pass a sentence which will allow you your liberty fairly shortly, if not already, although that is a matter to be worked out by the Correctional Services Department.
The offence to which you have pleaded guilty is one of possession of a relatively small amount of cocaine, namely 5.47 grammes. However, it is not a minute amount. It was contained in 23 packets, and, as I have already observed, I note that you have a record for previous possession and also for trafficking. So there must exist a latent risk of that quantity contained in those plastic bags possibly falling into the hands of others, and that is a risk that cannot and should not be ignored.
Adopting the approach of the Court of Appeal in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, which has been helpfully drawn to the court’s attention by Ms Ko, I would have determined the starting point for your offence as one of 15 months’ imprisonment, which I would have enhanced, to take account of the latent risk factor which I have just addressed, by 6 months, making a sentence of 21 months’ imprisonment as a starting point.
Giving you credit for your plea, the sentence that I pass upon you in respect of Count 3 is one of 14 months’ imprisonment.
So would you formally, please, just stand, both of you.
D1, I sentence you to imprisonment for a period of 6 years and 8 months.
D2, I sentence you to imprisonment for a period of 14 months.