CRIMINAL CASE NO. 7 OF 2010
COURT: You have pleaded guilty to two offences of trafficking in a dangerous drug, namely ketamine, the amounts being, for sentencing purposes, on Count 1, 1,664.81 grammes, and on Count 3, 33.35 grammes. You have also pleaded guilty to a further count of possession of ketamine, the amount concerned being 2.87 grammes.
The drugs in Count 1 were found in a bag you were carrying when you were intercepted while entering Hong Kong from the Mainland at Lo Wu Control Point. The drugs in Count 3 were found in your premises in Tuen Mun where, in addition to 33.35 grammes of ketamine, were found an electronic scale and a bundle of empty plastic Ziploc bags.
Your counsel, Mr Chan, realistically accepts, as you do by your plea, that most of those drugs were for trafficking purposes, although I am prepared to accept from what I have learned about you that a limited portion of those drugs in Count 3 would have been for your own consumption. Indeed, you indicated to the police under caution that the drugs in the premises were for your own consumption.
So far as the 2nd count is concerned of the simple possession of 2.87 grammes of ketamine, they were found in your jeans as you were entering into Hong Kong at the border. Plainly, from the way they were found and in the quantity in which they were found, they were for your own consumption and the prosecution clearly and properly accepts that.
Nevertheless, the drugs in Count 1 and the bulk of the drugs in Count 3 for trafficking are, together, a sizeable amount well over the limit envisaged in the guidelines set out in The Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD at 1.
In addition, in relation to the drugs in Count 1, there is the element of cross-border importation into Hong Kong which has been recognised as an aggravating feature in HKSAR v Abdallah Anwar Abbas, Criminal Appeal No. 304/2008. I assess that aggravating feature as justifying an increase on the starting point on your sentence for Count 1 of 1 year imprisonment.
Mr Chan has said everything he can say on your behalf and realistically accepts that you must go to prison for a long time. He impresses on me your remorse, which I accept, and that you intend to make good use of your time in prison. He has told me about the family you come from and I am impressed that they are all here in court today and by the sensible assessment of the situation and your predicament by your cousin, Mr Mak Ching-man, in his letter to the court.
I have already accepted that you are a drug addict, or were at the time, and while that does not excuse or mitigate your crimes, it does at least explain why someone of your background, with a clear record, should become involved in such an extremely serious offence which ought to have been out of character for you and someone from that background.
The biggest consideration in mitigation in your case is, of course, your plea of guilty. It is said that good character has little or no effect in crimes of this seriousness. Whilst recognising that statement, I can, in the light of your plea, give you a small discount in recognition that you have arrived at the age of 29 years of age with a clear record.
The sentences that I pass upon you are as follows. In relation to Count 1, the starting point for that quantity of ketamine I assess at 16 years’ imprisonment, which I enhance by 1 year for the trafficking across borders element, making a starting point of 17 years’ imprisonment. Giving you a one-third discount for your plea, the sentence on Count 1, subject to further adjustment which I shall mention, would be 11 years and 4 months’ imprisonment.
That further adjustment is one of 2 months’ imprisonment in recognition of your clear record and other mitigating matters which I have heard about this morning. The resulting sentence on Count 1 will be 11 years and 2 months’ imprisonment.
In relation to Count 3 in which I have accepted that some, albeit a limited amount or quantity, of the drugs were for your own consumption, I assess the starting point at 4 years’ imprisonment. Giving you a one-third discount for your plea, the sentence is 2 years and 8 months.
I would be entitled to make some of that sentence partly consecutive and partly concurrent with the sentence on Count l; however, the reality is that Count 1 is the most serious of the three offences and were all the drugs added together in a single count, they would not materially affect the starting point I have chosen in respect of Count 1. Accordingly, I shall order that the sentence on Count 3 will run concurrently with the sentence on Count 1.
In relation to Count 2, the starting point for sentence would be 2 years’ imprisonment which, with a one-third discount, would make 16 months. I also order that sentence to run concurrently with the sentences on Counts 1 and 3.
The sentence, therefore, of the court is that you serve a prison sentence of 11 years and 2 months’ imprisonment.