CRIMINAL CASE NO. 392 OF 2009
The 1st defendant had pleaded guilty to the 1st charge but he denied the 2nd charge. The prosecution refused to offer no evidence on the 2nd charge and there was a trial. Having heard the evidence, the jury unanimously convicted the 1st defendant on this 2nd charge. Obviously, the jury had rejected the defendant’s testimony that he had no knowledge and control of the drugs found inside the premises. They had also rejected the evidence of the 2nd defendant who had testified for the 1st defendant during the trial.
What had transpired in this case was basically that when the 1st defendant was going to meet up with the 2nd defendant, they were stopped by the Customs officers in the street in Mongkok on the evening in question. The drugs referred to in the 1st charge were found on the person of the 1st defendant, and to this charge, the 1st defendant had pleaded guilty.
Then he was taken up together with the 2nd defendant into a unit in a nearby building. There, the drugs referred to in the 2nd charge were found on a table inside the unit. The 1st defendant claimed he had nothing to do with such drugs, but then the jury had found him guilty.
The two sets of drugs found were both ketamine and the amounts were 429 grammes and 470 grammes respectively. The relevant authority in relation to sentencing for this kind of drugs would be the Court of Appeal case of Hii Siew Cheng. If the two charges were to be considered separately, the amounts of ketamine would both be in the category of 9 to 12 years each.
The appropriate starting point would be, in my view, 10 years each. However, if the court were to treat the two amounts of drugs as one, that would put this case in the range of 12 to 14 years. More specifically, the appropriate starting point would be that of 13½ years.
The slight complication here is that the 1st defendant had pleaded guilty to one and was convicted of the other charge. If this court were to follow the usual approach in sentencing, then 10 years each would be adopted for the two charges and there would be a one-third discount for the 1st charge because of the plea, but there would be no such discount for the 2nd charge. That would mean 6 years and 8 months for the 1st charge and 10 years for the 2nd charge.
If this court were to order a consecutive sentence, the total sentence would be 16 years and 8 months, but that would obviously be an excessive sentence as the combined amount should only attract a starting point of 13½ years, as I have said earlier. However, if the court were to order both terms to run concurrently, that would appear that the defendant only had to serve the sentence for the convicted charge.
Having reflected on the situation, I have decided that 1 year from the 1st charge is to run consecutively with the 2nd charge. Therefore, the sentence for these two charges would then be 11 years. This result, I believe, would sufficiently reflect that the defendant had pleaded guilty to one of the charges and also reflect the totality principle.
I do accept that the 1st defendant is still young but he is not so young where the court should exercise clemency and give him a further reduction. I can see no other mitigating factors which could be considered in his case, despite what his counsel has said.
As to the 2nd defendant, he had pleaded guilty to the 2nd charge and the prosecution had offered no evidence against him on the 1st charge. For the amount of ketamine involved, I believe 10 years would be the appropriate starting point.
I have anxiously considered whether a higher starting point should be used as the defendant had, in his evidence, admitted serious involvement with drug-trafficking activities previously. However, I came to the conclusion that I would not increase the starting point based on what the defendant has said in evidence as the jury had obviously found him unreliable. Hence, I have decided to simply focus on the amount of drugs as the sentencing basis.
Having granted the usual one-third discount, the sentence will be 6 years and 8 months. I also see no other factors that could justify a further reduction.
Hence, for the 1st defendant, the 1st charge, 6 years 8 months. 2nd charge, 10 years. One year of the 1st charge is to run consecutive to the 2nd charge. The total sentence is 11 years.
For the 2nd defendant, the 2nd charge, 6 years and 8 months.