CRIMINAL CASE NO. 12 OF 2010
COURT: The 1st defendant pleaded guilty before me to an offence of trafficking in 1.5 grammes of ketamine, the 1st offence. And the 2nd defendant to an offence of trafficking in 114.43 grammes of ketamine and 19.56 grammes of 3,4-methylenedioxymethamphetamine, that is ecstasy, the 2nd offence.
The facts of the 1st offence were that the 1st defendant was intercepted by police as he was walking out of a building in Tsim Sha Tsui. He was searched and the drug, the subject of the offence, was found in three re-sealable plastic bags in his trouser pocket. He was arrested. The facts of the 2nd offence flow on from those.
The 1st defendant was then taken back inside the building to a flat in the premises. Inside the flat, police found the 2nd defendant sitting next to a table on which were a significant number of plastic bags containing the drugs, the subject of the 2nd offence, together with various packaging paraphernalia.
I will deal with the 1st defendant. The defendants have been in custody since their arrest on 8 September 2009. That means the 1st defendant has already been in custody for more than 10 months before the prosecution today offered no evidence against him in respect of the 2nd offence with which he was originally charged.
Under the guidelines set out in Secretary for Justice v Hii Siew Cheng an appropriate starting point of sentence for trafficking in this relatively small quantity of ketamine, the subject of the 1st offence, would be 27 months’ imprisonment.
Given an appropriate discount for his plea the end sentence would result in 18 months’ imprisonment. Almost certainly a good behaviour allowance would reduce that to 12 months’ imprisonment, that is, to a level which would give the defendant only a few weeks more in prison should I impose a custodial sentence.
On that basis Mr Philip Chau suggests very responsibly that a proper alternative to a sentence of imprisonment would be a probation order. That would benefit the 19 year old defendant in a way that a further few weeks in prison would not. However on balance I think a probation order in the circumstances not to be the preferable course.
The defendant has nearly served the term of any sentence likely to be imposed upon him, assuming he receives a full good behaviour allowance. But more importantly, I am concerned that the 1st defendant was sentenced to an 18 month period of probation in June of 2007, again, for trafficking in dangerous drugs. That period of probation was unsuccessful, the defendant committing the present offence less than a year after that period of probation ended.
Accordingly, I regard a custodial sentence as the more appropriate. It is one level up from the previous probation order and properly reflects the seriousness of the 1st defendant trafficking in drugs after having previously received a probation order for a similar offence.
So far as the 1st offence is concerned, I take a starting point of sentence of 27 months’ imprisonment. The only substantial mitigation in respect of this offence is the 1st defendant’s plea of guilty. Accordingly, that starting point is discounted to a sentence of 18 months’ imprisonment.
I will turn now to the 2nd defendant. So far as the 2nd offence is concerned, I take a starting point of sentence of 7 years’ imprisonment. In adopting that starting point, I appreciate the drugs, the subject of the offence, formed a cocktail but sentencing of each is the same under the guidelines suggested in the Secretary of Justice v Hii Siew Cheng and I proceed on the basis the total amount of narcotic is 133.99 grammes.
The only mitigation of substance available to the 2nd defendant is his plea of guilty. He is entitled to a full discount in that regard and he is sentenced to 4 years 8 months’ imprisonment.