CRIMINAL CASE NO. 219 OF 2010
The defendant was stopped and searched by police who intercepted him on suspicion of his having left a drugs storage facility on the 1st floor of a building. Six packets of suspected dangerous drugs were found inside a pink plastic bag that he was carrying. When questioned he made no reply to the police. He was taken to the police station and further inquiries were made.
Subsequently, premises which were rented in the name of the defendant were searched and the police retrieved 11 packets and 17 transparent resealable plastic bags containing suspected dangerous drugs, an electronic scale and some drug packaging paraphernalia. The defendant revealed to police the hiding place for the keys to the premises. Subsequent analysis by the Government Chemist confirmed the quantities of drugs as set out in the charges.
When interviewed under caution the defendant admitted that he was a courier for the drugs found on him at the time of his arrest. They were part of a consignment of 5 kilogrammes of ketamine which he collected on behalf of his friend for storage two days prior to his arrest. He said he had received $2,000 from Ah Fei for his services. He told police that he was delivering the drugs on the instructions of Ah Fei at the time he was arrested. He admitted that he went to the premises where the second lot of dangerous drugs was found and he identified various exhibits seized by the police. The street value of the dangerous drugs is estimated at $1,270,080.
Subsequently the defendant gave evidence under an immunity against the man who was alleged to be the mastermind of the drug-trafficking venture. He gave evidence over a period of three-and-a-half days and was subjected to lengthy cross-examination. He gave evidence of how he had been recruited by the mastermind in September 2009, first as a salesman, and then from November 2009 he worked as a storekeeper and distributor of the drugs on instructions of the mastermind. He had known the mastermind as a friend since approximately August 2008, but although both of them were social abusers of drugs, it was only in September 2009 that his friend went into the business of drugs.
For his work as a salesman he told the court that he was paid $6,000 to $7,000 and for his work as a storekeeper he was paid almost $40,000. He told the court, when giving evidence, that initially he had given untrue statements to the police and it was not until he was assured of protection for himself and his family that he told the police full details of who he had been working for and details of the operation.
He told the court that he had been threatened by the mastermind as to what would happen to him if he ever revealed what the mastermind had been doing and there were threats also made to his parents. Once he was assured by the police that he would be given some protection and that his family would be protected, he gave a total of nine non‑prejudicial statements setting out details of what had happened in relation to the drug venture.
His evidence was the main evidence in the trial of the mastermind and the jury returned a unanimous verdict of guilty.
The defendant was aged 21 at the time of these offences. His date of birth is 24 March 1988. He had a clear record. He was educated in Hong Kong and completed Form 5. After he left school he worked as a salesman, a warehouse worker and a bartender. Prior to his arrest he was living with his parents, sister and his grandmother. His father is aged 54 years, his mother is aged 50 years and his grandmother is aged 83 and is said to be in a hospital suffering from a heart attack which occurred, according to the defendant, at the time she found out he was in this trouble.
I have had put before me letters from the defendant himself in which he expresses his remorse and sets out the reasons why he became involved in this offence. There is also a letter from his aunt seeking leniency for her nephew and offering assistance to him when he is released from jail. There is a hope that he will continue his studies in Australia. There is also a letter from a friend of his mother’s, who also lives in Australia, and says that she seeks leniency for him also and she would be supportive of him in any way possible to ensure that he gets assistance once he has to go back into the community.
Counsel for the defendant pointed out the difficulties that he had in making the decision to actually give information to the police about what he had been doing and what his mentor had been doing in relation to the drug trafficking. It was a courageous decision, particularly because he and his family were under threat. For those reasons, he is entitled to a substantial discount on sentence.
The strongest mitigation in this case is the pleas of guilty for which the defendant is entitled to the full discount, plus a further discount because of his co-operation with the police and, in particular, because of his giving evidence in the trial of the mastermind who was convicted on 6 April 2011.
The quantity of ketamine was almost 10 kilogrammes. Secretary for Justice Hii Siew Cheng [2009] 1 HKLRD 1 the guideline case for ketamine stops at 1,000 grammes and points out that the range for 1,000 grammes is 14 years and upwards. For the purposes of sentence in this case there is no international element that would require enhancement of the sentence. In assessing the appropriate term when dealing with the mastermind, I considered HKSAR v. Abdallah [2009] 2 HKLRD 437 which set a sentencing range for large quantities of drugs which could not be dealt with adequately or consistently by application of the guidelines in R v. Lau Tak Ming [1990] 2 HKLR 370.
In considering sentence I note that the Court of Appeal warns against proceeding to sentence by way of mathematical progression once the stated limit has been reached. I also take into account that the dangerous drug in this case is neither heroin nor cocaine, which are sentenced at slightly higher levels, but nevertheless the quantity of drugs involved at the time the defendant was arrested was very substantial and the sentence imposed must reflect that.
In respect of the 1st charge, I take a starting point of 6 years and give the defendant 50 per cent discount and sentence him to 3 years’ imprisonment for that offence.
On Charge 2, I take a starting point of 18 years, which is the starting point that I adopted when sentencing the mastermind. I discount that by 50 per cent to take into account the defendant’s co‑operation and the lengthy evidence that he had to give in court; evidence that he gave being fully aware of the threats that had been made against him and his family. In respect of the threats to him and his family, I consider that further discount is justified.
I bear in mind also that, while he is serving a prison term and on his eventual release, he will always be looking over his shoulder in case of possible retaliation. Further, it is likely that he will spend a large part of his prison sentence in confinement, either in a psychiatric unit, or a small unit so as to avoid any problems with retaliation. I reduce the sentence by a further 2 years to take that into account.
Accordingly, the sentence on the 2nd charge is 7 years’ imprisonment and I order that the two sentences run concurrently, making a total of 7 years.