CRIMINAL CASE NO. 65 OF 2011
COURT: On the evening of 13 August last year police officers were conducting an operation in Tseung Kwan O when you, together with another male, were seen in the lift lobby, or entering the lift lobby, at Po Tak House. The two of you were intercepted. You were searched and in your possession was found the drugs which were subsequently analysed as containing 47.48 grammes of ketamine. Those were tucked in the waistband of your trousers. You were arrested and told the police that the other male with you had given you $200 to deliver the ketamine on his behalf. The $200 was apparently found in your possession as was a mobile telephone.
You then volunteered to the police that the other male had stored a bag of ketamine in your home and consequently the police took you up there where they located the second quantity of ketamine, 160.36 grammes. You were arrested for the offence of trafficking in that quantity of drugs and, again, you said that it was the other person who had placed them there. Now, that other person was charged with two charges of trafficking in a dangerous drug and resisting a police officer but those charges were subsequently abandoned.
You made a statement to the police which was recorded by way of video subsequent to your arrest in which you largely repeated what you had told them at the time of your arrest, pointing once again, clearly, to the involvement of the other male.
I do not know why the charges were withdrawn against that other male and it is certainly not appropriate for me to make any inquiries in that regard, but it does seem that subsequent to your being interviewed under caution by the police, you made a non-prejudicial statement earlier this year and you indicated that you would be prepared to testify against the other male. That is a matter to which I shall return in a moment when considering the question of mitigation.
You have been told that the court’s hands are largely tied with the type of sentences that are imposed in these cases because the Court of Appeal lays down tariffs. The quantity of drugs in respect of the 1st charge is such that falls within the recognised third band, which stipulates a period of imprisonment between 4 and 6 years up to 50 grammes. The amount of the drugs involved in the 1st charge is so close to the maximum that I would regard the appropriate starting point there as being 6 years’ imprisonment.
The second quantity of drugs falls in the fourth band, which prescribes between 6 and 9 years’ imprisonment. In my view, the appropriate starting point would be 7½ years’ imprisonment.
It is inappropriate simply to add together those two sentences because that would result in a disproportionately high sentence when the total quantity of drugs in which you were trafficking is taken into account. That total quantity was 207.84 grammes and looking at that total would, in my view, suggest a starting point, after trial, of 8 years 3 months’ imprisonment. So that is achieved by adding together the two amounts of the drugs rather than the two individual sentences.
You did plead guilty at the first available opportunity and that entitles you, on current sentencing practice, to a discount of one-third from the starting points for the two sentences, so the sentence on the 1st count will be, after discount, 4 years’ imprisonment and, on the 2nd count, after discount, 5 years’ imprisonment. From a notional aggregate starting point of 8.3 years a one-third discount would reduce that sentence to 5 years and 6 months.
In addition to the discount for the plea, Mr Mitchell, on your behalf, has urged that I consider giving you a further discount for your co-operation with the police and it seems to me the fact that you went so far as to make a non-prejudicial statement, it does entitle you to a further small discount. I am aware of the fact that you have offered to testify against others but the Court of Appeal has repeatedly said that a mere promise to testify does not, itself, warrant further discount.
I have to sentence you on what you have done so far and what you have done so far is to go further by providing additional information than would normally be expected and that is to be recognised. If a proceedings are instituted against another person and you do give evidence, it would then be open to you to apply to the Court of Appeal for leave to appeal your sentence out of time in order to secure an additional discount but it is not appropriate for me to give you an additional discount merely on a promise to testify.
It seems that the appropriate further discount for what you have done so far would be an additional 3 months reduction from the overall sentence which brings the aggregate discount to approximately 40 per cent, 39½, 40 per cent. Other than the plea of guilty and the additional discount for your co-operation, there is nothing in the commission of the offence or in your personal circumstances which warrant any further discounts.
Consequently, on Count 1, you are sentenced to serve a period of 4 years’ imprisonment; on Count 2, a period of 5 years’ imprisonment of which 1 year and 3 months are to be served consecutively to the sentence imposed on Count 1, resulting in an aggregate sentence of 5 years and 3 months’ imprisonment.
Defendant's application for leave to appeal the sentence dismissed by Court of Appeal. Please refer to CACC167/2011 dated 9 August 2011