CRIMINAL CASE NO. 324 OF 2010
COURT: The defendant pleads guilty to two charges of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.
He was seen to have handed a brown paper bag to another male person then boarded a taxi and left. That other male was intercepted and drugs were found inside that brown paper bag. The defendant was followed by police officers and was intercepted in Lok Ma Chau. Inside the bag that he was carrying were two bags of drugs and a piece of paper with the other male’s mobile phone number.
The defendant admitted that he was a drug courier for a reward of $800 per delivery. He admitted that he had earlier on delivered a bag of drugs and then he was on his way to deliver another consignment.
Upon analysis the drugs which he had handed to the other male was found to weigh 989.3 grammes containing 839.69 grammes of ketamine. The drugs in his possession weigh 975.55 grammes of a powder containing 818.47 grammes of ketamine. The retail value of the total amount of drugs involved was HK$235,782.
The defendant is now aged 53. He has three previous convictions, none of which are drug related. They all involve gambling charges and are ancient in nature.
By way of mitigation, defendant’s counsel submitted that the defendant had been divorced for over eight years. He has been doing various jobs and contributing a large part of his income to his ex-wife and sons. It is said that he was unemployed recently and it was his stringent financial condition which led him to commit the present offence.
In sentencing the defendant I have taken into account the nature of the offence, the drugs involved, its quantity and the sentencing tariff. I have also taken into account the defendant’s guilty plea and mitigation forwarded as well as perused the letter in mitigation written by his elder son.
Normally for a case where two charges of trafficking are involved, for the purpose of sentencing the narcotic content of those drugs would be added together before considering a global starting point. The total amount of drugs involved in the present case in the two charges add up to approximately 1.7 kilograms with an appropriate starting point to be in the region of 16 years.
The 1st charge relating to 839.69 grammes of ketamine involve this defendant and another male who is, for all purpose of today’s sentence, a minor. Prosecution seeks enhancement of sentence relating to that charge pursuant to section 56(a) of the Dangerous Drugs Ordinance on the basis that the defendant had used a minor to traffic in dangerous drugs.
Now, separately considering the two charges, the appropriate starting point, considering the narcotics in each charge, would be 13 years for each charge. After the one-third discount for his guilty plea, the sentence after discount should be 104 months. The courts have repeatedly said that exploitation of a minor to traffic in dangerous drugs will receive a severe sentence and the enhancement can well be over 50 per cent.
Mr Wong, for the defendant, has asked me to distinguish the facts of this case from other cases attracting higher enhancements. He asked me to take into account the following points: first, the minor in this case was 17 years old and not far from the age of an adult; secondly, that there was no evidence that the defendant had intentionally used the minor to deliver the drugs; and thirdly, that there was no cross-border or international element involved in the present case.
Having considered the circumstances of this case, I am of the view that an enhancement in respect of the 1st charge to 12 years is appropriate, that is an enhancement in the region of about 38 per cent.
I then turn to consider the overall sentence. Having considered the totality principle I consider that a global sentence of 14 years, after plea, will reflect the criminality in respect of the two charges. To achieve that, I shall order 2 years out of the 104 months in respect of the 2nd charge be served consecutively to the sentence of 12 years in respect of the 1st charge.
Please refer to CACV211/2011 for the relevant appeal(s) to the Court of Appeal.