CRIMINAL CASE NO. 127 OF 2011
COURT: The defendant, Yim Hung-lui, Ricky, was charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
At around 8 pm on 11 September 2010, the defendant, who had rented a room, that is Room B, at Flat C, 2nd Floor of a building, at No. 240 to 244 Lai Chi Kok Road, was intercepted by the police at the staircase of the said building because of his furtive manner. Upon search, the police found a plastic bag containing 27.37 grammes of a crystalline solid containing 26.8 grammes of methamphetamine hydrochloride and two resealable packets containing a total of 27.27 grammes of a powder containing a total of 22.67 grammes of ketamine.
Under caution, after arrest, the defendant admitted that he had bought the ice and ketamine and asked for a chance. That is the 1st count.
At about 8.10 pm, the police executed a search warrant at the premises rented by the defendant. The police found a quantity of drugs and paraphernalia, namely:
(a) 21 plastic bags containing a total of 5.16 grammes of a solid/powder containing 4.56 grammes of cocaine;
(b) Two plastic bags containing 1.12 grammes of cannabis in herbal form;
(c) Two foil packs containing a total of 20 tablets containing 0.12 grammes of nimetazepam;
(d) One plastic bag containing two tablets containing a total of 7 milligrammes of methamphetamine;
(e) A pair of pliers;
(f) A cigarette roller;
(g) An electronic scale;
(h) 300 transparent resealable plastic bags;
(i) Two “ice bottles”; and
(j) Two pieces of aluminium foil.
That is for the 2nd count.
The defendant admitted, when interviewed by the police, that the drugs and the equipments were all bought by him. The value of the drugs was estimated at HK$30,106. The defendant admitted that the drugs seized from him and from the rented premises were for trafficking.
Background and Mitigation
The defendant is a single man, now 42 years of age. He was born in Shanghai and came to Hong Kong in 1988 to join his parents. After his father passed away, his mother went back to live in Shanghai to take care of her mother - that is his grandmother - who was paralysed in her lower limbs. The defendant stayed in Hong Kong and did various manual jobs.
The defendant had been a drug addict for 20 years and had a number of convictions. He had appeared in court on 13 occasions and had eight convictions related to possession of drugs or possession of equipment for taking drugs. He also had one conviction of trafficking in a dangerous drug in 2004, for which he was sentenced to 4 years 10 months’ imprisonment.
In mitigation, counsel for the defendant, Mr Niehorster, told me that the defendant’s grandmother is now paralysed in her upper limbs as well and the defendant tried to make some quick money, hence he committed the present offences.
After going through various authorities relating to the sentencing guidelines for trafficking ice, cocaine and ketamine, Mr Niehorster asked me to adopt the combined approach and not to enhance the sentence too much in relation to the defendant’s previous trafficking in a dangerous drug conviction due to the long lapse of time.
Trafficking in a dangerous drug is a serious offence. On conviction on an indictment a person is liable to a fine of $5 million and to imprisonment for life. First of all, although the defendant was convicted of two counts of trafficking in a dangerous drug, on the facts of this case it would be proper for me to deal with all the drugs together and pass a concurrent sentence.
This case involves a trafficking in cocktail drugs; cocaine, ice, ketamine, cannabis and tablets containing nimetazepam and methamphetamine. The Court of Appeal has set down guidelines for the trafficking of cocaine, ice, ketamine and cannabis. With reference to the quantity involved in this case, the guidelines are as follows:
(a) Ice 26.80 grammes, 7 to 10 years, the band is 10 to 70 grammes, authority Ching Kwok Hung;
(b) cocaine 4.56 grammes, starting point 2 to 5 years, the band is up to 10 grammes, authority is Pedro Nel Rojas adopting the guidelines in Lau Tak Ming for heroin;
(c) ketamine, 22.67 grammes, 4 to 6 years, that is the band 10 to 50 grammes, the case is Hii Siew Cheng;
(d) cannabis, 1.12 grammes is up to 16 months, the band is under 2000 grammes, the authority is Tuen Shui Ming. (The tariff was for cannabis resin, so downward adjustment was required for cannabis in herbal form due to the lower THC concentration);
There is no tariff for tablets containing nimetazepam and methamphetamine.
For the trafficking of cocktail drugs there are two sentencing approach open to the sentencing judge. The first is an “individual approach” where each component in the cocktail drugs is looked at to establish the sentence relevant to each individual drug before an appropriate adjustment to the overall sentence is made. The second is a “combined approach” where a sentence for the most serious drug would be calculated before making an upward adjustment to take into account significant quantities of the other less serious drugs in terms of their potency: Yip Wai Yin.
If one were to adopt the individual approach in this case, just the trafficking of ice, cocaine and ketamine and leaving aside the herbal cannabis and the various tablets, one would already be looking at a total starting point of around 16 years before applying the totality principle to adjust the said starting point.
Having considered the circumstances of this case and the various drugs involved, I am of the view that the combined approach is more appropriate here.
When I come to decide where I should pitch the starting point, apart from the circumstances of this case I would also take into account the fact that the defendant is not a first offender; in particular, he had a previous conviction of trafficking in dangerous drugs already. I do bear in mind, however, there were no other aggravating circumstances in this case, such as there was no international element, the defendant was not the mastermind and no juveniles were involved.
The most serious drug here is ice, which, in the circumstances, attracts a starting point of 8 years. While cocaine does not attract the same starting point as ice, it is almost on a par with ice in terms of potency. Ketamine is less serious and less potent in comparison.
For the purpose of sentencing, I will not take into account the herbal cannabis, nor the tablets, to arrive at the proper starting point. In my view, the starting point of 8 years should be upwardly adjusted to one of 12 years to take into account the other drugs, such as cocaine and ketamine.
The defendant had pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. There are no other reasons to further reduce the sentence. The medical condition of his grandmother was not such that I should exercise my discretion to further reduce the sentence.
The actual sentence
For the 1st charge, the defendant is sentenced to 8 years’ imprisonment; the second charge, also 8 years’ imprisonment,
both sentences to run concurrently, making a total of 8
years.
Please refer to CACC266/2011 for the relevant appeal(s) to the Court of Appeal.