CRIMINAL CASE NO. 377 OF 2010
COURT: On 15 April 2011 the defendant pleaded guilty to a single count of trafficking in a dangerous drug.
On the rooftop of a village house in Tsuen Wan, on 25 June 2010, the defendant and another man called To were seen by two police officers standing by a table on which was placed a red and white bag which the defendant had earlier been seen carrying into the house. The man, To, was seen counting a wad of bank notes, totalling just over HK$10,000. When they approached and the red and white bag was inspected by one of the officers, the defendant suddenly snatched hold of it and threw it over the roof. He was immediately subdued and handcuffed and the bag retrieved.
The bag contained the drugs particularised in the indictment. The relevant quantity, for sentencing purposes, is 175.98 grammes of ketamine with an estimated retail value of $28,398. Although To was originally arrested he was eventually released by the police and was not prosecuted.
On 15 April this year, pursuant to an application by the defence, I adjourned sentence pending further inquiries and action by the police consequent on the defendant having given a non-prejudicial state near to the police on 29 September last year in connection with To’s involvement in the case. I have been informed that since the last hearing, To had been arrested and charged with one count of trafficking in a dangerous drug based upon the intended evidence of the defendant. However, the defendant has since changed his mind and indicated that he will not testify against To. According, the count against To has been withdrawn.
The position is, therefore, that the defendant has not ultimately provided any tangible assistance to the prosecution. I shall, therefore, proceed to sentence him on the basis of his plea and the Summary of Facts which have already been admitted. I make it quite clear that I shall not in any way hold against him the fact that he has decided not to give evidence against To.
The appropriate range of sentence for 50 to 300 grammes of ketamine narcotic is 6 to 9 years’ imprisonment, after trial, under the guidelines set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In my judgment, trafficking in 175.98 grammes of ketamine in the circumstances of this case would merit a starting point of 7½ years’ imprisonment.
The defendant pleaded guilty when the indictment was first put to him and for that he is entitled to a full one-third discount from that starting point. He does not have the benefit of a clear record – indeed, he has a relevant previous conviction - so his guilty plea is really the only mitigation which can be advanced on his behalf. Having said that, I am very impressed with the letters and the commitment of his family who are no doubt a good family and are bewildered that the defendant could have fallen so far, so young, when he had been making obvious progress in this life since his last offence before the court when he was placed on probation. Clearly, he has fallen victim to the influence of some bad peer pressure.
I am aware of his young age but the courts have said time and time again that youth is not a mitigating factor with a case of such seriousness and I would be failing in my duty if I did not abide by the directions of the higher courts, which endeavour to give consistency to sentences in drugs cases.
In all the circumstances the defendant will go to prison for 5 years.