CRIMINAL CASE NO. 248 OF 2011
COURT: On 8 July the defendant pleaded guilty at the Eastern Magistrates’ Court to two charges both of which were trafficking in dangerous drugs. On that day he admitted a Summary of Facts which was read in open court.
As a consequence those charges were then transferred to this court for sentence. Today before me he maintains his pleas of guilty and once again confirms that Summary of Facts.
The two charges alleged as follows: The 1st charge, Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
The particulars of the offence alleged that the defendant on 26 January 2011 at the 1st floor of the Car Park at Eastway Tower, Nos. 59-99, Shau Ka Wan Main Street East, Shau Kei Wan, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 3,090 grammes of powder containing 1,460 grammes of ketamine.
The 2nd charge alleged that at the same time and place he also trafficked in a powder which contained 4,590 grammes of ketamine.
As can be seen from the above the total quantity of the drugs involved taking both charges together is 6,050 grammes of ketamine.
The Summary of Facts revealed the following. On 26 January 2011, officers from the Customs & Excise Department were on duty inside the public car park which is referred to in the two charges.
At about 1.30 pm the defendant drove a motor car, registration No. JY 5316, into that public car park and he parked that car next to another car, registration No. NP 3626. He alighted from the car that he was driving. He took with him a brown paper bag and he placed that in the boot of the other car. He returned to his own car and prepared to leave the car park.
He was then apprehended by the waiting Customs & Excise Officers. Both of the motor vehicles were searched. In the motor car that he was driving there was another brown paper bag, similar to the brown paper bag which he had placed in NP 3626.
The Customs & Excise Officers suspected after examining both paper bags that they contained suspected dangerous drugs. Those suspicions proved to be correct. The subsequent analysis of the contents of the brown paper bag that he had placed in motor vehicle, NP 3626, was determined to be 8,950 grammes of a powder containing 4,590 grammes of ketamine and that is the particulars of Count 2.
The brown paper bag which was found inside his own motor vehicle when he was apprehended was likewise subsequently determined to contain 3,090 grammes of a powder which in turn contained 1,460 grammes of ketamine.
When arrested the defendant admitted that he knew that both paper bags contained dangerous drugs, namely ketamine. The Summary of Facts reveals that the total value of the ketamine in both counts is in excess of $1,350,000.
The defendant is aged 33. As is rightly pointed out by his counsel he has pleaded guilty at the earliest opportunity. He has prior convictions, none of which is in any way connected with the offences with which he is now convicted. In 1996 he was convicted of theft and in 2009 he was convicted on two occasions of managing a vice establishment.
Mr Szeto has informed me that he has endeavoured to assist the authorities in respect of the dangerous drugs activities with which he was involved. Nevertheless, unfortunately, all of the information which he was able to provide to them was information which they were already aware of. No assistance can therefore be obtained by reason of this. Mr Szeto readily acknowledges that fact.
The defendant himself has written to the court seeking to explain why it is that he became involved in the trafficking in dangerous drugs. It suffices to say that he indicates in a letter that has been read to me this day that it was a consequence of his ill health that he resorted to this course of conduct.
Coming now to what is the appropriate sentence to be imposed. Mr Szeto acknowledges that the maximum discount that this defendant is entitled to from a starting point for sentence after trial would be one-third. I agree with that submission. That then brings me to a consideration of the sentencing guidelines that have been provided by the Court of Appeal for those convicted of trafficking in the dangerous drug ketamine.
In June of 2009 the Court of Appeal delivered its judgment in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLR Digest, page 1. That provided assistance to those who sentenced traffickers in ketamine. The guidelines, however, run out at 1,000 grammes. The sentence recommended for those trafficking in 1,000 grammes of ketamine after trial is one of 14 years and upwards.
It is apparent, it is manifest from the quantities here, that the guidelines whilst of assistance do not provide specific parameters for sentencing. This same problem arose in recent years in respect of the guidelines for sentencing in heroin.
R v Lau Tak Ming [1990] 2 HKLR 370, set down guidance for those convicted of trafficking in heroin.
It has become apparent in recent years that the cut-off point provided for in those guidelines, namely, 600 grammes, that insofar as the 600 gramme upper limit was concerned there were emerging a number of cases where sentencing judges were faced with quantities far in excess of that amount.
As a consequence in March of 2009 the judgment in HKSAR v Abdallah was handed down and with respect to the guidelines for trafficking in quantities of heroin in excess of the 600 gramme upper limit in
Lau Tak Ming, additional assistance was provided for sentencors. Those extended guidelines provided a range of sentences based on the weight of the dangerous drugs.
It is appropriate, in my opinion, to seek if possible to apply the reasoning in
Abdallah to the guidelines provided for in Hii Siew Cheng. Having said that, one must observe immediately that we are talking about an entirely different drug.
Nevertheless I am satisfied that it is appropriate to consider the approach adopted by the Court of Appeal in
Abdallah and seek if possible to apply that to the ketamine guidelines.
I am satisfied by that course that when one looks at the total quantity of drugs in the instant case, that is 6,050 grammes, this amount is six times the cut-off point for the original guidelines provided for by the Court of Appeal. Any starting point for sentence for this quantity of drugs must reflect that fact.
Likewise, given that there are two counts in the instant case, each must be sentenced appropriately. I am satisfied that taking the total quantity of drugs in this matter, that is the sum of 6,050 grammes, it is appropriate to increase the starting point from the original guidelines from 14 years to 18 years.
That will result in an overall total sentence, after provision for a one-third discount for the plea of guilty, of 12 years’ imprisonment. Insofar as each count is concerned, I consider that the appropriate starting point for Count 1 is 15 years’ imprisonment, which is reduced to 10 years to acknowledge the plea of guilty; and that the starting point for Count 2 is 18 years, which is likewise reduced to 12 years to reflect the plea of guilty.
Both of those terms of imprisonment will be concurrent one to the other and the end result is a total sentence of 12 years’ imprisonment.