CRIMINAL CASE NO. 56 OF 2011
(1) possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134; and
(2) trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the same ordinance.
He pleaded guilty to both charges before me.
The Summary of Facts
The 1st Count
The first offence took place on 30 July 2010 inside Ward 7A, Block S of the United Christian Hospital in Sau Mau Ping. The defendant was a patient occupying bed No. 18 inside the ward. A nurse noticed the defendant had white powder on his nose and stood by his bed as if in a trance. The nurse suspected the white powder was ketamine, so she approached the defendant to check his mental state. The defendant appeared to be normal to her.
Later that night a male nurse learnt of the incident, and he asked the defendant to open the drawer of his bedside table. After the drawer was opened, the male nurse saw a transparent packet containing white powder. The defendant immediately grabbed the packet and jumped onto the bed. A security guard took over the packet and passed it to the male nurse for safekeeping.
The security guard then searched the same drawer and found another packet of suspected dangerous drugs, which he opened in the presence of the defendant. A report was then made to the police.
Upon the arrival of the police, the defendant was arrested for the offence of possession of dangerous drugs. Under caution, the defendant admitted that the dangerous drug was for his own consumption.
Subsequent analysis confirmed that the two packets contained a total of 11.50 grammes of a powder containing 8.67 grammes of ketamine.
The 2nd Count
The second offence occurred a few days later, on 3 August 2010, outside the Sau Ming Road park. At the time, a team of police officers were conducting anti-dangerous drug operation. The police officers observed the defendant and another male acting suspiciously, and they approached the two.
One officer identified his police identity to the defendant and told the defendant that he suspected him of having dangerous drugs on his person. A search was conducted. During the search, the policeman found a transparent packet inside the left front pocket of the defendant’s shorts. Inside that packet, the policeman found two resealable packets containing ketamine and one resealable packet containing cocaine.
The defendant was arrested for the offence of trafficking in dangerous drugs. Under caution, the defendant said that he had obtained the “K chai”, which is ketamine, and the cocaine in order to sell to others to make money. He asked for a chance.
During the subsequent video-recorded interview, the defendant admitted that he purchased the drugs in question the day before for the sum of HK$12,000. He intended to sell the drugs for HK$14,000 to make a profit of $2,000. He was caught at the location where he was to meet the buyer.
Subsequent analysis confirmed the substances found by the police were:
(a) 1.5 gramme of a solid containing 1.15 grammes of cocaine; and
(b) 313.54 grammes of a powder containing 254.59 grammes of ketamine.
The Defendant’s Background
The defendant is 35 years of age. He is not a first offender. He has appeared in court previously on seven occasions, his last appearance being in 2001. He had two previous convictions of possession of dangerous drugs.
Mr Raymond Yu, counsel for the defendant, told me in mitigation that the defendant used to work regularly as a truck driver with a company called Cheung Yue. I was provided with a letter from Cheung Yue confirming the defendant’s employment there. Mr Yu told me that the defendant had a girlfriend with whom he had planned to marry. Shortly before these offences, the girlfriend left him for another man, saying that the defendant did not earn enough.
The defendant relapsed into drug taking, got drunk, and did not attend work after he failed to convince the girlfriend to return to him. He later quit his job with Cheung Yue.
The defendant committed the possession offence as he was addicted to drug taking again. As the defendant was in need of money, he committed the offence of trafficking in dangerous drugs.
As to why the defendant was hospitalised, I was informed by Mr Yu that the defendant felt unwell as he had difficulties in urinating. Upon the advice of a private practitioner, he went to the hospital for a further check‑up. He did not know how long he would be hospitalised, so he brought along the ketamine for his own consumption at the hospital. In the end, he was hospitalised for two nights. The ketamine he had brought along would have lasted him three to four days.
Mr Yu accepts that the reason why the defendant had committed the trafficking offence does not amount to a special reason for the court to depart from the sentencing guidelines. He asked the court to give the defendant the credit of pleading guilty.
The defendant also wrote to me himself. The defendant basically tells me what Mr Yu had informed me. The defendant expressed his remorse and asked for a chance.
Offences involving dangerous drugs are serious, particularly when the trafficking of dangerous drugs is involved. I will first deal with the trafficking in dangerous drugs offence.
There are two kinds of drugs involved in the trafficking: cocaine and ketamine. The total quantity of cocaine involved was 1.15 grammes, while the total quantity of ketamine involved was 254.59 grammes.
For the trafficking of cocaine, following the authority of Pedro Nel Rojas [1994] 2 HKCLR 69, and adopting the guidelines in the case of R v Lau Tak Ming [1990] 2 HKLR 370, trafficking up to 10 grammes of cocaine, the appropriate starting point is within the range of 2 to 5 years.
For the trafficking of ketamine, the Court of Appeal has set down the sentencing guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD. Trafficking 50 to 300 grammes of ketamine, the appropriate starting point is within the range of 6 to 9 years.
Sentencing for the trafficking of more than one type of dangerous drug could be based on:
(a) the individual approach, where an appropriate starting point was determined for each type of dangerous drug and they were then combined into an overall starting point; or
(b) the combined approach, where the most serious drug determined the starting point, which then was adjusted upwards for significant quantities of the other drug.
As a rule of practice, where the sentencing brackets for the two types of dangerous drug were not dissimilar, it was appropriate to adopt the combined approach. Where the two drugs were disparate in quantity and potency, the individual approach was to be preferred. (See HKSAR v Ko Ka Hing [2009] 4 HKLRD 856.)
As the Court of Appeal says in the Ko Ka Hing case:
“The appropriate approach to be adopted is a matter of discretion for the sentencing court to be exercised in light of the circumstances of the particular case. No matter which approach is taken, the paramount consideration, at the end of the day, is the totality of the overall starting point.”
See: HKSAR v Chan Ho Wai, CACC129/2008; HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367; HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542; and HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42.
In the Ko Ka Hing case, the defendant there trafficked a total of 19.13 grammes of cocaine and 39.52 grammes of ketamine in separate packaging. The sentencing judge adopted the individual approach, and the Court of Appeal held that:
“Given the potency and quantity of the two drugs, the sentencing judge did not err in adopting the individual approach. The absurdity of simply adding up the two individual starting points did not arise in that case. The starting point adopted by the sentencing judge was not manifestly excessive.”
The present case is not dissimilar to the Ko Ka Hing case. There are two separate packets involving cocaine and ketamine. The difference lies in the actual quantity: less cocaine involved, but much more ketamine.
I am of the view that the individual approach is more appropriate here. Having considered the circumstances of the present offence and the defendant’s background, I arrive at the following starting point. For the cocaine, the appropriate starting point is one of 2 years. For the ketamine, the appropriate starting point is one of 8 years.
The appropriate overall starting point is one of 9 years. As the defendant pleaded guilty before me, which is still a timely one, I will give the defendant the usual one‑third discount.
The sentence for the trafficking of dangerous drugs is therefore one of 6 years.
I now turn to the possession offence. The amount involved is 8.67 grammes of ketamine. Bearing in mind the defendant was hospitalised at the time and he had clearly stocked up for his consumption while he was in the hospital, I will not take into account any element of latent risk in arriving at the appropriate starting point.
I am of the view that a starting point of 12 months is appropriate here. The defendant will be given the usual one‑third discount as well.
The sentence for the possession charge is one of 8 months.
As the two offences occurred on two separate occasions, it would be wrong in principle to order both sentences to run concurrently. However, having considered the totality principle, I am of the view that an overall sentence of 6 years would properly reflect the criminality involved.
So for the 1st count, the sentence is one of 8 months’ imprisonment; the 2nd count, 6 years’ imprisonment, to run concurrently, with the 8 months imposed on the 1st count, making a total of 6 years’ imprisonment.
So a total of 6 years.