CRIMINAL CASE NO. 342 OF 2011
COURT: The defendant has pleaded guilty to two charges of trafficking in a dangerous drug.
The 1st charge involves 105.67 grammes of a powder containing 84.42 grammes of ketamine. The 2nd charge involves 154.56 grammes of a powder containing 110.33 grammes of ketamine and 2.65 grammes of a solid containing 2.1 grammes of cocaine.
At about 8 pm on 14 April 2011, the defendant was observed by police to be acting in a furtive manner outside the ground floor of Chungking Mansions, 36-44 Nathan Road, Tsim Sha Tsui, Kowloon. He was intercepted by police officers, and a search was conducted of his person.
Eight transparent resealable plastic bags, wrapped in white tissue paper, were found between his front waist and his jeans.
The defendant was arrested for trafficking in dangerous drugs and was cautioned for that offence. In response, the defendant said that he had been trafficking in dangerous drugs in order to earn a living. The substance in the plastic bags was the mixture containing the dangerous drug the subject of the 1st charge.
The police and the defendant then went to a flat that the defendant rented at Room A, Flat A4, 17th Floor, Block A, Chungking Mansions, 32-44 Nathan Road, Tsim Sha Tsui, Kowloon. Inside the flat there were dangerous drugs that are the subject of the 2nd charge, some drug-packing paraphernalia, including an electronic scale, a bundle of resealable plastic bags and a pair of pliers.
Subsequently in a video-recorded cautioned interview, the defendant told the police that at the time of his arrest he was wandering in the vicinity of Nathan Road and waiting for a call from someone he called “Sai B”, a person he had met in an amusement games centre in Tsim Sha Tsui a few weeks previously. “Sai B” had given him $6,000 and asked him to rent a flat and had told him he would be paid $500 to deliver some dangerous drugs. He did as instructed and rented the flat in his name through a property agent at $2,200 a month.
Then, at around 5 pm on 14 April 2011, “Sai B” called him and asked him to pick up a black plastic bag from the park near Middle Road. He did as directed, and went to the flat. He opened the bag and found it contained ketamine, plastic bags, pliers and a scale.
A few hours later, “Sai B” called him and asked him to pack eight packets, each containing 14 grammes of dangerous drugs. He did as directed, and left the remainder of the ketamine inside the bag, which he placed on the floor. Then “Sai B” called him again and asked him to take the drugs downstairs.
The defendant then wrapped the eight packets of drugs in a paper handkerchief and placed it between his front waist and jeans. He went downstairs, whereupon he was arrested by police.
He maintained that this was the first time he had delivered dangerous drugs.
The dangerous drugs the subject of these charges, if sold at the retail level to drug abusers in Hong Kong in the month of April 2011, would have had an estimated retail value of $29,146 for the ketamine and $2,962 for the cocaine.
In different cases the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug trafficking offence. The first is that the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained. Thus, the quantity for which this defendant must be sentenced is a total of 194.75 grammes of ketamine and 2.1 grammes of cocaine.
Secondly, the sentencing ranges for trafficking in ketamine are to be taken from the guidelines laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. There, the Court of Appeal said that for amounts between 50 to 300 grammes, the sentencing range should be 6 to 9 years’ imprisonment. For cocaine, the sentencing range for up to 10 grammes of narcotic is 2 to 5 years’ imprisonment.
The existence of these sentencing tariffs leaves little room for mitigation, but notwithstanding this, the sentencing tariffs play a very important role for two main reasons. Firstly, they lead to consistency in sentencing. As Stuart‑Moore, Acting CJHC, said in HKSAR v Manalo [2001] 1 HKLRD 557 at page 560 G to H:
“The guidelines, whilst of course not straitjackets, are there to provide and maintain consistency of sentence between all offenders who traffic in dangerous drugs. It is important for courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.”
Secondly, they help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits. As the Court of Appeal said in Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20:
“It is important to follow the guidelines so that people who engage in such evil business can be assured of the length of the inevitable custodial sentence, and hopefully such an approach will be a deterrent.”
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from these guidelines. In the Chan Ka Wah case, the Court of Appeal concluded at page 908, paragraph 22, that:
“Whilst a sentencing judge may retain some degree of discretion and other factors may be taken into account to determine an appropriate sentence, the sentence imposed should normally be ‘within the suggested bands’.”
Nevertheless, I still have some sentencing discretion. Although it has been clearly stated by the Court of Appeal that a clear record and youth, other than extreme youth, should not have any bearing on sentence, I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender, and any previous involvement he may have had in drug offences. See HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chong Heung Sang [2010] 3 HKC 88.
The defendant is now 19 years of age and was only 18 at the time of the offence. He is of limited education. He came under the influence of the wrong people and, it seems, was prompted by the prospect of easy money. He is remorseful, and wishes now to put this incident behind him and move on with his life. He intends, he says, to make use of prison to further his education. He has the support of his family, which will be most important on his release from prison.
In the present case, the quantity of ketamine is within the 6 to 9 years’ imprisonment band, as it covers trafficking in 50 to 300 grammes. The cocaine is within the 2 to 5 years’ imprisonment band.
I must decide where, within that band, I should adopt the starting point for sentence. I take into account your youth, your remorse, and the fact that you had no prior involvement with drugs and that you have the support of your family. Your counsel has urged leniency on you. I am persuaded that as far as I am able, I should allow you a degree of leniency.
So taking into account all the matters that I have mentioned and the total quantity of narcotics, I will adopt the starting point that your counsel has suggested, namely 7½ years’ imprisonment. I discount that sentence by one‑third to allow for your plea of guilty.
The resulting sentence is 5 years.
In respect of the 2nd charge, I adopt 2 years as my starting point and reduce it by one-third to allow for the plea of guilty.
The sentence for the 2nd charge then becomes 16 months’ imprisonment.
I have considered whether anything your counsel has said would entitle me to discount those sentences further, but I can find nothing in your mitigation to justify a further discount of sentence.
You are sentenced to 5 years’ imprisonment on the 1st charge and 16 months’ imprisonment on the 2nd charge. The sentence for the 2nd charge will be served concurrently with the sentence for the 1st charge.
The total sentence you must serve is therefore 5 years’ imprisonment.
You have indicated to me that you wish to use your time in prison productively. I would urge you to do that. Should you comply with prison discipline, the Commissioner for Correctional Services does have it within his power to award you remission for good behaviour. That could reduce your sentence further. You will still be a young man when you come out of gaol. It is up to you what you make of the rest of your youth. With the support of your parents, you must ensure that you enter into productive employment and that you do not have any contact with other people involved in the drug trade. These are matters which you and your parents can discuss and talk about in the time that you are in prison. You should be thinking in terms of putting this incident behind you and planning your life after release from prison.