CRIMINAL CASE NO. 212 OF 2011
The drugs the subject of the 1st count were found on the defendant’s person on 14 February 2011 when he was intercepted and searched at the staircase between the 6th and 7th floors of the building in which he resided. He was then taken back to his residence, that is Room 613, Shing Yam House, On Yam Estate, and there the drugs the subject of the 2nd count were found. They were in a wardrobe which also contained a wad of transparent plastic bags, a spoon, and electronic scale.
The seized dangerous drugs had an estimated retail value at the time of their seizure of $35,571.
In a subsequent video-recorded interview, the accused stated that he resided at the premises Flat 613 Shing Yam House with his family and that he had placed the bag containing the ketamine in his room on the afternoon of 14 February 2011. The accused admits and accepts that he was trafficking in the seized dangerous drugs.
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, for sentencing purposes, ketamine is to be treated as the same as Ecstasy.
Secondly, the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained. Where the drugs are discovered in circumstances such as occurred here, the defendant falls to be sentenced on the total quantity of narcotic. Thus the quantity for which this defendant must be sentenced is 223.68 grammes.
Thirdly, 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 of between 50 to 300 grammes, the sentencing range should be 6 to 9 years’ imprisonment.
The existence of the 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 and avoid distinctions being drawn between drug traffickers based upon the nature of their trafficking, whether they be couriers, storekeepers or some other role. Whatever the role played by the trafficker, the sentence will, generally, be the same (see HKSAR v Manalo [2001] 1 HKLRD 557 at page 560, G to H). 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 (see Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20).
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines and that whilst a sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands (see the Chan Ka Wah case at page 908, paragraph 22).
No exceptional circumstances that would justify a departure from the relevant band are present in this case. 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 involved, 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 20 years of age with no previous criminal record. He has only completed form 3 education and this has limited his employment options. He has worked previously as a waiter and transportation worker but, from December 2010 until the time of his arrest, he had been unemployed. He became a drug user and this involvement with drugs led to the present offences. However, he is now genuinely remorseful and he has the support of his family. I accept that he is determined to end his involvement with drugs and lead a life free from criminal activity.
In the present case, the quantity of drugs is within the 6 to 9 years’ imprisonment band as it covers trafficking in 223.68 grammes. A purely arithmetical approach would suggest a reasonably high starting point within that band given the quantity of drugs involved.
However, I am impressed by the support that this defendant’s family is giving him and by the remorse he has shown. I adopt 7 years and 3 months’ imprisonment as my starting point. I discount that sentence by one-third to allow for the plea of guilty. The resulting sentence is 4 years 10 months’ imprisonment.
Despite what has been said by Mr Lam, I can find nothing in the mitigation to justify a further discount of the sentence.
The defendant is sentenced to 4 years and 10 months’ imprisonment on the 2nd count and 3 years’ imprisonment on the 1st count. The sentence on the 2nd count is to run concurrently with the sentence on the 1st count so that the total sentence is 4 years 10 months’ imprisonment.
Mr Poon, stand up, please. I have to sentence you in respect of each count on the indictment and that is why, as has been explained to you, you are receiving a separate sentence for each count. But the sentences run concurrently with each other, that means at the same time, so the total sentence you will serve is 4 years and 10 months’ imprisonment.
The Commissioner for Correctional Services does have the power to provide you with remission of part of that sentence should you be of good behaviour whilst serving this sentence and that could reduce further the period you spend in custody.
However, with your limited education, your employment options upon release are limited and you should use your time in prison to try and further your education or acquire some skills.
Despite the fact that you have let down your family very badly, they have continued to show you extraordinary support. When you are released from prison, you will have the opportunity to show them that their support was justified and what you do with your life thereafter is entirely in your hands. Yes, you may sit down.