CRIMINAL CASE NO. 353 OF 2011
COURT: The defendant has been convicted of a most serious drug trafficking offence involving the trafficking in large quantities of two different types of drugs, cocaine and ketamine. The cocaine was in two forms, 426.36 grammes of cocaine hydrochloride in solid form and 42.22 grammes of cocaine in powder form. Taken together, he was trafficking in a total of 468.58 grammes of cocaine. In respect of the ketamine, the defendant was trafficking in 820.28 grammes.
The defendant was born on 4 January 1983, making him now 29 years of age. He has been in trouble with the law as a result of his association with dangerous drugs from the age of 18 when he was convicted of possession of dangerous drugs and placed on probation for 18 months. Some six months into the Probation Order, he was convicted of trafficking and sent to Training Centre.
Unfortunately, these experiences with the criminal justice system did not deter him from further engaging in drug trafficking and, on 31 August 2006, he was convicted in the High Court of trafficking in dangerous drugs and sentenced to 6 years’ imprisonment. He was discharged from prison for this sentence on 29 April 2010. Then, just 13 months later, he was arrested for the current offence for which he must now be sentenced.
The defendant has form 5 education and comes from a middle-class family. His parents have their own jewellery business at which the defendant helped out as a salesman. Nothing has been put before me to explain how the defendant became involved in drug trafficking or why he continued to pursue a career as a drug trafficker.
It is clear that his experiences with the criminal justice system have not acted as any deterrent to him as once each experience with the penal system ended, he not only returned to what appears to have become his chosen career, he actually became more deeply involved in it. This has ended in him now being convicted of a drug trafficking offence of a far more serious level than his previous offences.
I hope that this sad progression which has ruined his youth will now come to an end and, on his release from prison for this offence, he will not return to a career in crime. That is a matter entirely in his hands.
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. Relevant to this case, the first is that for sentencing purposes, cocaine is to be treated as the same as heroin.
Secondly, 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 468.58 grammes of cocaine and 820.58 grammes of ketamine.
Thirdly, the sentencing ranges for trafficking in heroin and cocaine are to be taken from the guidelines laid down by the Court of Appeal in Crown v Lau Tak Ming & Others [1992] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There, the Court of Appeal said that for amounts of between 400 to 600 grammes, the sentencing range should be 15 to 20 years’ imprisonment.
Fourthly, 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 600 to 1,000 grammes, the sentencing range should be 12 to 14 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 560G 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 the 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 such circumstances are present in this case. However, a strict application of the sentencing tariffs is not possible when sentencing an offender for trafficking in more than one dangerous drug. In a number of cases, the Court of Appeal has recommended the course that trial judges should adopt when sentencing in these circumstances.
There are two different methods of proceeding, referred to as ‘the individual approach’ and ‘the combined approach’ and which approach should be adopted depends upon the circumstances of each case. Where the drugs are quite different in quantity and potency, the individual approach is the preferred one (see HKSAR v Leung Chun Pong [2009] 6 HKC 272 and HKSAR v Ko Ka Hing [2009] 4 HKLRD 856).
The individual approach involves fixing separate penalties for each drug in accordance with the relevant tariff and then adjusting upwards the more serious penalty to take account of the trafficking in the other drug. However, what has to be avoided is a simple mathematical addition of the sentences relevant for each quantity of dangerous drug as that would result in a disproportionate sentence that offended the totality principle (see HKSAR v Yip Wai Yim [2004] 3 HKC 367).
In my view, the individual approach best suits the circumstances of the present case and that is the one I adopt. I believe it will enable me to fairly achieve a sentence for this defendant that will proportionately reflect the culpability of his conduct.
In identifying appropriate penalties for each dangerous drug and then assessing an appropriate starting point, I cannot ignore the defendant’s criminal record. His past offending reveals a progression to more serious drug trafficking and a failure to be deterred by the criminal justice process from re-offending. This failure to be deterred, this persistent re-offending and this progression to more serious drug trafficking constitutes an aggravating factor justifying the adoption of a higher starting point (see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830).
For the cocaine, I fix a punishment of 16 years and for the ketamine, a punishment of 14 years. This would make a total of 30 years’ imprisonment and would be a disproportionate sentence for the culpability of this defendant’s drug trafficking. In my view, the appropriate course is to make an upwards adjustment of the cocaine sentence of 16 years’ imprisonment in order to reflect the large quantity of ketamine in which this defendant was also trafficking.
I believe that in the circumstances of the present case and taking account of the antecedents of this defendant, the correct totality that satisfies the needs of deterrence and denunciation, and also allows for the rehabilitation of the offender, is one of 22 years’ imprisonment, and that is the sentence I impose.
Will the defendant stand up. Mr Wong, for the reasons that I have just elaborated upon, I sentence you to 22 years’ imprisonment. Your counsel will explain to you that should you be of good behaviour, the Commissioner for Correctional Services does have the power to grant you some remission on that sentence.
As a result of your involvement in drug trafficking, you have wasted and destroyed your youth. What you do with the rest of your life is entirely up to you. Prison will offer you the opportunity to obtain skills if you request them but it seems to me entirely the issue is, for you, whether, on your release from prison, you go back to a life of drug trafficking or whether you make a new life for yourself and that, as I have already said, is a matter entirely for you. You may sit down.
Please refer to CACV74/2012 for the relevant appeal(s) to the Court of Appeal.