CRIMINAL CASE NO. 221 OF 2011
COURT: I have remarked before and recently in this court on the young age of defendants who are coming before the High Court charged with serious offences of trafficking in dangerous drugs.
At the time of these offences, the 1st defendant was 18 and the 2nd defendant 17 years of age. 20 years ago, even 10 years ago, that would have been a surprisingly young age for any defendant facing trial for trafficking in dangerous drugs in the High Court. It seems that where ketamine and cocaine are involved, defendants are much younger than their counterparts a decade or two decades ago.
It seems to me that in those circumstances the courts must be resolute in passing sentences consistent with guidelines that have been handed down by the Court of Appeal and which everybody in Hong Kong, however young and from whatever background, knows about and understands. It also means that the courts cannot, in this class of case, and given its prevalence, be swayed by the youth of defendants before them, because traffickers in cocaine and ketamine in particular are getting younger and younger.
Clearly, both defendants well knew the dangers they were running if caught, or else D1 would not have instructed D2 to hide the drugs if he was away from the flat for too long, an instruction D2 was apparently carrying out when intercepted by the police; yet both defendants were willing to take these risks.
On a human level, one must have the utmost sympathy for the parents and families of both defendants. In particular, great things were obviously expected of D2, and she is clearly a talented individual who has had the advantage of being brought up in a good family with sound values. It is particularly sad for them to see their daughter caught up in a drug culture from which they hoped those values would protect her.
Sympathetic as I may be, this case is too serious for me to consider the option of a training centre sentence.
I have listened to the plea in mitigation made on D1’s behalf. It is a sad tale for someone so young with hitherto a clear criminal record. Undoubtedly the root of your problem, D1, is drugs, having been addicted since 2010 to both ketamine and cocaine, according to the antecedents report. Nevertheless, you were caught, on your own admission, as you were setting out from your home, where you were storing and packaging dangerous drugs, in order to sell them in a nearby park and amusement games centre where other young people would no doubt frequent.
Given your role and purpose in these offences, I would adopt a starting point of 4 years’ imprisonment in relation to Count 1. Giving you a full one-third discount for your plea of guilty, the sentence on Count 1 is one of 2 years and 8 months’ imprisonment.
In relation to Count 2, had the charge concerned ketamine alone in the quantity stated in that charge, I would have adopted a starting point of 6 years and 9 months’ imprisonment. Had the charge concerned cocaine alone without the ketamine, I would have adopted a starting point of 5 years’ imprisonment. Obviously I cannot add those starting points together in relation to Count 2, or I would arrive at an inflated figure which did not properly reflect the criminality of trafficking in this particular mix of drugs.
Bearing in mind that I am dealing with two types of drug and adjusting the starting point accordingly, I take a starting point in relation to Count 2 of 8½ years’ imprisonment. From that starting point you will get a full one‑third discount, bringing your sentence to 5 years and 8 months’ imprisonment.
The next question is whether I should make the sentence on Count 1 consecutive, concurrent, or partly concurrent with the sentence on Count 2. On the one hand, you were caught in the actual act of setting out to traffic in the drugs concerned in Count 1. To that extent, it was a different activity from the drugs in Count 2, which were being stored and packaged at your home.
On the other hand, I accept Ms Chow’s submission that had all the drugs been charged together in one single count, the sentence in respect of the ketamine quotient might have been slightly higher, but it would not ultimately have affected the sentence in a significant way when taken together with the cocaine quotient.
I would have been justified in making 3 months of the sentence on the 1st count consecutive to the sentence on the 2nd count and the rest of your sentence concurrent, but in all the circumstances, in particular in the light of your plea of guilty and your clear record, I am going to make the sentences on Counts 1 and 2 wholly concurrent with each other.
Accordingly, you will go to prison for 5 years and 8 months.
In your case, D2, you are also in a serious position, but you have two slight advantages over D1. Firstly, you are not concerned with the drugs in Count 1, which means that you were not actually peddling, or on your way to peddle, any drugs. Secondly, you were in possession of the drugs in Count 3, because you were misguidedly carrying out the instructions of your boyfriend to hide them in case of trouble.
I call it a slight advantage, because you were still trafficking; the allegation against you being that you were dealing with these drugs rather than dealing in them.
It has been put on your behalf by Mr Ho that you had been placed, by virtue of D1’s instruction to you and your relationship with him, in a very difficult position. I cannot accept that. You had a choice and you consciously made a bad one, knowing full well what the risks were and what the consequences would be. I do not agree with your counsel’s description of your offence as technical trafficking.
Nevertheless, you are not quite in the same category as D1, and I can properly reflect the difference with his position and your particular role in the starting point I take. However, there is limited room for manoeuvre given, as I said at the outset, that the courts must be resolute in passing consistent and tough sentences upon anyone who, for whatever reason, deliberately chooses to involve him or herself in the trafficking of dangerous drugs.
In all the circumstances, the starting point I adopt in your case in relation to Count 3 is one of 7 years’ imprisonment. That is perhaps a generous starting point, but it reflects your very different role in this offence. From that starting point you will get a full one-third discount.
Accordingly, you will go to prison for 4 years and 8 months.