CRIMINAL CASE NO. 480 OF 2011
COURT: These are my reasons for sentence.
The defendant has pleaded guilty to trafficking in a dangerous drug, namely 323.77 grammes of a powder containing 233.56 grammes of ketamine.
The offence occurred on the evening of 20 June 2011 at Sau Mau Ping Estate. At around 2225 hours the defendant was driving a private car, registration No. PT 7199, and stopped his vehicle at the roundabout outside Sau Chi House, Sau Mau Ping Estate. The defendant was looking around but did not alight from the vehicle. He was observed by a police officer who became suspicious of his conduct. He and a colleague approached the defendant and revealed their identity.
They asked the defendant to come out from the car and informed him that he was to be searched on suspicion that he possessed a dangerous drug. On being searched the defendant was found to be holding a white coloured tissue in his left hand in which there were two transparent resealable plastic bags containing suspected ketamine.
Inside a concealed compartment near the handbrake of the vehicle three transparent resealable plastic bags were found and they each contained a number of transparent resealable plastic bags inside each of which was some suspected dangerous drugs. Also found inside the car were the following:
(1) a notepad placed on the dashboard at the driver’s seat;
(2) five mobile phones which were inside the glove compartment; and
(3) $5,100 in cash placed inside a black shoulder bag at the front passenger seat.
The defendant was the registered owner of this car.
The drug exhibits were examined by a Government Chemist who certified that what was recovered from the defendant’s possession was 16 grammes of a powder containing 12.62 grammes of ketamine and what was recovered from inside the private car was 307.77 grammes of a powder containing 220.94 grammes of ketamine, making a total quantity of 323.77 grammes of a powder containing 233.56 grammes of ketamine. The street value of the dangerous drug was estimated at $35,938.
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 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. Thus, the quantity for which this defendant must be sentenced is 233.56 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 between 50 to 300 grammes the sentencing range would be 6 to 9 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 and avoid distinctions being drawn between drug traffickers based upon the nature of their trafficking, whether they be couriers, storekeepers or play 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-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 such circumstances 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, the type of mixture contained in 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 aged 36 and is married with a daughter. He is an irregular user of ketamine and was unemployed at the time of his arrest. He has 13 prior convictions dating back to 1989 when he would have only been 13 years old. That offence was for robbery for which he was placed on probation.
He was in trouble with the law again in 1991 and 1992 but it was not until 1996 that he acquired his first dangerous drugs conviction which was for simple possession. The following year he again got into trouble and was convicted of theft and possession of a dangerous drug for which he was sentenced to DATC.
He received his first serious punishment in 2004 when he was sentenced in the District Court to 28 months’ imprisonment for immigration identity fraud. He was by then 28 years of age and this was his eighth conviction. In 2008 he was convicted of possessing dangerous drugs and sentenced to 6 months’ imprisonment. From 2009 to this offence he seems to have diversified his criminal activity and become involved in dealing with dutiable goods.
He acquired three convictions for this conduct in 2009 and 2010 and received short periods of imprisonment. His last conviction was in August 2010 and was for the offence of theft for which he was sentenced to 4 months’ imprisonment. He was discharged from prison on 10 November 2010 and committed this offence almost eight months later.
This is his most serious offence. In the present case the quantity of drugs is within the 6 to 9 years’ imprisonment band as it covers trafficking in 233.56 grammes. Notwithstanding his prior criminal record, I shall not regard that as an aggravating feature and enhance my starting point.
Nevertheless, that criminal record does not entitle him to any leniency in respect of where I adopt, within the band, a starting point for this offence.
I adopt 8 years as my starting point. I discount that sentence by one-third to allow for the plea of guilty; the resulting sentence is 5 years 4 months.
Despite what has been said by the defendant’s counsel I can find nothing in the mitigation to justify a further discount of the sentence.
The defendant is sentenced to 5 years 4 months’ imprisonment.
Mr Cheng, for the reasons which I have just explained to you, you are sentenced to 5 years 4 months’ imprisonment. Your counsel will have explained to you that the Commissioner for Correctional Institutions may reduce that period further by granting you remission for good behaviour.
What you do with your life once you leave prison is a matter for you but your life is gradually being used up by periods of imprisonment and unless you make a decision to change your lifestyle the rest of your life will be spent in and out of prison. Prison should provide you with an opportunity to acquire some skills or learn a trade. Unless you make a positive effort to change your life around once you leave prison, then it is quite likely that you will simply get back into your bad habits and bad associations.
If you want to enjoy your life spending time with your family then I urge you to take advantage of such opportunities as may be available to you in prison to acquire the skills you will need once you leave prison.