CRIMINAL CASE NO. 285 OF 2011
COURT: On 12 May 2011, police officers of the Narcotics Bureau, obviously acting upon information, conducted an operation in the vicinity of an Esso Petrol Station on the Tai Po Road in Cheung Sha Wan, Kowloon.
They approached and intercepted the defendant who was sitting in the driver’s seat of a private car by the side of the road. Beside him on the front passenger seat was a brown bag belonging to the defendant inside of which were 12 vacuum packed packets of what appeared to be Chinese tea.
The defendant was asked what was in the packets and he replied that it was K Chai. The packets were examined and subsequently found to contain 2.99 kilogrammes of a powder containing 2.39 kilogrammes of ketamine with a street value of $337,870.
Under caution upon his arrest the defendant said that in respect of the 12 packets of K Chai he was only helping someone to deliver them to somebody else for $3,600. He said that he personally had not sold the drugs to anyone.
The defendant’s admissions were almost immediately reduced into writing in a police officer’s notebook and he confirmed their contents and made further admissions later during a video-recorded interview.
This case was set down for trial last Wednesday, 7 March 2012. It began with a voir dire in relation to the admissibility of the defendant’s admissions at the scene and later in the police station. Although three days were spent in conducting the voir dire it is fair to say that the court in fact only sat for just under a day and a half because the defendant was suffering from influenza. During that time three witnesses for the prosecution had been called and the video-recorded interview had been played in open court. Another two witnesses for the prosecution had yet to be called.
On Monday of this week, that is 12 March, the defendant indicated to his counsel that he wished to change his plea to one of guilty. That he has now done and admitted the facts which I have just summarised. Plainly, that plea of guilty has not come at the first available opportunity and one of the issues I shall have to decide is what discount is merited in the circumstances of the late plea.
In relation to the starting point for 2.39 kilogrammes of ketamine narcotic, the guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD at page 1, run out at quantities over 1 kilogramme where the guideline indicated is 14 years’ imprisonment and upwards. However, Mr Mitchell for the prosecution has helpfully brought to my attention a number of Court of First Instance decisions, which although not binding upon me do provide some indication of the way other sentencing courts have regarded similar quantities of ketamine to the amounts I am concerned with.
They are HKSAR v Chu Kwun Fung, HCCC76 of 2010, where Madam Justice Bokhary took a starting point of 18 years’ imprisonment for 3.79 kilogrammes of ketamine narcotic; HKSAR v Cheng Lun Hung, HCCC169 of 2010, where Deputy Judge Stuart-Moore adopted a starting point of 15 years’ imprisonment in respect of 1.36 kilogrammes of ketamine narcotic, which he then enhanced by 6 months for the cross-border trafficking element; HKSAR v Tsang Koon Lap, HCCC316 of 2011, where again Madam Justice Bokhary took a starting point of 15 years and 8 months’ imprisonment in respect of 1.13 kilogrammes of ketamine narcotic, although that figure included an unspecified enhancement for cross-border trafficking, and HKSAR v Chiu Ka Fu, HCCC140 of 2011, where McWalters J adopted a starting point of 16 years’ imprisonment for an overall quantity of 2.7 kilogrammes of ketamine narcotic. The value of the drugs in that latter case was $387,440.
To these authorities Mr Luk has added the case of HKSAR v Fung Man Ching, HCCC165 of 2011, where Deputy Judge Longley also adopted a starting point of 16 years’ imprisonment in respect of 2.48 kilogrammes of ketamine narcotic worth over $350,000.
The quantity of drugs and their value are very similar to those in the case with which I am dealing. As I have said, these cases do not bind me but they do tend to support the correctness of the starting point which I consider appropriate in this particular case.
In my judgment the appropriate starting point in this particular case on these facts where no cross-border element is involved is 16 years’ imprisonment.
I should say that I have given consideration to whether or not I should enhance the sentence in view of the previous conviction of the defendant for trafficking in a dangerous drug, recorded on 31 March 2009 at Kowloon City Magistrates’ Court, where the defendant received a sentence for that offence of 16 months’ imprisonment.
However, I am told that the circumstances of that offence and the drug concerned were wholly different from the facts of this case, which is to some extent borne out by the fact that the particular offence was dealt with in the Magistrates’ Court and received a sentence which was expressed in months rather than in years.
The prosecution is not in a position to dissent from that which I have been told about that particular offence. I have decided, therefore, not to enhance the starting point which I have adopted of 16 years’ imprisonment.
The next question is what discount the defendant is entitled to for his late plea, albeit a plea of guilty nevertheless? Plainly, he is not entitled to a full one-third discount. His plea was not a timely plea, as has been explained in the authorities referred to by Mr Luk, and to give him a full one-third discount would, in my view, send the wrong message to any defendants tempted to make a gamble on their admissions being ruled inadmissible before deciding whether they will plead guilty or not. It will also do nothing to assist the considerable backlog of defendants who are in custody awaiting trial.
In this case the plea of guilty came not at the end of the voir dire and after an adverse ruling but during the prosecution case before the defendant gave evidence and before any ruling was made.
Bearing in mind the stage at which the plea came and the other matters of mitigation which have been advanced before me this morning, I am prepared to give him a discount from the starting point of 16 years of 25 per cent, namely, 4 years.
Sad though it is to send a young man to prison for a lengthy period, especially where he has family commitments, the court has laid down guidelines which are applicable in this case. The defendant is not a man of clear record and I see no reason to make any further reduction.
In all the circumstances the defendant will go to prison for 12 years.