CRIMINAL CASE NO. 153 OF 2012
COURT: The defendant has pleaded guilty to one count of trafficking in a dangerous drug, namely 213.89 grammes of a powder containing 87.74 grammes of ketamine.
The facts, too commonly appearing in this court, are that on the night of 18 October last year, the defendant was driving his private vehicle and he was stopped by police officers in Ho Man Tin. The dangerous drug which is the subject matter of the charge was found under the driver’s seat of the car. It is worthwhile to note that it was a plastic bag containing three white envelopes containing a total of 18 plastic bags, all containing the dangerous drugs. Also found from the driver’s door of the car was HK$1,300.
Under caution, the defendant said he bought the ketamine from a friend on 17 October last year and he was driving to deliver the ketamine to a friend who wanted the drug. So in other words, he was not only delivering the drug, he was supplying it to friends who wanted the drug. The $1,300 which was found by the police was money he earned from selling drugs, he said.
The seized dangerous drugs had an estimated retail value of about HK$23,527.
The defendant is aged 26 and has some six previous convictions, four of which are to do with dangerous drugs. He was convicted of trafficking in a dangerous drug in 2003, for which he was sent to the Drug Addiction Treatment Centre. After that, he was convicted of some three counts of possession of dangerous drugs and on the last occasion, which was in 2009, he was also sent to a Drug Addiction Treatment Centre. None of the sentences in his record detended him from indulging in the present offence.
It is said in mitigation that the defendant now is very remorseful and is determined to turn over a new leaf with the support of his family. The court can only hope that this would be the case.
In mitigation, it was also pled on his behalf that 30 to 40 grammes of the drugs found were for his own consumption. This court pointed out to defence counsel, Miss Chong, that I am loath to accept that unless evidence is called because, according to the mitigation she advanced, he was only earning $10,000 a month and he gave $3,000 a month to his family, leaving himself only $7,000 a month. So I invited Miss Chong to call evidence on this point but Miss Chong submits that she has taken instructions and the defence will not call evidence on this point.
Miss Chong prays in aid the case of HKSAR v Wong Suet Hau in CACC366/2000. In that case, the Court of Appeal had stated that in determining what factual basis to consider for sentence, particularly where the defendant claimed that part of the drugs were for his own consumption, the factors to be considered should include the quantity of drugs and their value; secondly, the general circumstances, including how the drugs are wrapped and how many wraps or packets are found. In this case, it is clear that it was wrapped, as I have said, in 18 packets and ready for distribution.
The third consideration the Court of Appeal pointed out was where the drug was discovered, and in this case, it was in the defendant’s car, under his seat. Fourthly, the Court of Appeal said the court should consider the presence of paraphernalia associated with drug trafficking or for drug consumption. Fifthly, whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question.
According to the record, the defendant had been sent to a Drug Addiction Treatment Centre in 2009. Although it is in the antecedents statement that the defendant claimed that he was addicted to ketamine and takes about 1 gramme per day, so it appears that after having been sent to the Drug Addiction Treatment Centre, he again indulged in taking ketamine.
The sixth consideration the Court of Appeal said was the court should look at the explanation given by the defendant following arrest. The explanation given by the defendant was that he was delivering the drugs to friends who wanted it. Finally, the court says to consider the defendant’s criminal record and also the defendant’s means and his ability to pay for his drugs otherwise than by trafficking in them.
So having considered all that, I also consider the case of Hii Siew Cheng [2008] Volume 3 HKC 323, where it was laid down that for trafficking in 50 to 300 grammes of ketamine, a sentence of 6 to 9 years is recommended.
Considering the amount in this case, 87.74 grammes, it would merit a starting point of 6½ years’ imprisonment. Taking into account the fact that the defendant has pleaded guilty at the earliest opportunity, he is entitled to one-third discount and therefore the sentence of 6½ years is reduced to 52 months.
I consider that the court has to look at all the factors which were advanced by the Court of Appeal in the case of Wong Suet Hau and, in general, I have no doubt that since the defendant is delivering the drugs, he may, on occasion, take some of the drugs he was delivering for his own consumption. But given his background circumstances which I have enunciated already, I doubt that he would take a significant proportion of those drugs because he basically cannot afford it. One must bear in mind that even if he takes a small proportion for his own consumption, that small proportion would still merit a term of imprisonment and therefore would cancel any deduction for self-consumption.
As I said, the reduced sentence is 52 months, which is 4 years and 4 months. I will reduce it by 2 months to 4 years 2 months. So the sentence of the defendant is 4 years and 2 months.