CRIMINAL CASE NO. 1 OF 2012
COURT: Ma Chi-hong, you stand convicted on your own pleas of two counts of trafficking in a dangerous drug. Count 1 concerns 2.75 kilogrammes of powder containing 2.25 kilogrammes of ketamine which was found in your possession at a vehicular access road in Nam Wai Village, Sai Kung, while Count 2 concerns 4.6 kilogrammes of powder containing 3.91 kilogrammes of ketamine found in premises in the same village, which you were renting.
The operative amount of ketamine narcotic for sentencing purposes, looking at the two counts together, is 6.16 kilogrammes. As you will be aware, these are extremely serious offences. The street value of the drugs was more than $0.75 million which shows what a lucrative business this was for you.
The quantities of the narcotic itself are well beyond the cut-off amount of over 1 kilogramme of ketamine in the guideline case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD at page 1, for which a starting point of 14 years’ imprisonment and upwards should be considered.
Although there have been some appellate cases involving several kilogrammes of ketamine prior to the guideline case of Hii Siew Cheng, I am only aware of one appellate authority involving multiple kilogrammes of ketamine since that case was decided. That is the authority to which Mr Cheung has also referred this morning, namely HKSAR v Ng Siu Kam Criminal Appeal No. 474/2009. Although the charge was conspiracy to traffic in a dangerous drug, the court was concerned with a quantity of between 5 and 5½ kilogrammes of ketamine, the appropriate starting point for which was said to be 16 years’ imprisonment.
Given that that starting point was increased to 20 years by virtue of a number of aggravating features, one of which was that the conspiracy was not short-lived and had run for some two and a half months during which the accomplice, under the applicant’s direction, had made at least 10 trips to the mainland to collect the dangerous drugs, I am minded to think that the court was applying the 16-year starting point to a simple trafficking in that quantity.
Like the court in Ng Siu Kam, I am concerned to avoid a mere arithmetical progression of sentence based on quantity and I see little difference for sentencing purposes between trafficking in 5½ kilogrammes and trafficking in 6.16 kilogrammes of ketamine. In my judgment, even without the assistance of the case of Ng Siu Kam, I would have considered a starting point of 16 years’ imprisonment appropriate in the circumstances of this case.
I have had the opportunity of reading the various letters written to the court by your wife, your sisters, your pastor and yourself. I have also had the advantage of listening to a sensible and realistic plea in mitigation by your counsel, Mr Cheung.
Three things have struck me about the letters written on your behalf. Firstly, you appear, finally, to recognise the seriousness of your position and the position in which you have placed your immediate family and wife. I am inclined to accept the genuineness of your regret for the pain that you have caused them and your determination to change the way you have been living and behaving.
That can be demonstrated, secondly, by the fact that you were married in June of this year, whilst in custody, to someone you have known for over 10 years and who has written, in the circumstances of what she now faces, a remarkable letter of support on your behalf.
It can also be shown, thirdly, by the fact that you have enrolled in the Open University on a course of business relations and communication, and by virtue of your charitable donations to Po Leung Kuk and the interest you have shown in church activities, that you have started to think about other people than yourself.
It seems to me that you come from a good family which has continued to support you despite what you have put them through. I hope their faith and trust will not be misplaced.
Giving full effect to your plea of guilty and the mitigation to which I have just referred, I am going to pass a sentence of 10½ years’ imprisonment. Although there are two separate charges, or counts, the circumstances make it clear that all of the drugs came from the same source and it seems to me that the simplest, most expedient method of achieving the overall resulting sentence is to pass a sentence of 10½ years on each count and to make the two sentences concurrent.
Accordingly, Ma Chi-hong, you will go to prison on each count for 10½ years, which sentences will run concurrently with each other.