COURT: First of all, the court is grateful for the assistance rendered by counsel.
The defendant, Mr Chan Kwing-kwong, pleaded guilty during the committal proceedings to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
The particulars of offence are that the defendant, on 17 May 2012, at Flat D, 8th Floor, Cheong Fok House, 97-101 Apliu Street, Sham Shui Po, Kowloon, unlawfully trafficked in a dangerous drug, namely 2.95 kilograms of a powder containing 2.51 kilograms of ketamine. He is committed to this court for sentencing.
Facts Admitted
On 17 May 2012, police mounted an operation against the premises at Flat D, 8th Floor, Cheong Fok House, 97-101 Apliu Street, Sham Shui Po. (“the premises”).
At 1015 hours, the defendant came out from the premises, and when he saw the police officers, he shut the door and shouted, “There are police”. He was subdued by the police officers. The police officers entered the premises by force, and there were a male and a female inside.
The premises were searched. Three plastic bags and a resealable plastic bag containing a total of 2.95 kilograms of a powder containing 2.51 grammes of ketamine were found inside the sitting room. Inside the resealable plastic bag there were also a spoon and an empty plastic bag. On a table inside the sitting room an electronic scale was also found. The spoon and the electronic scale were found to have traces of ketamine.
On being arrested and cautioned, the defendant said, “For these three pieces of ketamine, it is done by me. I sell them to others after dividing them.”
The ketamine in question had an estimated retail value at the time of seizure of about $351,050.
In video-recorded interviews subsequently conducted, the defendant admitted inter alia that he had been recruited to deal with dangerous drugs by “Ah Shan”, and the three bags of ketamine were collected by him from a male at Langham Place on 17 May 2012 on “Ah Shan’s” instructions. He had taken the dangerous drugs home and repacked some of them, using the spoon and the scale, for delivery to a person called “Ah Ming”.
Criminal Record
The defendant has three previous convictions, of which one was possession of a dangerous drug. He was last convicted of this offence, together with another offence of resisting a police officer, on 7 April 2011, for which he was sent to drug addiction treatment centre.
Mitigation
The defendant is aged 20. He received Form 2 education and was brought up in a grass root family. He was a part‑time transportation and delivery worker with unstable income.
Counsel for the defendant told the court that in March to May this year, the defendant did not have enough work and income, and he was in need of money to support himself and his girlfriend, who cohabited with him. He foolishly helped “Ah Shan” to deliver the dangerous drug for a reward of $1,000 per bag, but was arrested the first time, even before he received the reward. He is remorseful and feels ashamed of bringing the family into disgrace.
Counsel tenders mitigation letters of the defendant, his father and employer and colleagues to the court. The defendant expresses remorsefulness and determination to turn a new leaf. The father says that when the defendant was young, he and his wife worked long hours and neglected the defendant, resulting in him associating with undesirable peers and turning wayward. The employer and a number of colleagues all expressed a good opinion of the defendant. All of them ask the court for leniency.
Counsel quotes the cases of HKSAR v Chan Ying Lun HCCC285/2011, HKSAR v Fong Yuen Yee HCCC276/2012 and HKSAR v Yeung Tak Lung HCCC227/2012, which respectively involve trafficking in ketamine in the amounts of 2.39 kilograms, 2.05 kilograms across the Hong Kong/China border, and 4.2 kilograms. The courts adopted starting points of 6 years’, 15½ years’ and 16 years’ imprisonment respectively.
Counsel explains that the defendant fully co‑operated with the police. He put up no resistance when being arrested, and made full confession about the offence to the police. The dangerous drugs had not yet been distributed. The defendant is remorseful and is of young age. Counsel asks the court to treat the defendant leniently.
Sentence
In the case of SJ v Hii Siew Cheng [2009] HKLRD 1, the Court of Appeal laid down sentencing guidelines for the offence of trafficking in ketamine. It, however, only dealt with a quantity of ketamine up to 1 kilogram. According to it, if the amount of ketamine is more than 1 kilogram, the starting point should be over 14 years’ imprisonment. Thereafter, there are cases such as HKSAR v Leung Wai Man CACC24/2007 saying that for a large quantity of ketamine, the sentencing court should exercise its discretion according to the circumstances of the case.
As in the cases cited by the defence counsel, and indeed in many other cases where the quantities of ketamine involved exceeded 1 kilogram, the starting points adopted by the sentencing courts did not display a high degree of uniformity.
In the case of HKSAR v Sin Chung Kin and Another CACC458/2011, which was handed down on 17 August 2012, the Court of Appeal, after drawing an analogy with the sentencing guidelines for trafficking in heroin and “Ice”, said that for trafficking in ketamine of 2 kilograms to 3 kilograms, the starting point should be no less than 18 years’ and 20 years’ imprisonment. The Court of Appeal said this independently of the facts of that case.
Defence counsel dealt with this case in his further submission both in writing and in court this morning. He is of the view that what the Court of Appeal said was not meant to be sentencing guidelines. The court agrees that the Court of Appeal did not say specifically that it was laying down sentencing guidelines, but the Court of Appeal only came to such a view after analysing the sentencing guidelines relating to heroin and “Ice”, and must mean them to be taken seriously and followed, save for exceptional circumstances.
Defence counsel also includes in his written submission a number of cases illustrating the starting points adopted by various courts for trafficking in ketamine of large quantities. He further submits today that the present case occurred before the judgment of Sin Chung Kin was handed down.
The respondent cites the cases of HKSAR v Mohamed Omar Ali CACC407/2008 and HKSAR v Chan Ng Ming CACC44/2009 to illustrate the point that although sentencing guidelines have no retrospective effect they are a useful means to determine whether or not a sentence is excessive. The court agrees that under such circumstances, it is not fair to apply the decision of Sin Chung Kin to the present case.
The defendant says in mitigation that he committed the offence for economic reasons. This of course cannot constitute an excuse to offend the law and is certainly not a valid mitigating factor.
The court bears in mind the authorities cited by the respondent, and after considering the cases which deal with sentences of trafficking in large quantities of ketamine as well as the relative young age of the defendant, the court adopts a starting point of 15 years’ imprisonment.
Giving credit to the defendant for his plea of guilty, the court sentences him to 10 years’ imprisonment.