The defendant pleaded guilty to one count of trafficking in a dangerous drug and one count of possession of a dangerous drug in the Eastern Magistrates’ Court on 11 January 2013. This morning, he confirmed his pleas before me and accepted the Summary of Facts.
Briefly, in the afternoon of 11 October 2012, the defendant was found acting suspiciously in the vicinity of Cheung Hang Estate, Tsing Yi, by some Customs Officers. When the officers approached the defendant, he immediately threw a plastic bag of stuff onto a flower-bed nearby. The defendant was then intercepted and the plastic bag retrieved.
Upon subsequent examination, the drug particularised in the 1st count, that is 247.8 grammes of a powder containing 171.39 grammes of ketamine, was found inside the packet. Under caution, the defendant stated that the powder was ketamine and that he was taking it back to someone else.
Further, as a result of a house search conducted later that day, the officers found a packet containing the drug particularised in the 2nd count, that is 4.55 grammes of a powder containing 2.8 grammes of ketamine, on a table inside the defendant’s bedroom. Under caution, the defendant stated that the drug was for his own consumption.
During a subsequent video-recorded interview, the defendant said that he was unemployed at the time. He further confirmed that he was taking the ketamine back to another person when he was stopped by the Customs Officers. The estimated street value of the drugs seized in this case was about HK$29,500.
Mitigation
The defendant is aged 22 and is single. He quitted school at the age of 14. At the time of arrest, he was unemployed and was living with his family members in a public housing unit.
The defendant had five previous convictions, all related to drug offences. Four of those were possession of a dangerous drug and one was trafficking in a dangerous drug. He was put on probation on the first occasion when he was convicted. Thereafter, he had repeatedly been sent to the DATC. The defendant’s most recent detention in the DATC started on 20 January 2012. He was released on 7 August 2012. However, within just about two months’ time, he was caught for the present offences.
In mitigation, it was said that the defendant became a ketamine user at the age of 16. After quitting school, he had picked up unstable employment. Mr Collins stressed that the defendant is now determined to turn over a new leaf and to put his past behind him. What the defendant intends to do during his detention, according to Mr Collins, is to pick up his studies again and to learn something useful, most probably the work of electrical technician, so that he could become a useful member of the community after his release. Mr Collins also provided the court with a letter written by the defendant himself in which he showed his remorse.
The Sentence
In Secretary for Justice v Hii Siew Cheng & Another [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking 50 to 300 grammes of ketamine, a term of imprisonment of 6 to 9 years is called for.
Having considered the facts of this case, including that a total of 171.39 grammes of ketamine was found and the defendant’s background, I am of the view that a starting point of 7½ years is appropriate. This is what I would adopt as the starting point for the 1st count.
As for the 2nd count, the quantity involved was 2.8 grammes of ketamine. In HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of Appeal stated that for simple possession of a quantity of drug which a bona fide user would normally have in his possession would be in the range of 12 to 15 months’ imprisonment. Further, an enhancement would be required should there be the latent risk factor.
In this case, given the amount involved and the facts disclosed, I adopt 12 months as the initial starting point for the 2nd count. As the defendant was unemployed at the time and he was trafficking in another lot of ketamine when he was arrested, I consider there to be a real risk that the ketamine seized from his home would find its way to the hands of others. I therefore enhance the starting point by 3 months to take account of this latent risk factor. Thus, the overall starting point for the 2nd count is one of 15 months.
The defendant pleaded guilty and he will receive a one-third reduction in sentence. While it is very encouraging to see that the defendant is minded to mend his ways with the help of his supportive parents, such could not serve as a mitigating factor in cases as serious as trafficking in dangerous drugs. Therefore, other than his plea, there is nothing which would warrant any further reduction in sentence.
For the 1st count, 7½ years reduced by one-third is 5 years’ imprisonment. For the 2nd count, 15 months reduced by one-third is 10 months’ imprisonment.
If I were to order both terms to one wholly consecutively, this would mean that the defendant would have to serve a term longer than as if he were trafficking in both lots of ketamine. Therefore, applying the totality principle, I order that both terms are to one wholly concurrently, resulting in a total term of 5 years’ imprisonment.