The defendant pleaded guilty before me to one count of possession of a dangerous drug and one count of trafficking in a dangerous drug. Briefly, the accused was stopped by the police on 22 September 2011 when he was leaving Cheung Shing Building, Cheung Sha Wan Road, Kowloon.
During a search, the police found inside the accused’s jeans pocket two resealable plastic bags containing the drug particularised in the 1st count, that is 0.43 of a gramme of cocaine. Under caution, the accused stated that the drug was for his own consumption. This is the subject matter of the 1st count.
Shortly afterwards, the police took the accused to Room D4 on the 1st floor of Cheung Shing Building. They gained entry into the premises by using the keys found on the accused. When searched, 12 plastic bags containing the drugs particularised in the 2nd count, that is 18.75 grammes of cocaine and 145.7 grammes of ketamine were found. An electronic scale and some empty plastic bags were also seized.
Under caution, the accused admitted having been asked to keep watch on the drugs. This is the subject matter of the 2nd count.
During a subsequent video-recorded interview, the accused made further admissions and stated that the drugs inside the premises were given to him by another person and he would later deliver the drugs for a promised reward of HK$500. Concerning the drug found on his person, the accused maintained that it was for his own consumption.
Mitigation
The accused is aged 22 and is single. He was educated up to form 3 level. The accused had worked as a waiter but was unemployed at the time of the offence. The accused was before the court on one previous occasion with two possession of a dangerous drug convictions. He was sent to the DATC in March 2010.
In mitigation, it was said that the accused pleaded guilty at an early stage, indicating his genuine remorse. It was also emphasised that the accused only played a minor role. Although the accused had two previous convictions, Mr Arthur stressed that the accused had never been to prison before and he is now determined to turn over a new leaf.
Letters from the accused, his mother, his sister and his case worker were also submitted to the court. The accused was described as a kind-hearted and responsible person and it would appear that his family members and case worker consider him to have been led astray by others.
Finally, Mr Arthur urged this court to pass concurrent sentences in respect of the 1st and the 2nd count.
Sentencing Considerations
For the 1st count of possession of a dangerous drug, I am going to adopt a starting point of 9 months.
In respect of the 2nd count which involved more than one type of dangerous drug, the Court of Appeal has pointed out in a number of decisions that there are two sentencing approaches, that is the individual approach and the combined approach. See for example HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 and HKSAR v Wong Kin Kau, CACC 269/2009, 4 May 2010, unreported.
In the present case, as the drugs had not been mixed together, I am going to adopt the individual approach in considering sentence, bearing in mind that, irrespective of which approach is to be adopted, the ultimate question is one of appropriate totality.
Following the relevant guidelines, 18.75 grammes of cocaine will attract a term of imprisonment of 5 years and 9 months. The tariff is a period of between 5 to 8 years for between 10 to 50 grammes, according to The Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 which applies the heroin trafficking guidelines in R v Lau Tak Ming [1992] HKLR 370.
145.7 grammes of ketamine will attract a term of 7 years and 3 months. The tariff is a period of between 6 to 9 years for 50 to 300 grammes, according to Secretary for Justice v Hii Siew Cheng & Another [2009] 1 HKLRD 1.
If these two terms were to be merely added together, then it would produce a term of 13 years’ imprisonment. Such, in my view, is too excessive a sentence on the facts of this case. Therefore, taking into account that it is more serious to traffic in more than one type of drug and noting that there is the potential for the mixing of the drugs to enhance their potency as identified in Wong Kin Kau, I consider an overall starting point of 10½ years for the two lots of drugs should sufficiently reflect the seriousness of this case.
Sentencing in this Case
The accused pleaded guilty and he would receive a one-third reduction for his plea. Other than this, there is nothing which would warrant any reduction in sentence. The accused is therefore to serve a term of 6 months in respect of the 1st count and a term of 7 years in respect of the 2nd count.
Applying the totality principle, I consider it appropriate that these two terms be served wholly concurrently, making an overall term of 7 years.