You pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The facts show that on 12 April 2014, a team of police officers were conducting an anti-narcotics operation in the Lok Ma Chau area when a car driven by the defendant was seen entering Hong Kong.
The police officers followed the car and intercepted the defendant at Chik Wan Street, Tai Wai. Upon search, a brown paper bag containing 7 black plastic bags containing 12 resealable plastic bags each containing a suspected dangerous drug was found on the right-rear passenger’s seat, while another 5 black plastic bags containing 10 resealable plastic bags each containing suspected dangerous drugs were found concealed in the gap behind the left-rear passenger’s seat and the trunk of the car.
The defendant was arrested for trafficking in a dangerous drug and cautioned verbally. Under caution, you replied, “Ah Sir, the dangerous drug belongs to me, give me a chance.”
The defendant was later interviewed under caution on video. He admitted to be the owner of the car in question, and he used the car to transport customers from Hong Kong to the mainland. He came to know a customer called “Ah Ming” who had asked the defendant if he was interested in transporting dangerous drug for a monetary reward. The defendant indicated he was interested, and on 11 April 2014 Ah Ming called him to arrange for him to pick up the dangerous drug from a man at the Fuk Tin area the next day. The defendant would receive $10,000 as a reward upon successful delivery of the dangerous drug to Hong Kong.
The defendant drove his car to the mainland and collected a paper bag from a man in Fuk Tin. The defendant concealed the bag in the gap between the rear passenger’s seat and the trunk of his car. When he drove to Hong Kong, he received a call from Ah Ming requesting him to go to Tai Wai to deliver the dangerous drug. The defendant thus drove his car to Tai Wai and parked it at Chik Wan Street. He was taking the dangerous drug out from the area where they were concealed when he was arrested.
The suspected dangerous drug was later analysed and confirmed to be 5.38 kilograms of powder containing 4.48 kilogrammes of ketamine with an estimated street value of $634,840.
Background and mitigation
According to the antecedents statement, the defendant is 57 years of age, married, with two daughters aged 16 and 17 respectively, studied up to Primary 6 level and had worked as an odd-job worker and worked in a construction site before he was 18. When he was 18 he obtained a driver’s licence and he became a professional driver.
The defendant is not a man of clear record. He appeared in court on six previous occasions and had a total of 11 convictions. Four of these convictions related to dangerous drugs. In 1983 he was convicted of one count of possession of dangerous drug for which he was fined $1,000 and sentenced to four months’ imprisonment but suspended for two years.
In 1985, he was convicted of two counts of possession of dangerous drug for the purpose of unlawful trafficking, and one count of conspiracy to traffic in dangerous drug for which he was sentenced to 10 years, 7 years and 1 year’s imprisonment respectively. From the way I read the record, all sentences are to run concurrently. His last offence was gambling in a gambling establishment in 1992 when he was fined $500.
Mr James McGowan, mitigating on behalf of the defendant, emphasised the fact that the defendant was able to keep out of trouble after he was released from prison in 1991. As indicated by his conviction of a gambling offence, the defendant got himself deep in debt because of his gambling habit and he committed the present offence out of desperation.
Mr McGowan asked me to take into consideration the fact that the defendant was able to be self-employed and purchased a flat under the Home Ownership Scheme before this offence. He asked me to balance these factors against the defendant’s previous convictions of possession of dangerous drug for the purpose of unlawful trafficking and be as lenient to the defendant as possible.
Mr McGowan also stressed that the defendant pleaded guilty at the earliest possible opportunity and, due to his age, his working life would effectively be over by the time he is released from the prison.
The sentence
Trafficking in a dangerous drug is a serious offence, and offenders are severely punished when caught. In the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 the Court of Appeal set down guidelines for the trafficking of ketamine. The ketamine involved here amounts to 4.48 kilogrammes. So it is within the band for over 1 kilogramme with a starting point from 14 years upwards.
I was provided with a number of Court of Appeal and First Instance cases on the trafficking of over 1 kilogramme of ketamine by Mr Melwaney for the prosecution. I am of the view that I only need to refer to two of them.
The first one is the case of Sin Chung Kin [2013] 1 HKLRD 627 where Yeung VP, giving judgment of the court, said at paragraphs 27 and 28 as follows:
“The longest sentence in the guidelines laid down in Hii Siew Cheng is 14 years’ imprisonment for trafficking in 1,000 grammes of ketamine. However, if one follows the rate of enhancement of sentences as is apparent from Lau Tak Ming [1990] 2 HKLR 370 and Ching Kwok Hung [1991] 2 HKLR 125, then for trafficking in 2,000 grammes and 3,000 grammes of ketamine (which, respectively, doubles and triples the 1,000 grammes which attracts 14 years’ imprisonment), the appropriate starting points should respectively be no less than 18 years and 20 years.
Taking one step further, if more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity. The court should exercise its discretion to pass a sentence appropriate in circumstances of the particular case.”
The other case I want to refer to is the case of So Wing On, CACC 296/2012. That is a pre Hii Siew Cheng case. Nevertheless, the Court of Appeal referred to said Sin Chung Kin case and said at paragraph 14:
“Where more than 3 kg of ketamine is involved, the starting point may exceed 20 years, although the increase in sentence should not be proportional to the increase in drug quantity, and it would be for the sentencing court to pass such a sentence as is appropriate in the circumstances of the particular case.”
The Court of Appeal also noted that in the case of Sin Chung Kin the ketamine involved was 5.12 kilogrammes and the starting point of 22 years adopted by the trial judge was not considered to be manifestly excessive.
In arriving at the appropriate starting point, I take into account the circumstances of the offence, the role played by the defendant, and the quantity of ketamine involved.
I am of the view that a starting point of 22 years is appropriate here. By using the term “starting point”, I am referring to the appropriate sentence for a first offender for this particular offence after trial, absent aggravating and mitigating features.
There is, of course, the aggravating factor of the international element involved here when the defendant brought the ketamine into Hong Kong from the mainland. Since the quantity is over 4 kilogrammes, Mr McGowan also accepts that he cannot argue against an enhancement of 2 years: see the case of Abdallah [2009] 2 HKLRD 437.
Although the defendant had two previous convictions of what are effectively trafficking in dangerous drug and one of conspiracy to trafficking in dangerous drug, I am prepared, for the reasons advanced by Mr McGowan, not to treat the previous convictions as aggravating factors to further enhance defendant’s sentence.
Using a starting point of 22 years and enhancing it by 2 years to reflect the international element, the appropriate pre-deduction sentence is one of 24 years.
The defendant pleaded guilty at the Magistrate’s Court and is entitled to a full one-third discount. There are no other grounds to further reduce his sentence.
For the offence of trafficking in a dangerous drug, the defendant is sentenced to 16 years’ imprisonment.