COURT: The defendant, Yu King-pui, face two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
On 22 October 2019, the defendant who was holding two plastic bags in his right hand was intercepted by police officers near the ground floor gate of the building at No 71 Prince Edward Road West. Upon search of the plastic bags, there were five paper boxes containing:
(1) Four transparent resealable plastic bags containing a total of 996 grammes of a crystalline solid containing 987 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, and
(2) A plastic bottle containing 99 tablets containing a total of 23.5 grammes of 3,4-methylenedioxymethamphetamine, MDMA, again commonly known as ‘Ecstasy’.
The defendant was arrested and under caution he admitted delivering the dangerous drugs for a reward of $1,000 and upon search of the defendant’s person, four keys, a mobile phone and cash of HK$1,300 were found on him.
The defendant was then escorted to the 1st floor of the building. In execution of a search warrant, police entered the flat by using one of the keys seized from the defendant. The subject flat was subdivided into three rooms. The defendant pointed out his room, which is Room 3, to the police.
Upon search of Room 3, the following items were found. Inside a carton box at the corridor:
(a) Four plastic bottles containing a total of 613 grammes of tablets, 1,233 tablets estimated by weighing, containing 297.4 grammes of MDMA;
(b) Two transparent resealable plastic bags containing a total of 500 grammes of a crystalline solid containing 496 grammes of ‘Ice’;
(c) Four transparent resealable plastic bags containing a total of 760.7 grammes of a solid containing 660 grammes of ketamine;
(d) Five transparent resealable plastic bags containing a total of 4.67 grammes of a solid containing 3.81 grammes of cocaine;
(e) Three transparent resealable plastic bags containing a total of 5.87 grammes of a solid containing 4.40 grammes of ketamine;
(f) A transparent resealable plastic bag containing 0.12 gramme of a solid containing 0.02 gramme of ketamine and 0.09 gramme of ‘Ice’.
Then on a table near the corridor the police found the following:
(g) Two plastic spoons;
(h) A white paste;
(i) Two electronic scales;
(j) Numerous unused transparent resealable plastic bags;
(k) A plastic bag sealer;
(l) A roll of plastic bags.
The defendant was further cautioned. Under caution, the defendant claimed that, among other things, the dangerous drugs were packed and placed on the table when he came. He took them out and left Room 3.
In a subsequent cautioned video-recorded interview, the defendant stated the following. In late September 2019, he acquainted a person called Ken who offered him to deliver dangerous drugs to others and on each delivery he would be rewarded HK$1,000. He agreed. Ken had told him about the items to be delivered, including “Pork” and “Head Snake”. He only knew they were drugs, but he did not know what they were referring to as he did not take drugs.
In mid-October 2019, another male on the instruction of Ken contacted him and asked him to meet in person in Mong Kok. When they met in Mong Kok, that other male passed him some keys and told him about the address of Room 3. Later, Ken told him to wait for his instructions as Ken would officially arrange jobs for him.
At around 4 pm on 22 October 2019, Ken contacted him again, telling him to go to Room 3 before 6 pm. He arrived at Room 3 as instructed and he found the dangerous drugs on the table. Ken told him to put the dangerous drugs into the box and he put the four plastic bags of “Pork” and one bottle of “Head Snake” into five paper boxes. Ken told him to bring the boxes downstairs to someone waiting near the fire station. He did as told and when he was leaving the building, he was intercepted by the police.
When he was inside Room 3, he was aware that there were other dangerous drugs inside the room but he did not pay further attention as he only did what Ken told him to do. He was promised a reward of $1,000 after the delivery was finished and he had not received any reward. He used WeChat to communicate with Ken. He had not seen Ken before. He had not been to Room 3 before other than the time he went to collect dangerous drugs. So when he was shown the seized dangerous drugs from Room 3, he confirmed he had seen them in the carton box. He took them out to check but he put them back in the box after checking and he did not pay them attention as he only followed Ken’s instructions.
The seized cash from him were remaining salary from his previous job. The seized mobile phone was the one he used to communicate with Ken. He used a prepaid SIM card to contact Ken.
The defendant’s DNA was found on the packaging containing the ‘Ice’ that were carried by the defendant when he was arrested and also on the packages containing ‘Ice’ that was seized inside Room 3.
The average retail prices of the ‘Ice’, ‘Ecstasy’, ketamine, cocaine powder and crack cocaine in October 2019 were HK$682 per gramme, HK$66 per tablet, HK$493 per gramme, HK$1,022 per gramme, and HK$1,450 per gramme respectively.
The total estimated value of the seizure would be, for ‘Ice’, 1,020,272; for ‘Ecstasy’, 87,912; for ketamine, 377,919; for cocaine, in the range of 4,773 to 6,772, powder form and crack form respectively. So the total amount is between HK$1,490,876 to 1,492,875.
The defendant’s mobile was examined and WeChat conversation between the defendant and Ken were discovered and the conversation started from 7 October 2019 and in the conversation, the defendant told Ken on 7 October 2019 the following words: “第一次做，不過有概念，飲完茶花完野升野比人” and “不過未花過野開頭可能手腳會唔夠快，要訓練” and there were photos of the plastic bags of dangerous drugs with drug codenames and weight being written on the bags and packing items such as plates, electronic scales seized from the Room 3 were found, showing that the defendant and Ken had discussed about repackaging the drugs for further delivery.
Dangerous drugs expert gave the opinion that “飲茶”, “花”, “升野” meant dangerous drugs transactions, the act of packaging of dangerous drugs and the act of taking some dangerous drugs respectively.
The defendant admitted and accepted that at all material times he possessed all the seized dangerous drugs as particularised in the 1st and the 2nd count for the purpose of unlawful trafficking.
Background and Mitigation
The defendant was born in 1996, so he was 23 at the time of the offences. He is single and was living with his mother and sister. His parents divorced when he was eight or nine. He studied up to Form 2 and had worked as a waiter or a kitchen worker earning about HK$15,000 to 16,000 per month. He contributed HK$4,000 to his mother and another HK$4,000 to his father. The defendant’s father suffers from lung cancer and sciatica.
The defendant is not a man of clear record, having appeared in court on three occasions with three convictions, theft in 2013 for which he was sentenced to 120 hours of community service and compensation of $1,000, then trafficking in dangerous drugs in 2016 and was sentenced to 4 years’ imprisonment and possession of dangerous drugs in 2019, for which he was sentenced to 8 months’ imprisonment suspended for 24 months. The defendant committed the present offences seven months after he was given the suspended sentence.
Mr Bernard Yuen, counsel for the defendant, submitted in mitigation that defendant made full and frank admission to the police at the earliest opportunity, giving the whole account to the police during the video-recorded interview. And what the defendant confessed is consistent with what were found on him and at the premises. The defendant acted on the instruction of Ken to make delivery for a reward. He was given the keys to the premises and the dangerous drugs did not belong to him.
The defendant was very remorseful and have pleaded guilty, saving the court’s time. Mr Yuen submitted that it would be appropriate to adopt the combined approach, in this case using ‘Ice’ as the basis.
The defendant, his father and his elder sister all wrote to the court, asking for leniency. I do not think there is any need to reiterate the contents. Sufficed to say that the picture painted before the court was that the defendant was a filial son who took good care of his family, in particular his father who suffers from lung cancer.
The defendant himself explained that he was in financial difficulties and although he had come to an agreement with the finance company as to how he would make repayment, he lost his job as a kitchen worker due to the social unrest in 2019 and he met with undesirable elements at bars where he went to drink and was enticed to commit the present offences. The defendant was remorseful and he was grateful that his family had not forsaken him.
Consideration of the sentence
Trafficking in dangerous drugs is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life.
First of all, in the circumstances of the present case where both offences were committed on the same day and the facts were closely linked, I am satisfied that the dangerous drug in Count 1 were connected with the dangerous drugs in Count 2, so the proper approach is to have regard to the total amount of dangerous drugs in Counts 1 and 2 so as to arrive at an overall starting point, see the case of HKSAR v Chow Yu Chi (unreported, CACC 359/2000), HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and the case of HKSAR v Wong To [2001] 4 HKC 499.
This case also involved the trafficking in four kinds of drugs, ‘Ice’, cocaine, ketamine, and ‘Ecstasy’. So I will first look at each dangerous drug separately. ‘Ice’ first. The ‘Ice’ involved amounts to 1,483.09, that is adding 987 to 496 to 0.09. According to the case of HKSAR v Tam Yi Chun [2014] HKLRD 691, and the case of HKSAR v Abdallah [2009] 2 HKLRD 437, trafficking an amount between 1,200 and 4,000 grammes, the starting point is between 23 to 26 years.
Cocaine
The total quantity of cocaine is 3.81 grammes, which falls into the category of up to 10 grammes with a starting point of 2 to 5 years and that is the case of AG v Pedro Nel Rojas [1994] 2 HKCLR 69 adopting the case of R v Lau Tak Ming [1990] 2 HKLR 370.
Ketamine and MDMA or ‘Ecstasy’
Since the guidelines laid down in the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1 apply to both the trafficking of ketamine and MDMA, I will add them together to arrive at the appropriate starting point. The amount of ketamine involved in this case is 664.42 that is 660 plus 4.4 plus 0.02. The amount of ‘Ecstasy’ was 320.9 that is 23.5 plus 297.4. So the total amount of narcotics here is 985.32, which falls under the category of 600 to 1,000 grammes, with a starting point between 12 to 14 years.
Having considered the two different approaches, that is the individual or the combined, I am of the view that a combined approach using the 1,483.09 grammes of ‘Ice’ as the basis for the starting point and adjusting it upwards to take into account the other narcotics would be the appropriate way to deal with this case.
I am grateful to Mr Ngai for the prosecution for preparing a table showing the various tests, that is the conversion test, absurdity test and the ratio test. It can be seen that on a purely arithmetical calculation, just the ‘Ice’ itself would attract a sentence of 23 years and 4 months. With the ratio test, the resultant sentence is 22 years and 2 months and with the conversion test, if all were ‘Ice’, 23 years 7 months. If all were cocaine, 23 years 8 months and if all were ketamine or MDMA, over 20 years.
Having considered the various tests and bearing in mind there were four types of dangerous drugs involved, I am of the view that the starting point of 24 years is appropriate which is in fact what both the prosecution and defence counsel had come to as an agreement.
Now, the defendant is not a first offender. He has three previous convictions and two of them are drug-related. Trafficking in dangerous drug in 2016 and possession of dangerous drug in 2019. Since the starting point of 24 years is already a heavy sentence, I will not enhance the starting point because of the defendant’s record.
The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. The resultant overall sentence is therefore one of 16 years.
So the actual sentences. For Count 1, 16 years, Count 2, 16 years. Both sentences to run concurrently, making a total of 16 years.
Now, the defendant committed the present offences while a suspended sentence for possession of dangerous drugs was still valid and there is no reason for me not to activate the 8-month sentence so I order the present sentence of 16 years to run consecutively to the 8-month sentence imposed in the case WK/5324/18. Thank you.