COURT: The defendant Chau Ka-yu was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
At the material time, the defendant was seen by police officers conducting an anti-narcotics operation sitting at the driver’s seat of a vehicle parked in Bute Street. A black plastic bag was seen between the defendant’s thighs. Police officers approached the defendant. At the time, the defendant’s right hand was holding a transparent resealable plastic bag which contained 13.7 grammes of a crystalline solid containing 10.4 grammes of methamphetamine hydrochloride, ‘Ice’.
Inside the black bag, among other things, there were the following:
(i) One plastic bag containing 13.6 grammes of a crystalline solid containing 11.6 grammes of methamphetamine hydrochloride;
(ii) One plastic bag containing 13.6 grammes of a solid containing 11.7 grammes of ketamine;
(iii) A plastic bag containing 13.5 grammes of a solid containing 11.6 grammes of ketamine;
(iv) Five plastic bags containing a total of 12.9 grammes of a solid containing 10.9 grammes of ketamine;
(v) Ten plastic bags containing a total of 6.19 grammes of a solid containing 5.18 grammes of ketamine; and
(vi) Ten plastic bags containing a total of 6.47 grammes of a solid containing 5.44 grammes of ketamine.
So the aggregate amount of dangerous drugs found from the defendant was a total of 27.3 grammes of a crystalline solid containing 22 grammes of methamphetamine hydrochloride and 52.66 grammes of a solid containing 44.82 grammes of ketamine.
The defendant was arrested and cautioned. Under caution, the defendant admitted that he was trafficking in a dangerous drugs for others for a monetary reward. Two mobile phones, one black and one pink, and cash of HK$320 were seized from the defendant upon arrest.
Subsequently, a video-recorded interview was conducted with the defendant. Under caution, the defendant admitted and stated inter alia that he became acquainted with a person called ‘Ah Ming’. It was Ah Ming who directed him to collect the dangerous drugs on 15 January and he would await Ah Ming’s call to make delivery to other persons he did not know. He was promised $150 for each delivery. The car he was seen in belonged to his friend. He borrowed the car to use. The mobile phones seized from him belonged to him. The $320 cash also belonged to him, they were his savings.
In January 2020, the estimated street value of the methamphetamine and ketamine seized was about HK$14,879 and HK$26,751 respectively, thus the total estimated street value of the subject dangerous drugs seized was about HK$41,630.
The defendant admitted and accepted that he was knowingly in possession of the dangerous drugs seized for the purpose of trafficking.
Background and Mitigation
Defence counsel, Ms Maria So, gave me details of the defendant’s background. The defendant is a single man of 26. He studied up to Form 3 and was working as a car washing worker at a garage since 2018, earning around HK$15,000 per month. The defendant and his elder brother did not know their parents and they were brought up by their paternal grandmother who has since passed away in September 2020. When his grandmother was alive, she would bring the defendant to visit his uncle, that is his father’s brother.
After his grandmother moved to live in a nursing home, the defendant and his elder brother were responsible for payment. However, the defendant’s elder brother lost his job so the defendant had to shoulder the whole responsibility of supporting their grandmother.
Towards the end of 2019, the defendant was not getting paid regularly due to the unstable business situation from the social unrest. His uncle in the Mainland was getting sick and was eventually diagnosed with rectal cancer. The defendant was under financial difficulties in having to bear all the expenses for his grandmother, his uncle and for himself. Defendant wanted to make some quick money and foolishly agreed to deliver dangerous drugs.
Ms So submitted that the defendant is remorseful and co-operated with the police upon arrest. His role was that of a messenger following instructions of others.
The defendant has one previous conviction of trafficking in a dangerous drug back in 2014 and he was sentenced to 60 months’ imprisonment. Ms So recognised that that was an aggravating factor but she urged this Court to exercise discretion when considering this matter.
Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to be sentenced for life and to a fine of $5 million. As there are two kinds of dangerous drugs involved here, I will adopt the combined approach using the more potent ‘Ice’ as the base and adjust the starting point upwards after taking into consideration the amount of ketamine. The ‘Ice’ involved here amounts to 22 grammes which falls into the band of 10 to 70 grammes in the case of HKSAR v Tam Yi Chun with a starting point of between 7 to 11 years. The total amount of ketamine involved in this case is 44.82 grammes which falls into the 10 to 50 category in the case of Hii Siew Cheng with a starting point of between 4 to 6 years.
I am grateful to Ms So for preparing tables for the three different tests that are absurdity test, conversion test and ratio test. With the absurdity test, assuming all the narcotics were ‘Ice’, 66.82 grammes of ‘Ice’ would attract a sentence of 10 years and 9 months. Using the conversion test, if all the dangerous drugs are converted to ‘Ice’, then 44.82 grammes of ketamine would be equal to 6.8 grammes of ‘Ice’, making a total of 28.8 grammes of ‘Ice’ with a starting point of 8 years and 3 months. It would equal to 6.8 grammes of ‘Ice’, so the total amount of ‘Ice’ would be 28.8 grammes, and then the starting point is 8 years and 3 months. If one adopts the ratio test, the resultant sentence would be one of 7 years and 8 months.
Having considered the three tests, I will adopt the conversion test so the result is a starting point of 8 years and 3 months and having considered the role played by the defendant as a messenger, I think a starting point of 8 years and 3 months is appropriate.
The defendant committed the previous offence of trafficking in a dangerous drug when he was almost 20 years of age and he was sentenced to 60 months of imprisonment in 2014 and was released in May 2017. Bearing in mind the defendant’s relatively young age when he committed the offence of trafficking in a dangerous drug in the past and the reason why the defendant committed the present offence after securing a steady job after his release from prison, I will not enhance the sentence because of this previous similar conviction.
On the mitigation side, the defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. There are no other grounds to further reduce the sentence.
8 years and 3 months equals to 99 months. Two-third of 99 months equals to 66 months. 66 months equals to 5 years and 6 months. So for the offence of trafficking in dangerous drugs, the defendant is sentenced to 5 years and 6 months’ imprisonment.