COURT: The defendant has pleaded guilty to two counts of trafficking in multiple dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The two counts reflect drugs recovered immediately outside of her flat upon stop and search and drugs recovered upon search of the flat itself. As such, they arise on the same occasion and are likely to form part and parcel of the same batch of drugs. My approach to sentencing will therefore be to consider the quantity of drugs seized as a whole as suggested in HKSAR v Yau Ka Ming, CACC 144/2013 at paragraph 17. I intend thereafter to reflect that overall sentence within the individual counts.
The defendant has accepted the Summary of Facts before the court. The summary indicates that cocaine, ketamine, “Ice”, herbal cannabis and MDMA were found either in a bag around her waist or within her flat along with two electronic scales and several resealable empty plastic bags plus some $5,010 in cash.
There is an issue as to how the drugs came to be in her possession and what her role as a trafficker was. The drugs recovered have an approximate street value of $108,000. The exact amounts of the narcotic contents of the dangerous drugs recovered were as follows: under Count 1, 11.58 grammes of ketamine and 6.18 grammes of “Ice”; under Count 2, 103.74 grammes of ketamine, 24.23 grammes of “Ice”, 0.51 grammes of cocaine, 3.03 grammes of herbal cannabis and 0.43 grammes of MDMA.
Significantly, all of the drugs under Count 1 and found within the defendant’s waistbag, were already subdivided, ready to be sold on to the end user. The 11.58 grammes of ketamine found inside the waistbag was contained within 22 separate bags whereas the ketamine recovered from the flat, which weighed 103.74 grammes, was contained within just six bags. The 6.18 grammes of “Ice” found within her waistbag was contained within 11 separate bags of small amounts, and yet the 24.23 grammes of methamphetamine found in the flat were in nine bags of much larger amounts.
There were also two electronic scales on the table in the flat next to the snoopy box, which contained the remainder of the drugs, and the pink box containing the empty resealable plastic bags. A subdivision of the drugs in this way tends to undermine her suggestion upon arrest that all of these drugs were for her own consumption or to share with friends, thereby minimising her role. Alternatively, on another occasion, the defendant said the drugs within the waistbag were for onward sale by Fung Man-san albeit that she was carrying them for him.
In evidence, she said that the drugs found within the flat had been placed there by Fung because he had recovered them that same day from her car prior to the car going in for repairs. That evidence does not stand scrutiny. The box containing the drugs was on the table alongside the box of plastic bags and next to the two electronic scales and a spoon used for weighing drugs, none of which were recovered from her car before repair.
The irresistible inference to be drawn from the division of drugs found in the waistbag under Count 1 is that either the defendant was on her way to deal in them herself or that they were jointly on their way to deal with them together. On either of those versions, she is a supplier, not a courier.
The defendant gave evidence before me on this issue. It was not fully explored by counsel perhaps because she was not helping herself in evidence. Having heard her, I do not accept her version of events. I do not accept she was carrying drugs around her waist for Fung in the absence of any explanation as to why she should have done so innocently. I do not accept she was to play no part in their distribution. The defendant knew what she was carrying. She knew that Fung was a dealer. You cannot say, “I am only a courier” if you knowingly assist another person to distribute or sell drugs and are present at the time of doing so. Your culpability is greater than that of the type of courier upon which our guideline tariffs are premised.
For her part, the defendant attempted to identify her role by explaining that she had originally undertaken the role of driver. She would drive Fung to his appointments in her taxi and he would pick up and deliver goods which she later knew to be drugs. Later, she had come to a private arrangement with him and had used her own car to drive him around. On the day in question, her car was in the garage being repaired. That is why they were on foot but she gave no explanation as to why she was carrying the drugs for Fung if she was simply a driver and if he was with her at the time of arrest.
Equally notable under Count 2, was the fact that the dangerous drugs found inside the flat were found within one box which was situated in the middle of the room on a table. The box was next to the two electronic scales, several empty plastic bags and a scoop for measuring out the drugs. That evidence suggests an ongoing process in which the defendant assisted in or allowed the subdivision of drugs in her flat.
That evidence is not consistent with being a storekeeper alone. The irresistible inference is that the dangerous drugs under Count 2 were waiting to be cut into smaller deal sizes for onward sale, using the electronic scales and resealable plastic bags to do so. Either she was doing this herself, as she initially suggested on arrest, or she was complicit in Fung doing so. If the latter is correct, she is in any event jointly liable for trafficking as a supplier.
If I am correct in that assessment of the facts, then the role of the defendant is quite different from a courier or drug mule. She is the person who either sells or enables and assists the selling of these drugs to the end user. She is a person who either encourages drug abuse by making available a cocktail of drugs for purchase in accessible form or assists Fung to do so in a proactive manner. Either she is the one who makes the immediate profit and can afford to purchase ketamine for HK$37,000, as she suggests in her video-recorded interview, or she helps Fung to do so and then benefits in cash or in kind or both.
In that respect, I have taken into consideration the HK$5,010 in cash which was recovered and which the defendant says were her savings rather than the profit from dealing. Her evidence in this regard is confusing. On the one hand, her references in support suggest she has not worked as a taxi driver since her accident in 2016. Her previous employer confirmed she was unable to do so.
However, in evidence before me, she suggested that when she first met Fung in March 2019, she was working as a taxi driver. This was how they met. She would work a morning shift and then drive him in the evenings to pick up and drop off goods. She had suggested to him that she would drive him around in her own car; initially charging him $800 a day but once they became lovers in April 2019, she charged him $500 per day or received drugs as a payment.
At one point, she said she received some $12,000 from him in a month but she also said she had no income. This is unlikely as she had to pay rent on her flat; she needed funds to run her car; including fuel, parking, car tax and insurance. She also needed money for utilities, food and clothing. If she was driving for hire, then she would have needed to pay for a licence.
The evidence is problematic for her as she readily admits she knew he was dealing and that she was the one driving him around. The $5,010, if paid to her by Fung for driving, came from dealing in dangerous drugs. If not, then she needed to have shown its origin. There was an oblique suggestion that they may have come from a compensation payment, but that was not made good and in any event amounted to some HK$20,000 paid some three years prior to the offence.
Upon either version, her culpability is greater than the standard guideline tariff as discussed in HKSAR v Herry Jane Yusuph, CACC 93/2019, [2020] HKCA 974, albeit there may be a marginal difference as between the two versions of events which she has relied upon.
Background
Ms Fu is now 44 years of age. She received education up to Form 3 level and is a single parent. She has a 22-year-old son but they are estranged. She also has a 19-year-old daughter. Mr Jim submits that her daughter has been an inpatient of a development dependency unit since 2008. I have read a number of letters from those involved with her care and about the defendant’s relationship with her daughter and with her carers. She has clearly made some effort in that respect although it has not been consistent.
The defendant was using drugs before either child was born. She was first before the courts in 1999 for possession of dangerous drugs and again in 2001 for the same offence. At that time, she was pregnant. In the intervening years, she has been before the courts on several occasions for other minor matters for which she has served terms of imprisonment but no further drug offending until now. She maintains, however, that she has been an abuser of drugs for between 10 and 15 years.
I find it surprising that none of her many previous convictions during that period have been for drugs, if that is the case, unless she was using drugs only occasionally. After all, according to her, she was employed during this time as a taxi driver. It is more likely, as she suggested at one point, that her consumption only increased once she met Fung and had a steady free supply of drugs.
The defendant originally said that all of the drugs were for her own consumption or for use with friends. That she now says was not true. She now submits that part of the drugs contained within the snoopy box, and which were found within her flat, were for her own consumption. She has pointed out the dangerous drugs she expected to consume in photograph 54 of the bundle. She says that she would have consumed all of the cannabis recovered and one bag of the “Ice”, which weighed 12 grammes, because Fung had told her that he would halve the “Ice” with her.
As for the herbal cannabis, at no stage in the VRI does she mention using cannabis. I cannot see any evidence in the photographs that she rolled her own cigarettes to smoke the cannabis which is how she said she consumed it. There is no evidence anywhere else in the papers which links the defendant to the consumption of this cannabis. As for the 12 grammes of “Ice”, that amount of “Ice” represents approximately $5,000 retail value. There is no evidence of any paraphernalia for the consumption of “Ice” in the flat. She lived on her own. You would have expected to see a bong.
I accept that she tested positive for methamphetamine in prison. I accept that she has abused drugs in the past. I do not accept that she is a long-term drug addict. From what she has said in court, it would appear that she is a social drug user whose habit varies. She did at one point suggest that she had been taking drugs on a daily basis for about a year before the offence, but I do not see how she could have afforded to do so. She certainly does not have the complexion or the acuity of a long-term addict. In fact, although I find her evidence contradictory, that is not for the lack of mental acuity but, rather, because the stories have varied so greatly it is not easy for her to maintain a consistent approach.
Mr Jim on her behalf submits that these were either her drugs or they belonged to her boyfriend and were kept in her flat. If so, it might very well be the case that she would consume some part of it. The issue for the court to decide is how much was she actually likely to consume and how to take that into account.
I have already mentioned that she was clearly stopped at a time she was carrying drugs for onward sale. I take the view that sale was going to be carried out by her or by her and Fung together. Of the total amount of 30.41 grammes of “Ice” recovered under both counts, she had 6.18 grammes within her waistbag subdivided into 11 bags. This part at least of the “Ice” recovered was not intended to be consumed by her. It was for sale. The remaining 24.23 grammes recovered from her home address were in nine separate bags. She now says she would have consumed 12 grammes of that “Ice”, but she no longer says that that would be at the rate of 0.5 grammes per day. She now says it would have been three times a day at the rate of 0.3 grammes each time. A habit of 1 gramme a day is a serious habit.
On the other hand, she gave evidence that she had last consumed “Ice” some five days previously. She does not therefore consume “Ice” on a daily basis. I do not believe that she consumed “Ice” at the rate of 1 gramme per day. Looking at the type and mix of drugs she possessed with an intention to sell, I find it is more likely that the “Ice” too would have been sold on but she may have consumed some very small part of it prior to purchasing more drugs for onward sale.
Mr Jim suggested that the court may consider a greater-than-one-third discount in line with HKSAR v Kong Tat Lung [2018] 5 HKLRD 635. The Court of Appeal in that case found that where a defendant submitted that part of the drugs in question were for their own consumption, then there was, first, an issue of whether that referred to a substantial amount of the drugs. If that were the case, then HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 would apply with the possibility of holding a Newton hearing to ascertain how much was for personal consumption. The case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 only applies in such cases. It does not apply here, as the amount to be allegedly consumed was not a substantial part of the drugs recovered. On the defendant’s own version, it was a small part of it. Where the suggestion is that only a part of the drugs, and not a substantial part of the drugs, are for self-consumption, then that is a matter for the court’s discretion to decide whether any and what degree of discount should be given.
The defendant already receives a significant form of discount with the calculation of a cocktail of drugs. I am prepared to discount sentence by 1 month to take into account the possibility she may have smoked some “Ice” prior to purchasing her next consignment. No more than that.
Sentence: the General Approach to Sentencing a Cocktail of Drugs
The court is aware that a number of different approaches can be adopted in respect of the sentencing of a cocktail of dangerous drugs in seeking to achieve a fair result reflective of the true culpability and blameworthiness of the defendant. That being the case, this is not a strict mathematical calculation even though there are mathematical guidelines to assist the court in achieving a fair and just result. There will inevitably be some degree of discretion even if it is limited to when to round up or down any such calculation although often it may stretch beyond such an exercise.
I am firstly going to deal with each drug individually to set a baseline for sentencing. I will deal with them in total and then by count. The narcotic content of the methamphetamine hydrochloride, “Ice”, to which I am adding the 0.72 grammes of methamphetamine recovered under Counts 1 and 2, is 30.41 grammes. The guideline authority for the sentencing of “Ice” where someone is accepted to be a storekeeper or courier is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Trafficking in between 10 to 70 grammes of “Ice” calls for a sentence between 7 to 11 years as a starting point after trial. As a consequence, trafficking in 30.41 grammes of “Ice” would attract an initial starting point of 8 years 8 months’ imprisonment without more.
Ketamine falls to be dealt with under HKSAR v Hii Siew Cheng [2008] 3 HKC 323. The total of the ketamine between the two counts is 115.25 grammes, but I am going to add the 0.43 grammes of MDMA which is considered to fall within the same potency range as ketamine. That would make 115.68 grammes. For between 50 to 300 grammes, the sentencing range after trial is 6 to 9 years. For 115.68 grammes, it would be in the region of 6 years 9 months’ imprisonment after trial.
The guideline authority for sentencing of cocaine is HKSAR v Lau Tak Ming [1990] HKLR 370. For trafficking in between up to 10 grammes of cocaine, the range of sentencing is 2 to 5 years. The appropriate starting point for sentencing for trafficking in 0.51 grammes is therefore 2 years. However, cocaine and “Ice” fall to be considered as similarly potent. If I added the 0.51 grammes of cocaine to the 30.51 grammes of “Ice” above, there would be an increase in sentence of 1 to 2 months only. Accordingly, that is how I intend to deal with the 0.51 grammes of cocaine at this stage. That is by adding it to the calculation of “Ice” above, for which there would now be a sentence of 8 years and 10 months as a starting point after trial.
The herbal cannabis was also a small amount. That is 3.03 grammes. HKSAR v Tuen Shui Ming [1995] 2 HKC 798 deals with the drug tariff cannabis resin, which is more potent, but gave a very broad indication that both cannabis resin and herbal cannabis would attract up to 16 months’ imprisonment for under 2,000 grammes. That judgment was in 1995 and that is not helpful today.
In HKSAR v Ng Tak Hung, HCMA 1074/1999, for 254.83 grammes of herbal cannabis, the sentence was 9 months. In HKSAR v Yau Ka Ming, CACC 144/2013, for 27.4 grammes, it was 3 months. Accordingly, for 3.03 grammes, I consider this quantity negligible. And following HKSAR v Yip Wai Yin, CACC 80/2003, per Yuen JA, I will not allocate a sentence for this drug in all the circumstances of the case.
If I were to sentence on the basis of the above individual amounts, the defendant would have faced an initial starting point after trial of 15 years and 7 months’ imprisonment. In addition, however, the court must consider whether her role indicated an enhancement of the starting point was required before any other aggravating or mitigating factors are taken into account. There is also the deduction of 1 month for self-consumption. I will deal with these later.
Totality
This is not a case where it would be appropriate to simply aggregate the individual sentences for each drug. The resulting sentence would be far in excess of the culpability of the defendant. Having considered the relevant authorities, the court considers the correct approach to be the combined approach considering the ratio of drugs.
As mentioned above, the court is really considering the ketamine, to which the MDMA was added, and the “Ice”, to which the cocaine was added. “Ice” is more potent than ketamine. That can be seen by the fact that 30.92 grammes of “Ice” with the cocaine carries a guideline sentence of 8 years 10 months’ imprisonment after trial, and yet 115.68 grammes of ketamine with the MDMA carries a 6 years 9 months’ sentence.
The total of those two amounts, the total weight of the drugs is 146.60 grammes, of which the ketamine plus MDMA represent 79 per cent, and the “Ice” plus cocaine represent 21 per cent. If the total amount of the dangerous drugs of 146.60 grammes were all ketamine, it would attract a sentence of 7 years and 2 months. If the total amount of drugs were all “Ice”, it would attract a sentence of 12 years and 4 months. When you calculate 79 per cent of 7 years and 2 months, it amounts to 68 months. And if you calculate 21 per cent of 12 years and 4 months, that amounts to 31 months which, when you put them together, makes 99 months and a starting point after trial of 8 years and 3 months, far less than either resulting figure if I were to consider any other test, including the conversion test and indeed, counsel will note, far less than the sentence for the “Ice” and cocaine.
Breaking a similar exercise down by count would result in a starting point of 5 years and 2 months’ imprisonment on Count 1 and 7 years and 10 months’ imprisonment on Count 2. If the aim is to achieve a sentence with an overall starting point of 8 years and 3 months, the court must then go on to consider the aggravating features which include the role and multiplicity of drugs as well as mitigation and the appropriate discount for plea and other matters.
Role
The defendant was an end supplier of drugs and was to make profit in cash or in kind from her onward sale. As such, she is slightly up the scale of trafficker. Therefore, the guideline sentence will be enhanced to give effect to that role. I take the view that the overall starting point should be enhanced by 6 months which in the event will be allocated as to 3 months on each count.
On the above individual starting points, that would be 5 years and 5 months on Count 1 and 8 years and 1 month on Count 2 or an overall sentence of 8 years and 9 months.
Aggravating Factors
Having found a suitable starting point for sentence, it must not be forgotten that this was a veritable cocktail of drugs allowing a dealer to reach a far greater market and encouraging users to buy more than one type of drug, making its abuse more deadly. This is an aggravating factor which must be marked by an enhancement of sentence of 6 months. Again on the individual counts, that would make 5 years 8 months on Count 1 and 8 years 4 months on Count 2 and an overall sentence of 9 years and 3 months, taking totality into account.
Given that the court has given limited credit for self-consumption, it would be inappropriate to enhance the sentence for the latent risk of her also supplying that which she reserved to herself to consume. In the circumstances of this case, there are no other mitigating factors which would reduce the sentence beyond the usual discount for guilty plea save for the issue of self-consumption above and other matters canvassed in respect of Fung.
The overall sentence of 9 years 3 months is subject to a discount of 1 month for self-consumption, making 9 years 2 months or 5 years 7 months and 2 weeks for Count 1 and 8 years 3 months and 2 weeks for Count 2. The defendant pleaded guilty at the first opportunity and for that, she deserves a full one-third discount to which for other matters advanced before me, I will allow an enhancement of just approximately 2 per cent which also takes into account the fact that the test applied above was distinctly to her advantage.
The final overall sentence therefore is 6 years. On Count 1, the defendant will go to prison for 3 years and 8 months. On Count 2, the defendant will go to prison for 5 years and 5 months, 7 months of the sentence on Count 1 to run consecutively to the sentence on Count 2, making a total sentence of 6 years.