Background
On 15 February 2020, Lai Sze-shing (hereafter “the accused”) was seen by police coming out of a hotel room in Castle Peak Road in Kwai Chung. He was intercepted and searched and was found to be in possession of a plastic bag containing 0.92 grammes of a crystalline substance containing 0.9 grammes of methamphetamine hydrochloride. He was arrested and cautioned. He admitted that he planned to take the methamphetamine hydrochloride downstairs to deliver to others.
On a search of the accused, the police found two mobile phones, cash of about $1,200 together with a key card for a room of a hotel, and it was the room outside which he was arrested.
The police gained entry to the room and found a number of items which included:
(1) six bundles of resealable plastic bags;
(2) 18 plastic bags containing a total of 288 grammes of a solid containing 199 grammes of ketamine;
(3) five plastic bags containing 7.55 grammes of a crystalline solid containing 7.43 grammes of methamphetamine hydrochloride;
(4) a plastic bag containing 11.1 grammes of a solid containing 6.73 grammes of cocaine;
(5) two inhaling devices containing traces of cocaine and ‘Ice’;
(6) five electronic scales;
(7) a notebook; and
(8) a sealing machine.
The police also found a piece of paper in the room with drug prices on it.
Overall, by reference to narcotic content, 199 grammes of ketamine, 7.43 grammes of methamphetamine hydrochloride and 6.73 grammes of cocaine were seized from the room. These drugs comprise the 2nd charge and the 1st charge is concerned with the drugs found in the possession of the accused as he left the hotel room.
Following entry into the room and the search uncovering amongst others the items just mentioned, the accused was arrested and cautioned. In answer of the caution, he said that the ‘K Chai’, ‘Ice’, cocaine and ‘5 Chai’ belonged to him and he planned to sell it to others. He said that the ‘Ice’ bottles belonged to him.
In a subsequent video-recorded interview, the accused admitted that he had rented the hotel room for trafficking. He told police he would pack the drugs with the packaging paraphernalia found in the room and pass the packaged drugs to others for sale. His supplier would call him to pass drugs to others and he would also repack and distribute drugs for others for sale. He told the police that he would go out to distribute the drugs three or four times a day and he would receive a reward of $6,000 a week, payable by the messaging service WeChat. In this regard, he said he had received $12,000 so far as he had been engaged in the endeavour for two weeks. He told the police that he trafficked in ‘K Chai’, ‘Ice’, cocaine and ‘5 Chai’. He confirmed that the paper found in the room contained drug prices written by him.
The estimated street value of the drugs found by the police are of the order of $200,000.
Antecedents and mitigation
The accused is Hong Kong born and bred. He is aged 33. He has been educated up to Form 2 in secondary school. He is ordinarily employed as a waiter but has been unemployed since September 2019. Counsel for the accused, Mr Kevin Wong, submits that his lack of educational opportunities had resulted in difficulties in obtaining long-term gainful employment. I accept that.
Mr Wong tells me he is a drug abuser and after the birth of his daughter in October 2020, the accused found it difficult to make ends meet. As a result, he succumbed to the temptation to traffic in dangerous drugs. The sad thing is that he has a common law wife who has apparently moved out, taking his daughter with her. This has made him desperately sad and he fears he will not be able to see them again. I hope he is wrong.
He has a criminal record, which features amongst others, convictions in 2016 for the possession of dangerous drugs. In addition to that, this case was supposed to be determined two weeks ago. The accused, through Mr Wong, asked me for time to consider further mitigation, and I have had the benefit of a heartfelt mitigation letter from the accused which reveals substantial insight into his criminal conduct. It is a letter which has assisted me greatly in the determination of sentence.
Procedural History
Following his arrest by the police, the accused was put up before a magistrate. In a result, on 14 December 2020, he appeared before Mr Cheang Kei-hong, sitting as a principal magistrate in the Eastern Magistracy. On that occasion, he pleaded guilty to a Charge Sheet which appears at page 36 of the record and admitted the set of facts which appears at page 33. The learned magistrate committed the accused for sentence to this court.
Sentencing Principles
Trafficking in ketamine, Starting Point
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as those which are the subject to the Charge Sheet in this case, particularly, perhaps, cocaine and methamphetamine hydrochloride. It is easy to see why, particularly, in relation to cocaine and methamphetamine hydrochloride. Both drugs have terrible consequences for the individual. They are both additive, and methamphetamine hydrochloride savagely so. Ridding oneself of such an addiction is, to say the least, a very arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. There are consequences - sometimes serious ones - for the families of those who become addicted to drugs. Perhaps of all people in this court room, the accused himself knows that the best.
So far as ketamine is concerned, it is a drug of real potential dangers. It has real consequences for individual. It is capable of being addictive. High doses can put people in hospital and can expose them to real health risks.
The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment and a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the dangerous drugs, the subject of the charge in this case.
In relation to ketamine, the sentencing guidelines for trafficking in ketamine, which were outlined in Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1, provided guidelines for up to 1,000 grammes of ketamine. For a quantity of 199 grammes of ketamine, a sentence of between 6 years and 9 years’ imprisonment is appropriate. That sentence is of course a sentence after trial.
In relation to methamphetamine hydrochloride, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. For trafficking in a quantity up to 10 grammes, this attracts a sentence of somewhere between 3 years and 7 years.
The source of the guidelines in relation to the trafficking of cocaine start with the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. The correctness of the guidelines in relation to cocaine were confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable sentencing guideline for quantities of up to 10 grammes indicates a sentence of between 2 and 5 years’ imprisonment.
Discount
The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.
Cocktail of drugs
In the present case, further sentencing challenges are provided by the fact that in Count 2 on this Charge Sheet, it alleges trafficking in, effectively, a cocktail of drugs. Plainly, it would be inappropriate to simply aggregate the appropriate sentences suggested by the guidelines for each of the drugs in this charge. That would be even less appropriate given that the sentencing guidelines for a quantity of methamphetamine hydrochloride are the same as for many times the quantity of the same drug in Count 2, and that consecutive to the aggregate of each of those drugs demonstrates the absurdity of such a situation.
What the appellate courts have done is to posit a series of tests to assist in the proper determination of sentence. In some respect, each of these tests has their own artificiality, but when viewed as a whole, they assist in the determination of the appropriate sentence.
The first of these tests is commonly known as the “absurdity test”. In this test, one treats the total weight of narcotic quantity of the drugs in question, that is, ketamine, cocaine and methamphetamine hydrochloride, and treats the total weight of the drugs as methamphetamine hydrochloride. If that were the case, on a mathematical application of the relevant sentencing range, the starting point would be in the region of 13 years and 6 months.
The next test is the “ratio test”. That test looks at the relative quantities of drugs on the premise of a mathematical application as a guideline for each of the drugs. This works out as follows:
That works out at something of the order of 8 years and 4 months.
A further test is the “conversion test” which runs as follows:
Step one, given the quantity of ketamine in this case, treat that as the base for the conversion test. The sentence for 8.33 grammes methamphetamine is approximately 6.3 years, that represents about 77.67 grammes ketamine. The sentence of 6.73 grammes of cocaine is about 4 years’ imprisonment, that represents about 10.38 grammes of ketamine.
Step two, combining the methamphetamine hydrochloride which were seized, which is equivalent to 77.67 plus 10.38 grammes of ketamine respectively with the ketamine that was seized, and that would result in 287.05 grammes of ketamine.
Step three, and the sentence this produces is approximately 8 years and 10 months.
I am greatly indebted to counsel for the prosecution and the accused for their assistance with the calculation under the various tests.
Role of the Accused
Also relevant to setting a starting point. It is necessary to identify the seriousness of the offence and the role of the accused in his act of trafficking. That there should be such an evaluation of the nature of the conduct of the trafficker was recently articulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974. The decision of the Court of Appeal considered the approach to sentencing when the role of the accused was that of an actual trafficker (as opposed to a storekeeper or courier). By “actual trafficker” the Court of Appeal had in mind a person who passes dangerous drugs to another.
In the present case, on any view, the accused is an actual trafficker. The combined impact of
(1) the evidence of him actually carrying drugs at the time when he was intercepted by the police;
(2) the quantity of drugs and the paraphernalia found in the room, which he admitted to the police;
(3) the piece of paper which had the drug prices;
(4) the admission by the accused he was trafficking at the behest of another, and
(5) the admissions made by the accused that he was trafficking for a weekly salary, and that he had been trafficking for something of the order of two weeks at the time the police intercepted him.
The foregoing makes me sure that he was an active trafficker selling on a retail basis and obtaining a reward for his activities. What is clear is that he was acting at the direction of another. The totality of the proved facts demonstrates that this is a serious act of trafficking.
In my judgment, based on the culpability of the accused in the present case, puts him fractionally over what would have been the mathematical outcome of the quantities involved when applied to the sentencing guidelines applicable to each of the three drugs in question.
Given the range of solutions applying the absurdity, ratio and conversion tests, I think an appropriate starting point would be 8 years and 8 months. I was mightily tempted to fix a higher starting point than that. I fix the starting point of 15 months’ imprisonment for Count 1.
Resolution
This is a serious case of actual active trafficking. As an addict himself, the accused would well understand the misery that his activities in commercially retailing drugs to others are likely to cause. He will also know that these kinds of drugs have an impact on family relationship, and in his case, his common law wife appears to have walked away from the relationship with their child. In due course, when this man leaves prison, it may be that there is something that he can do about that. I sincerely hope so.
Let us all hope that the combination of the sentence I must pass together with the impact on the accused might drive him to the realisation that there just has to be a better way. The accused will have opportunities in prison should he wish to take them up of the supplementing the meagre education which he has at the moment. He would be a fool to ignore those opportunities.
Would the accused please stand up. Could the accused please stand up. Doing my best to combine the imperatives of justice and mercy, taking account of the mitigation put forward by the counsel for the accused and the accused himself and applying the discount which the accused is manifestly entitled, the sentences are as follows:
Count 1: 10 months’ imprisonment.
Count 2: 5 years and 9 months’ imprisonment. Those figures are, as I say, after applying the discount.
While it is true that the drugs seized from the accused were representative of active actual trafficking, given the quantity of the drugs seized from him when the police first intercepted him, compared to the quantity of drugs in the room, I propose to order that the sentences run concurrently. And that is the order of the court.