A search of the accused was undertaken by the police. The search produced as follows:
(1) Three resealable plastic bags containing a total of 27 transparent resealable plastic bags containing a total of 4.31 grammes of a solid containing 4.07 grammes of cocaine;
(2) a red packet envelope containing six transparent resealable bags containing a total of 9.92 grammes of a crystalline solid containing 9.89 grammes of methamphetamine hydrochloride;
(3) 22 resealable plastic bags containing a total of 22.2 grammes of a solid containing 17.87 grammes of ketamine; and
(4) a transparent resealable plastic bag containing a total of eight transparent resealable bags containing a total of 1.20 grammes of a solid containing 1.11 grammes of cocaine.
Also found in the possession of the accused was a mobile phone and cash in the sum of $1,300. The accused was arrested and cautioned and in reply said, “Ah Sir, the dangerous drugs are not mine, I only bring to distribute to someone.”
The accused submitted to a video-recorded interview under caution, and he described how he was recruited by a person to deliver drugs. The accused was told that he would need to deliver some substance similar to cocaine. The accused told police he was hesitant about whether he should do such work, but eventually agreed and collected the drugs that had been seized from him. He attributed the arrangement to his recruiter. The accused told police that the person who delivered the drugs to him put them in his pants pocket just prior to the police coming on the scene. He actively thought about returning those drugs to the person from whom he had just received them. However, the arrival of the police provoked him to run and he was arrested.
Based on the admissions under caution by the police, the inference I draw is that the accused was not a retailer, although the drugs were in a form for retailing. Based on his admissions, it is clear to me he was simply a person passing drugs to be retailed by another person. It is not clear whether the person to whom he was expected to pass the drugs was the retailer but it was plain beyond argument that eventually those drugs would be retailed.
The estimated retail value for all the drugs seized in this case is just under $26,000.
The overall quantities in which the accused was trafficking are 5.51 grammes of a solid containing 5.18 grammes of cocaine; 9.92 grammes of a crystalline solid containing 9.89 grammes of methamphetamine hydrochloride; and 22.20 grammes of a solid containing 17.87 grammes ketamine.
Procedural History
Following his arrest, the accused was put up before a Magistrate on 18 March 2020. The case proceeded to committal on 22 February 2021. Mr Daniel Tang, sitting as a permanent magistrate, having heard the accused plead guilty and admit the Summary of Facts which appears in the court file, committed the accused for sentence to this court.
He has appeared in this court represented by able and experienced counsel and who has confirmed his plea and his admission to the facts, and on that basis I convict him.
The Antecedents and Mitigation
The accused is a Hong Kong permanent resident having been born here on 30 April 1994. That makes him 27 at the moment. He has a clear record. Counsel for the accused has made detailed submissions about the background of the accused, all of which have been very helpful. The accused is single. He was unemployed at the time of his arrest but previously worked as a part-time waiter and clothing salesman. The accused attained Form 5 at secondary school and at the conclusion of his schooling, he attended design school.
The accused suffers from metabolic arthritis and has so since he was 16. He is required to take medication for that. The common name for his condition is gout. However, the medical evidence taken together with the information supplied by counsel for the accused would suggest that this is a hereditary debilitating condition which renders the accused substantially less able than many persons to work. Clearly, he is liable to suffer from his condition for the rest of his life, and that is a matter of serious and substantial concern.
The accused, through his counsel, has informed the court that the cause of him taking part in the drugs trade in the manner that he did was that he managed to run up a massive credit card debt and succumbed as an easy way out. He mentioned in his video-recorded interview that he was in doubt as to whether he should go along with the scheme that was proposed, but eventually succumbed. I accept as true what he said and it is regrettable that, borrowing from Abraham Lincoln, He did not listen to the better angels of his nature.
I have read a number of letters written in support of the accused and I could not have failed to be moved by the kind thoughts therein and the support available to this accused. He has a loving and concerned family which no doubt will carry him through his time in prison.
Sentencing Principles
Seriousness of the Offence
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 of the charge in this case, and particularly, 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 addictive, and methamphetamine hydrochloride savagely so. Ridding oneself of that addiction is, to say the very least, an 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. The ingestion of ketamine is also an extraordinarily dangerous things to do, and even a brief visit to the accident and emergency department of public hospitals would demonstrate the dangers of its dissociative and possibly hallucinogenic effects and the distortion of sight and sound. It is capable of affecting the ability to breathe and the blood pressure of a person.
The view of the Hong Kong community is reflected in the maximum sentence provided by section 4 of the Dangerous Drugs Ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of sentences and the 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 drugs, the subject of the charge in this case.
So far as ketamine is concerned, the relevant sentencing guidelines are to be found in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, § 95. For quantities between 10 grammes and 50 grammes, the suggested sentencing range is 4 to 6 years.
The guidelines in relation to the trafficking of cocaine start with the decision of R v Lau Tak Ming & Ors [1990] 2 HKLR 370. In the Attorney General v Rojas [1994] 1 HKC 342 and The Queen v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in Lau Tak Ming & Ors (above) are appropriate for cocaine. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable sentencing guidelines for quantities below 10 grammes is between 2 and 5 years’ imprisonment.
In relation to ‘Ice’, 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 below 10 grammes of ‘Ice’, a suggested guideline is imprisonment for between 3 and 7 years. The range in question is upon the basis of sentences following a conviction after trial. That is the basis on which the starting point is calculated.
Discount for Plea of Guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment, that a discount from the appropriate starting point of 33 per cent would be applicable.
Cocktail of Drugs
In this case, the accused was trafficking in three separate dangerous drugs. This requires a consideration of the appropriate sentence, taking account of the relative potency of the drugs. Generally speaking, to simply aggregate the sentences appropriate for individual drugs would be to produce an unjust result. That would be the case in the present situation as it would produce a total just short of 15 years’ imprisonment as a starting point. The injustice of such an approach is self-evident. As a result, the Court of Appeal in HKSAR v Chan Yuk Leong CACC 318/2013 propounded a series of tests which should be considered in order to arrive at the appropriate sentence.
The calculations for the various tests are as follows:
(1) “Absurdity test”: 8 years and 6 months.
(2) “Conversion test”: (for cocaine) 7 years and 11 months; (for methamphetamine hydrochloride) 7 years and 4 months; and (all ketamine) 7 years and 3 months.
(3) “Ratio test”: 6 years and 5 months.
(4) “Combined approach”: 6 years and 11 months (on the basis that the methamphetamine hydrochloride is the appropriate drug for the “base”).
These calculations were worked out on the basis of the mathematical approach to the starting point in the guidelines. I am very grateful to both counsel for their assistance in this regard.
Role of the Accused
It is critical to determine the role of the accused in the crime (see HKSAR v Herry Jane Yusuph in [2021] 1 HKLRD 290, [2020] HKCA 974, § 49, 58-61, 64-68). In this case, the Court of Appeal recognised that although the analytical starting point for the sentencing guidelines for drugs starts upon the premise of sentencing for a courier or a storekeeper, there is a range of culpability even if a trafficker can be characterised, as in this case, a courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking-in-dangerous-drugs cases where sentence was based solely on narcotic content.
Where a court considers it appropriate to impose a sentence above or below that mathematical application of the relevant guideline, it would be appropriate to adjust the outcome where a calculation is done on the basis of there being a cocktail of drugs.
It seems to me that the debilitating condition from which the accused suffers is likely to provide at least some explanation of why, contrary to his first instincts, he agreed to traffic in dangerous drugs. Clearly, the range of options available to this man is substantially less than an ordinary person as a result of his disability. This proposition pulls in two directions. The first is it does not matter why somebody got into trafficking in dangerous drugs, the fact that a person did traffic in dangerous drugs is the bad thing. The second direction in which it pulls is, as I say, the economic and social pressures on this man are substantially greater than average and may, as a result of that, have rendered him more liable to succumb to the blandishments of drug traffickers. In the instant case, I view the situation as more likely to be heading in the second direction, and I will, accordingly, make a small adjustment to the sentence which otherwise would have been appropriate.
Application of Sentencing Principles
There is no perfect answer to the imposition of a just sentence where the court is faced with the choice between the outcome of tests which are appropriate in cocktail-of-drugs cases. It is to be remembered that these tests propounded by appellate courts and the ensuing calculations are propounded on the basis that a trafficker with a collection of different drugs is possibly able to cater to a wider market. Although, as shortly will appear, I have come to the view based on the facts admitted, including what the accused said under caution in his video-recorded interview, the accused was not by himself the retailer but the carrier of drugs from supplier to possibly the retailer. The point is not diminished by that because, ultimately, he is facilitating the ultimate retailer being able to cater to that wider market. The just outcome here is probably the combined approach on the basis of a calculation of the base drug being methamphetamine hydrochloride.
As is foreshadowed in the preceding paragraph, the next consideration to be factored in is an assessment of the role of the accused. Clearly, as has been noted earlier in these reasons, the role of the accused, despite having an array of drugs in retail form, is to regard him as a minor league courier. On that basis, although the intended role of the accused (until that role was interrupted by an alert piece of police work) was to convey the drugs from one source to another person. The intended recipient of the drugs might have been (but not necessarily was) the ultimate retailer. It is unclear from any of the admissions whether the intended conveyance of the drugs involved travelling any significant distance. What I have done is attempted an overall assessment of the role of the accused. I fully recognise the imperfection of such an assessment. In my opinion, it would be appropriate to adjust the outcome of the calculations downward rather than recalculate it. On that premise, I have reduced the combined approach outcome to 6 years and 6 months.
As I have already indicated, the substantial disability that this man faces was a factor in his succumbing to the temptation to assist the drug traffickers. I have decided to reduce the overall starting point by a further 2 months to reflect this. Accordingly, the starting point of 6 years and 4 months is appropriate.
Disposition
Would the accused please stand up? As I have earlier indicated, if ever there was a person who should have gone with his first instincts, it is this man. Obviously, everyone should not give into temptation, but given the background and family support of this man, the only realistic conclusion is that he should not have done what he did and it is to his credit that he pleaded guilty at the first opportunity. That plea is certainly much more consistent with the kind of person the accused should have listened to when he made his fateful decision to turn to the path of drug trafficking. That person ought to take every advantage of training and education available in prison with all the advantages it must bring to this accused if it is undertaken with full vigour. That is even more so given the lifelong disability he faces. While nobody would suggest, ever suggest, that prison is a good thing, taking advantage of those opportunities and training and education might be
the best thing that has happened to the accused hitherto. Doing the best I can to combine justice with mercy, I order that he be imprisoned for 4 years and 2 months.