COURT: On 3 March 2020, police officers carried out an anti-narcotics operation in the Wong Tai Sin area. At about 10.13 pm, Chan Ka-po, Jeff (hereafter “the accused”) was seen carrying a black backpack and crossing the street from Tung Lung Road towards Lok Sin Road. The officers observed that he appeared to be looking around and he attracted their suspicions. They approached him and revealed their identities.
A search was conducted and some items, later identified to be dangerous drugs, were found in his backpack. The dangerous drugs found (and subsequently analysed) are as follows:
(1) One transparent resealable plastic bag containing six transparent resealable plastic bags containing 10 grammes of a crystalline solid containing 9.98 grammes of methamphetamine hydrochloride;
(2) One transparent resealable plastic bag containing 13.7 grammes of a solid containing 11.7 grammes of ketamine;
(3) One transparent resealable plastic bag containing another 10 transparent resealable plastic bags containing 1.71 grammes of a solid containing 0.97 grammes of cocaine;
(4) One transparent resealable plastic bag containing another two transparent resealable plastic bags containing 1.51 grammes of a solid containing 1.4 grammes of cocaine;
(5) One transparent resealable bag containing another 10 transparent resealable plastic bag containing 1.72 grammes of a solid containing 0.96 grammes of cocaine; and
(6) One transparent resealable plastic bag containing another two transparent resealable plastic bags containing 1.36 grammes of a solid containing 1.14 grammes of ketamine;
(7) One transparent resealable plastic bag containing another two transparent resealable plastic bags containing 5.38 grammes of a solid containing 4.51 grammes of ketamine;
(8) One transparent resealable plastic bag containing another transparent resealable plastic bag containing 5.48 grammes of a solid containing 4.59 grammes of ketamine;
(9) One transparent resealable plastic bag containing another four transparent resealable plastic bags containing 2.56 grammes of a solid containing 2.14 grammes of ketamine;
(10) One transparent resealable plastic bag containing another 12 transparent resealable plastic bags containing 2.06 grammes of a solid containing 1.26 grammes of cocaine; and
(11) Two transparent resealable plastic bags containing 3.37 grammes of a crystalline solid containing 3.35 grammes of methamphetamine hydrochloride.
The accused was arrested for trafficking in dangerous drugs and cautioned. Under caution, the accused said that he intended to sell the drugs to others in order to earn some money.
During the course of the search of the accused, he was found to be in possession of two iPhones and cash totalling just over $18,000.
The accused submitted to an interview under caution and in that interview he told police that he had become acquainted with a male by the name of “Lion” who he knew to be a drug trafficker and who he knew to be hiring others to traffic in dangerous drugs. He became acquainted with him approximately four to five months prior to his arrest. At the time he was unemployed and agreed to traffic drugs for Lion for $100 for each successful delivery of the drugs and he would share in the proceeds of the drugs with Lion. The accused told police that at about 5 pm on 3 March 2020, he received a call from a person asking him to meet that person Langham Place for the collection of drugs. He told police he received the drugs at this place, put the drugs in his backpack and he knew that what he had placed in his backpack was in fact drugs. Subsequently, Lion contacted him and gave him information about clients, the quantity of drugs to be sold to clients and the price at which the drugs should be sold. He told the police that the drugs found in his backpack were the drugs to be sold but he was intercepted by the police before any were sold.
Street value of the drugs
The street value of the cocaine seized by the police was estimated to be worth just over $5,000. The street value of the ketamine seized by the police was estimated to be worth just over $12,200 and the street value of the methamphetamine hydrochloride was worth about 7,200.
Procedural history
The accused was taken before a magistrate on 6 March 2020. Eventually he came before Mr Cheang Kei-hong sitting as a permanent magistrate in the Eastern Magistrates’ Court. He pleaded guilty before the learned magistrate and admitted the facts, the essence of which I have outlined a little earlier. He was committed to this court for sentence.
Charge
The charge upon which the accused was committed is that contrary to section 4 of the Dangerous Drugs Ordinance he trafficked in dangerous drugs in Wong Tai Sin on 3 March 2020. The dangerous drugs were 13.37 grammes of a crystalline solid containing 13.33 grammes of methamphetamine hydrochloride, 28.48 grammes of a solid containing 24.08 grammes of ketamine and 7 grammes of a solid containing 4.59 grammes of cocaine.
Background and antecedents
The accused is 16. He was born in Mainland China. He is the holder of a Hong Kong Permanent Identity Card. He lives with his parents in Sheung Shui. He was educated to Form 2 and has hitherto a clear criminal record.
Counsel for the accused submitted that the accused committed this offence because he was seduced by the lure of quick money. As counsel observes (correctly in my view) this is a sad case because of the age of the accused. He is the only child of his family and both parents blame themselves for this conduct. Both of them are working people. Both of them are present in court today and that matters a lot. I have read the letter they have supplied and I am moved by their concern. The truth of the matter is that parents often do not notice the child going off the rails until something bad happens. The critical issue is in a sense what happens from here, that the parents are supportive of their child is going to go a long way towards the longer term rescue of this man.
I am informed by counsel, and I accept, that the accused is deeply remorseful for his misconduct. He made full admissions. Of course, it is inevitable that he will be sent to prison and for quite some time. I earnestly hope that the accused will take the fullest advantage of the educational opportunities afforded by the Commissioner of Correctional Services to prisoners and that the accused will leave prison a better person than the young man who walked in.
Sentencing principles
Starting point - Trafficking
The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment.
However, worse than that, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs such as ‘Ice’. Further, the conduct of persons affected by ‘Ice’ in private, and possibly more pertinently in public, can be quite dangerous. The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
Cocaine and ketamine are also drugs which expose the person who uses them to serious problems, and that is probably particularly so with respect to cocaine. It is addictive. Ketamine is a psychoactive drug and can cause serious consequences as any professional who works in any emergency room in a public hospital in Hong Kong could readily attest. Both of these drugs have serious consequences, not just for the user, but also families of users and the wider community.
To reflect the serious view that the courts and community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of dangerous drugs, including ‘Ice’, cocaine and ketamine, and that is the subject of the charge in this case. The maximum penalties provided under the law is a fine of $5 million or life 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’. In the present case, the methamphetamine hydrochloride amounts to 13.3 grammes and that would attract a sentence in the range of 7 to 11 years, which is the band for 10 to 70 grammes.
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370, in 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 (above) are appropriate for cocaine. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. In the present case, the quantity is 4.9 grammes. It is also in the sentencing bracket of 2 to 5 years for up to 10 grammes.
In relation to ketamine, the sentencing guidelines for trafficking in ketamine which were outlined in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. That laid down guidelines for up to 1,000 grammes of ketamine. The quantity involved in this case is 24.08 grammes and that would attract a sentence in the range of 4 to 6 years for 10 to 50 grammes.
The cocktail of drugs
The fact that the accused had a variety of drugs presents a difficult sentencing challenge. That has been recognised in many of the authorities. Indeed, there are cases where the fact that there is present a cocktail of drugs might be considered an aggravating factor. In my judgment, that is not this case. Certainly, if the drugs were treated individually and the sentences aggregated, that would be, and is here, destined to produce a sentence which is so high as to be unjust. It is, perhaps, best represented in the decision of the Court of Appeal in HKSAR v Chan Yuk Leong [2013] CACC 318/2013. There, the court suggested that the sentencing court should approach the sentence for a case where the accused is found trafficking in a variety of drugs in a realistic and common sense manner. To this end, the court propounded three tests to consider the appropriate sentence. These are:
(1) “absurdity test” - the court assumes that the entire quantity seized contained only the most potent drug;
(2) “conversion test” - the court compares the guidelines applicable to different drugs to arrive at a conversion rate so that a single outcome could then be applied to the entire quantity seized; and
(3) “ratio test” - the court will take into account the ratio of the weight of different dangerous drugs and their related range of sentence.
Each of the tests propounded assumed a mathematical starting point for individual drugs by reference to the established sentencing guidelines for those drugs.
Applying the absurdity test upon the premise that methamphetamine hydrochloride is the most powerful drug, then on the premise that the entire quantity of drugs to be taken into account, a starting point of 9 year and 2 months would result.
If the conversion test was to be considered and all of the drugs converted into methamphetamine hydrochloride, the calculation comes to a starting point of 7 years and 7 months. On the premise that the drugs were converted into cocaine, a starting point of 8 years and 1 month would be the result. If the drugs were converted into ketamine, the conversion test would be 7 years and 7 months.
If the ratio test were applied, then the total sentence would be of the order of 6 years and 11 months.
Counsel for the parties have agreed the calculations propounded by counsel for the prosecution. I am deeply grateful for their reference in relation to this. Counsel for the accused urges that the most realistic approach stems from the calculations based on the combined approach for methamphetamine hydrochloride; I agree. That said, there is no perfect answer to sentencing for this quantity of drugs.
There is a further dimension to sentencing which is germane to this case. That dimension is about the figures which are the basis for calculation on each of these three tests need to be considered against the guidance provided by the Court of Appeal in HKSAR v Herry Jane Yusuph [2020] HKCA 974 as to the interaction between the guidelines and the role of the accused. This is because, of necessity, calculations on the tests propounded in the authorities in relation to the calculation appropriate where there is trafficking in more than one dangerous drug is done on a mathematical basis. In an appropriate case, as the Court of Appeal pointed out in Herry Jane Yusuph (above), a strict mathematical approach may not be apposite.
The considerations of this case inspired by Herry Jane Yusuph (above) are as follows. The first and most important is the role of the accused. At the time of the interception by the police, he was carrying the drugs, but on his own admission, at the time of interception, he was going to undertake retail trafficking. He had simply not got to that yet. It seems to me that this conduct is more serious than one of the various forms of courier. The Court of Appeal in Henry Jane Yusuph (above) contemplated movement within and, possibly outside a recommended sentencing band for the relevant drug involved. It eschewed a discretion less application of a mathematical calculation based on quantity of drugs within the sentencing band. In this case, the accused was intercepted by an alert set of police officers before he actually got to commence retail trafficking. There is no suggestion in his conduct, or his words to the police, which suggested that he had actually accepted the drugs from “Lion’s” confederates but was going to bail out of the retail trafficking part of the deal. Accordingly it seems to me, on an assessment of role in the instant case, something close to the mathematical outcome happens to be an appropriate starting point for this case.
It would be right to point out that the decision in Yusuph (above) was not published at the time of the conduct, the subject of the indictment in this case. The notion that the role of the accused is relevant to the assessment of sentence is not new. In any event, the application of that case to the present set of circumstances works marginally in the favour of the accused.
Discount for plea of guilty
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.
Application of sentencing considerations
Applying the sentencing considerations outlined earlier in these reasons, it seems to me that the combined approach best approximates the justice of this case. However, as this is premised on a mathematical calculation, I should indicate I intend to go slightly below the mathematical outcome of the approach which I favour. Accordingly, 7 years and 7 months on the conversion test is the starting point for consideration. However, I intend to go fractionally below the mathematical outcome of the conversion test to which I have just made reference. Accordingly, my starting point is 7 years and 6 months.
The accused is 16 years old. He is a person of no previous convictions and was clearly tempted with short-term profits by an established drug trafficker. I should say this: heaven help “Lion” if he ever turns up in this court. It is the grossest understatement to say that what we see on the part of the accused is some appallingly poor decision-making to embark on the course that he embarked on. However, maturity of judgment and insight into consequences is not the hallmark of a 16-year-old male. There are, as any parent would know, much more pointed and possibly profane ways of asserting that proposition. The least profane way that I can think of that a parent might say is, “What in heaven’s name were you thinking?”. I fear that I will be accused of over-generosity, but I propose to take an additional 2 months off the starting point for previous good character and a solid dose of monumental stupidity on the part of the accused. Thus, my starting point is 7 years and 4 months.
The accused is, of course, entitled to a full one-third discount for having the good sense to plead guilty at the earliest practical moment. Good sense is something the accused is going to need in spades in the future. Perhaps, the phrase “better late than never” is apposite in this case.
Disposition
Would the accused please stand up? In many respects, the conduct of the accused in this case is the sum total of every parent’s nightmare. Looking at it from the perspective of the accused is that the agreement to become involved in this enterprise was an act of monumental stupidity although I have no doubt that he appreciated what he was doing was wrong. Long lines of authority recognise the inevitable outcome, including for younger members of the community, must be prison. That is so even for a first offender, particularly for quantities of drugs such as those to be found here. As I indicated earlier in these reasons, I can only hope that while in prison the accused takes every possible opportunity to take advantage of the educational opportunities offered by the Commissioner of Correctional Services. He would be a fool not to do so. The other thing I hope occurs while in prison, not simply because he is going to be punished for the most stupid and immature decision of his life, is that the accused attains a dose of maturity whilst in prison. He owes that to his parents and, more importantly perhaps, he owes that to himself to come out of prison, as I have said earlier, a far better person than the one who walked in.
Applying the inevitable arithmetic calculation applicable to drug trafficking cases, the least sentence I can pass on you is a sentence of 4 years and 10 months, and that is the order of the court.