COURT: On 26 September 2019, at just before 11.30 am, two Customs officers were working in the Departure Hall of the Passenger Clearance Building at the Hong Kong-Zhuhai-Macau Bridge area. Lee Chung Manuel Luis (hereafter “the accused”) was intercepted and subjected to a search.
Following the search, the officers found the following:
(1) one large transparent resealable bag containing 57 small resealable bags containing a substance which was found to be 26.8 grammes of a solid containing 23.2 grammes of ketamine;
(2) one large resealable bag containing 54 transparent resealable bags containing a substance found to be 24.9 grammes of a crystalline solid containing 24.5 grammes of methamphetamine hydrochloride;
(3) one large transparent resealable bag containing 107 small transparent resealable bags containing a substance found to be 20 grammes of a solid containing 17.8 grammes of cocaine;
(4) one large transparent resealable bag containing 122 transparent resealable bags containing a substance found to be 22.6 grammes of a solid containing 19.9 grammes of cocaine; and one large transparent resealable bag containing 128 transparent resealable bags containing a substance found to be 23.3 grammes of a solid containing 20.7 grammes of cocaine.
The accused was arrested and cautioned. In answer to the caution, he admitted that:
(1) he knew the substance was dangerous drugs but he was not sure what drugs they were;
(2) he had been given the dangerous drugs by a male at the Hong Kong-Macau Ferry Pier and was asked to take that from Hong Kong to Macau via the Hong Kong-Zhuhai-Macau Bridge;
(3) that male had promised to give him $5,000 for bringing the drugs to Macau; and he had no means of contact with that male.
During a further cautioned interview, the accused remained silent.
At the time of the interception, the accused was also in possession of small amounts of cash and two mobile phones.
The street value in September 2019 of the drugs was $118,586.
Procedural history
Following the arrest of the accused, he was taken before a magistrate on 28 September 2019. In the result, on 27 October 2020, the accused appeared before Mr Cheang Kei-hong, sitting as a permanent magistrate in the Eastern Magistrates’ Court of Hong Kong. At the time he entered a plea of guilty before the learned magistrate, he admitted the summary of facts, which has been reflected earlier in the sentencing remarks, and was committed to this court for sentence.
The charge
The charge on which the accused was committed avers, so far as the drugs are concerned, that he trafficked in:
(1) 26.8 grammes of a solid containing 23.2 grammes of ketamine;
(2) 65.9 grammes of a solid containing 58.4 grammes of cocaine; and
(3) 24.9 grammes of a crystalline solid containing 24.5 grammes of methamphetamine hydrochloride.
Antecedents and mitigation
The accused was born in Macau and is 42 years of age. He holds a Macau identity card. He has no previous convictions in Hong Kong. He is a married man and has a 9-year-old son. He is employed as a water supply technician and in that regard earned about 16,000 Patacas a month or so.
I am told and accept that the older brother and older sister of the accused have been taking care of the accused’s son. The accused recognises the imposition he has made upon his brother and sister and for the difficulties caused by him having committed a serious crime. I am pleased to be informed by counsel that the brother and sister have forgiven him.
I have received a letter from his son aged 9. Impressively, the letter is in the son’s handwriting and although it is brief it is quite powerful. He recognises that his father has done something wrong but, more importantly, he hopes for a reuniting with his father as soon as possible.
I am also told that since October 2019 the accused has sought solace and guidance from religion. To this end, he has participated in the religious classes organised by the Hong Kong Christian Kun Sun Association. This is one of the factors which has moved the accused to a determination to start a new life and to stay away from criminal activities. He hopes at the conclusion of his sentence to start anew with his work and his son and to become a good citizen, and all of that is to be encouraged.
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, perhaps particularly cocaine and methamphetamine hydrochloride, and it is easy to see why, particularly once again in relation to cocaine and methamphetamine hydrochloride. Both drugs have terrible consequences for the individual. They are both addictive and methamphetamine hydrochloride perhaps savagely so. Ridding oneself of that addiction is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine or methamphetamine hydrochloride is fraught with instances of disappointment. There are consequences - sometimes serious ones - for the families of those who become addicted to these drugs. On the premise that the drugs were to be sold in Macau, the fact that they will not place a burden on the community and health services in Hong Kong is of no comfort. The community of Macau will have to carry the burden of that.
Hong Kong has for many years been the signatory through the British and colonial times and now the People’s Republic of China, under the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Drugs of 1988 to fight the scourge of drug trafficking. However, while trafficking between Hong Kong and Macau is not to traffic across an international border because both are part of the People’s Republic of China, in my view, the same principles apply. Hong Kong has just as much interest and concern in suppressing trafficking to Macau as it would as if these drugs had been received and remained in Hong Kong.
The view of the Hong Kong community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment and 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 the sentences and levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking 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.
The first step in the determination of the appropriate sentence is to identify the harm concerned. Adopting the analysis in HKSAR v Herry Jane Yusuph [2020] HKCA 974, the first and most obvious harm is the serious nature of cocaine, ‘Ice’ and ketamine, as I have identified. As I have already identified, the fact that this was destined for another place simply means the harm might be experienced elsewhere as opposed to Hong Kong, but that does not diminish the harm.
So far as ketamine is concerned, the relevant sentencing guidelines are to be found in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, § 95. For quantities between 10 grammes and 50 grammes, the sentencing range is 4 to 6 years’ imprisonment.
The source of guidelines in relation to the trafficking of cocaine starts from the decision of the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342 and R 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 is reconfirmed in the decision of Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. In that case, the court considered guidelines for cases where the quantity was greater than 600 grammes.
The applicable sentencing guidelines for a sentence for quantities of between 50 grammes and 200 grammes is a sentence of between 8 and 12 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 between 10 grammes and 70 grammes of ‘Ice’, suggested guidelines are imprisonment for between 7 and 11 years. The range in question is on the basis of sentence following conviction after trial. That is the basis on which a starting point is to be calculated.
Enhancement for cross-border trafficking
The courts of Hong Kong have for many years recognised that an aggravating factor in the trafficking of dangerous drugs is taking them across the borders of Hong Kong. The policy which underlies this is deterrence. The authorities which articulate this policy include HKSAR v Hong Chang Chi [2002] 1 HKLRD 486, HKSAR v Abdallah (above), and also HKSAR v Chung Ping Kun [2014] 6 HKC 106. In Chung Ping Kun, § 9, after an extensive review of the authorities, the Court of Appeal suggested an appropriate enhancement where the drugs fall between 500 grammes and 1,000 grammes be between 1 year and 2 years. For quantities less than that, there is a discretion reposed in the court.
Discount for plea of guilty
The well-accepted principles of sentencing recognise that, where an accused person pleads guilty at the earliest practicable moment, a discount from the appropriate starting point of 33 per cent would be appropriate.
Cocktail of drugs
In this case, the accused was intending to take three separate dangerous drugs to Macau. That requires a consideration of the appropriate sentence taking account of the relevant potency of the drugs. Generally speaking, to simply aggregate the sentences appropriate for the individual drugs would produce an unjust result and certainly would do so in this case. As a result of that, the Court of Appeal in HKSAR v Chan Yuk Leong in CACC 318/2013 propounded a series of tests which should be considered in order to arrive at the appropriate sentence. In outline, these tests consider the sentencing exercise as follows:
(1) absurdity test: the court assumes the entire quantity seized contain 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 be applied to the entire quantity seized; and
(3) the ratio test: the court will take into account the ratio of the weight of different dangerous drugs and their related ranges of sentence.
Applying the calculation on a purely arithmetic basis, the calculation for ketamine would be a starting point of 55.92 months; for cocaine, 98.69 months; and, for ‘Ice’, 95.6 months.
In applying the absurdity test, by a slight margin, ‘Ice’ is the most potent drug. Given that the total quantity of drugs is 106.1 grammes on a purely mathematical basis, that brings us to 139.51 months or 11 years and 7 months’ imprisonment.
In applying the conversion test, converting the total quantity of ketamine and cocaine to ‘Ice’, the total quantity would be equivalent to 57 grammes of ‘Ice’. On that premise, the starting point would be 121 months or 10 years and 1 months’ imprisonment.
In applying the ratio test and on the premise that the total quantity of drugs is 106.1 grammes, and looking at the proportions of that total that ketamine, cocaine and ‘Ice’ are, that produces a starting point of 112.3 grammes. That is, 9 years and 4 months.
The use of all of these tests is simply a means to a fundamental end: to arrive at a just sentence in the circumstances. The tests are imperfect and somewhat artificial, but, taken as a whole, they point in a direction which is clear. It is certainly not necessarily appropriate to simply pick one result produced by one test or the other. That rather misses the point of the tests.
The other dimension about the figures which are the basis for calculation in each of these three tests may in some circumstances need to be considered against the guidance provided in HKSAR v Herry Jane Yusuph (above) as to the interaction between the guidelines and the role of the accused. In that case, the Court of Appeal indicated that, when considering the role of the accused, it may be appropriate to avoid a mathematical calculation of a particular quantity in the context of a particular band in the guidelines. In short, some discretion in applying the guidelines should be exercised when considering the role of the accused. Here, however, the role of the accused is that of a courier for a reward. As will shortly appear, I do not consider that a strict mathematical approach should be applied when dealing with the role of this particular accused, although something close to a mathematical approach is appropriate, given his role.
Cross-border element
It seems to me that an enhancement of 3 months would be appropriate although I perfectly recognise that a greater enhancement could be readily justified.
Starting point
It seems to me that a starting point of 9 years and 6 months would mete the justice of the case, to be enhanced, as I say, by 3 months.
A discount for the plea of guilty of one-third is entirely appropriate in this case.
Would the accused please stand up?
Disposition
This case involves a young man being tempted to traffic in dangerous drugs with the hope of a quick, short-term profit. In giving in to that temptation, he has done serious damage to his own life and has caused harm to his family and to his son. Thankfully, he recognises the monumental stupidity of his course of conduct and is determined to reform himself. That is to be wholeheartedly encouraged. He should strive to leave prison a better man than the one that walked into prison.
There is something remorseless about the arithmetic involved in sentencing for trafficking in dangerous drugs. There is an easy explanation: sentencing for trafficking in dangerous drugs of this nature has to be about deterrence. Taking all I can in favour of the accused, I order that the accused be sentenced to 6 years and 6 months’ imprisonment, and that is the order of the court.