COURT: The defendant, Wong Ka-tuen, pleaded guilty to one count of trafficking in dangerous drugs which concerned 512.1 grammes of a crystalline solid containing 512.1 grammes of methamphetamine hydrochloride and 16.9 grammes of a solid containing 14.6 grammes of ketamine.
At around 11.15 pm on 29 November 2018, PC19538 (hereinafter referred to as “PW1”) and PC19246 (hereinafter referred to as “PW2”), who were carrying out anti-narcotics operation, entered Flat C, 6th Floor, Cameron Road, Tsim Sha Tsui, Kowloon (hereinafter referred to as “the premises”) with a search warrant. Upon entry, the defendant was found sitting on a bed facing the door of the premises. PW2 conducted a house search and found the following items:
Inside a paper box in the cupboard of the kitchen:
(1) 92 plastic bags containing a total of 512.1 grammes of methamphetamine hydrochloride (hereinafter referred to as “‘Ice’”);
(2) two plastic bags containing a total of 16.9 grammes of a solid containing 14.6 grammes of ketamine;
(3) one inhaling device (consisting of one plastic bottle inserted with a plastic straw with a glass tube with a bulb shape at one end) containing 61 millilitres of a liquid containing 0.47 grammes of ‘Ice’; and
(4) one inhaling device (consisting of one plastic bottle inserted with a plastic straw and with a glass tube with a bulb shape at one end) containing 80 millilitres of a liquid containing 0.38 grammes of ‘Ice’.
Near the floor of the cupboard inside a black and yellow recycle bag:
(5) one plastic bag containing many plastic straws;
(6) seven plastic bags containing many transparent resealable plastic bags;
(7) one transparent resealable plastic bag with red line containing many transparent resealable plastic bags;
(8) four transparent resealable plastic bags containing many transparent resealable plastic bags;
(9) a fountain pen in red;
(10) one lighter;
(11) one digital scale; and
(12) one sealing machine.
In the living room:
(13) a mobile phone.
At around 00.10 am on 30 November 2018, PW1 arrested the defendant for trafficking in a dangerous drug. Under caution, he admitted that a person known as Sai Fung had given him those dangerous drugs for repacking and he would be given $5,000 as a reward.
Between 9.09 pm and 10.09 pm on the same day, PW1 conducted a video-recorded interview with the defendant. Under caution, the defendant admitted that:
(1) He came to know Sai Fung in a bar in October 2018. He told Sai Fung that he was in need of money and Sai Fung offered to pay him $5,000 as reward for repacking ‘Ice’ and ketamine at home.
(2) He and Sai Fung exchanged phone numbers and communicated through WhatsApp.
(3) Since November 2018, he, together with his girlfriend, resided in the premises which was rented on his behalf by his younger brother, Wong Man-wah. The purpose of renting the premises was for repacking dangerous drugs.
(4) Two to three days after he moved into the premises, Sai Fung began to deliver dangerous drugs including ‘Ice’ and ketamine as well as paraphernalia like electronic scale, plastic bags and sealing machine, etc to him.
(5) The mobile phone seized in the premises belonged to him. It contained WhatsApp messages and photos between himself and Sai Fung in relation to dangerous drugs.
(6) Sai Fung instructed him on how to repack the drugs. He would then deliver the drugs to some unknown persons downstairs.
(7) He had made two ‘Ice’ bottles for himself and he hid them inside the cupboard. He was a habitual ‘Ice’ user and used to consume ‘Ice’ in the toilet. And
(8) All the dangerous drugs found in the premises and shown to him during the video-recorded interview were the dangerous drugs given to him by Sai Fung which he had repacked into smaller packets.
The retail value of the drugs seized as at January 2019 was estimated to be $280,631 for ‘Ice’ and $8,298 for ketamine.
The defendant admits and accepts that at all material times he possessed all seized dangerous drugs for the purpose of unlawful trafficking.
The defendant was born in Hong Kong and he is now aged 48. He was educated up to Primary 6 level. At the time of his arrest, he was a part-time tattooist and he has lived with his girlfriend at the offence location.
The defendant has a total of 70 convictions recorded against him. On 38 occasions, including 12 charges of possession of a dangerous drug, two charges of trafficking in a dangerous drug in 1997 and 2014 and two charges of possession of equipment fit for inhaling drugs. He was last discharged from prison on 27 January 2018.
Mr Hui, counsel for the defendant, submits that the defendant made full confession at the very earliest stage. He committed the offence for quick money. He received $5,000 for repacking the dangerous drugs at home. Mr Hui submits that adopting the combined approach, the appropriate starting point should be around 18 years and 6 months’ imprisonment. The defendant shows his remorse by his guilty plea at the earliest opportunity which saves the court’s time and resources. The defendant understands the seriousness of the offence and he asks for leniency.
My attention is drawn to the following cases:
(1) HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The case provides sentencing guidelines for trafficking in ‘Ice’.
(2) Secretary for Justice v Hii Siew Cheng, CAAR 7/2006. That is the tariff case for trafficking in ketamine.
(3) HKSAR v Ko Ka Hing [2009] 4 HKLRD 856. The case is on trafficking in more than one type of drugs and the court indicates that the combined approach is preferred.
(4) HKSAR v Wong Kin Kau [2010] 4 HKC 443. On trafficking in more than one type of drugs, the court indicates that the combined approach is preferred.
(5) HKSAR v Chan Yuk Leong, CACC 318/2013. The case provides tests for cross-checking for sentences for trafficking in more than one type of drugs, that is, the absurdity test, the conversion test and the ratio test.
In the present case, the defendant trafficked in two types of dangerous drugs, namely ‘Ice’ and ketamine. I agree with counsel that I should adopt the combined approach in sentencing. Of the two types of drugs involved, ‘Ice’ is more potent than ketamine. Applying the tariffs in Tam Yi Chun, an initial starting point of 18½ years is appropriate.
I have considered whether the presence of 14.6 grammes of ketamine would add to the overall criminality of the case. Having cross-checked with the ratio test and the conversion test with the assistance of counsel, I have come to the conclusion that an initial starting point of 18½ years should accurately reflect the criminality of trafficking in the dangerous drugs in the present case.
The defendant had been twice convicted of trafficking in dangerous drugs, that is in 1997 and 2014, and he was sentenced respectively to 4 years and 38 months’ imprisonment. He committed the present offence just 10 months after his discharge from prison for his trafficking case in 2014. I see it as an aggravating feature that the defendant kept trafficking in dangerous drugs, undeterred by the custodial sentences passed on him in the past. In my judgment, the fact that the defendant is a repeated offender for drug trafficking calls for an enhancement of 18 months. With the enhancement, the final starting point is 20 years’ imprisonment.
The defendant is given one-third reduction for his timely guilty plea. That would bring his sentence down to 13 years and 4 months, that is 160 months.
For the reasons given, I sentence the defendant to 13 years and 4 months’ imprisonment.