The police intercepted the accused. The truck in which the accused was sitting was searched. At the driver’s door handle and inside tray, the officers found two plastic bags containing a total of 27.4 grammes of a crystalline solid containing 26.6 grammes of methamphetamine hydrochloride.
In the centre console of the truck, the police found:
(1) four plastic bags containing 54.9 grammes of a crystalline solid containing 53.5 grammes of methamphetamine hydrochloride;
(2) an orange box containing:
(a) 11 plastic bags containing a total of 79.09 grammes of a crystalline solid containing 76.49 grammes of methamphetamine hydrochloride;
(b) 13 plastic bags containing a total of 1.88 grammes of a solid containing 1.58 grammes of cocaine; and
(c) 15 plastic bags containing a total of 80.98 grammes of a solid containing 66.71 grammes of ketamine.
In addition, inside the truck, the police found cash in the sum of $19,990 and a couple of mobile phones.
The total amount of drugs found in the truck was 161.39 grammes of a solid containing 156.59 grammes of methamphetamine hydrochloride, 80.98 grammes of a solid containing 66.71 grammes of ketamine and 1.88 grammes of a solid containing 1.58 grammes of cocaine. I pay tribute to counsel for the prosecution for pointing out an arithmetic error in the calculation of the total methamphetamine hydrochloride in the charge. It is only a minor error but the fact that he pointed it out is reflective of the care taken by prosecuting counsel, and I am grateful.
The police made enquiries with the owner of the truck who told them that the accused had leased the truck for $5,000 per month since mid-July 2020.
Arrest and Caution
The accused was arrested following the search. He was cautioned. He admitted to trafficking in dangerous drugs because he was in debt and wanted to make some quick money. In a subsequent video-recorded interview under caution, the accused also said:
(1) he sourced the dangerous drugs from the San Po Kong area. He picked them up from an unknown person following telephone calls;
(2) he received $90 for each delivery that he made;
(3) he drove to Shek Lei Estate and was arrested there;
(4) he recognised it and accepted the type of drugs seized by the police in his truck;
(5) the $19,000-odd was the proceeds of dangerous drugs. He would pass these proceeds to the caller who had given him the drugs at the outset; and
(6) the accused was not himself an addict but trafficked merely to make money.
The street value of the drugs seized from the truck occupied by the accused was of the order of $149,000.
Procedural History
The accused was charged with trafficking in dangerous drugs and was put up before a magistrate. In the result, he came before Mr Wong Ching-yu sitting as a permanent magistrate in the Eastern Magistrates’ Court on 19 July 2021. On that day, he pleaded guilty and admitted the facts to which reference has just been made. The learned magistrate committed the accused to this court for sentence.
Counsel for the accused has confirmed to me that the accused pleaded guilty and admitted the Summary of Facts. On sentence, he will be convicted on the charge which appears in the charge sheet.
Antecedent and Mitigation
The accused is a 35-year-old man who was born in Hong Kong. He is single, having separated from his wife since 2014. He has no children. The accused has no triad background. He has no previous convictions. He was educated in secondary school with Form 4 level and has been employed in a number of occupations including working as an air-conditioning apprentice and delivery worker and then a lorry driver. He was, at the time of his arrest, the sole breadwinner of his family and had contributed to the maintenance of his family and to the medical expenses of his father.
As has been seen on a number of occasions in recent cases, the recent difficulties in Hong Kong and of the pandemic rendered the accused unemployed and unable to make the kind of contributions to his family that hitherto he was used to making. It was in this context he was tempted to make some quick money by delivering drugs. He asserts, and I accept, that his role in the enterprise was just to deliver the drugs. Without implying any criticism of the Summary of Facts, it is not entirely plain what the role of the accused was and I intend to sentence upon the basis that the most likely role of the accused was that of a mere courier. I am sure that he was not the actual trafficker in the sense of retail selling of the drugs that were found in his truck.
Counsel for the accused points out that the accused is remorseful. As a measure of his remorse, she points to the fact he made admissions and cooperated with the authorities. She reiterated what the accused said in his video-recorded interview that he does not consume drugs.
Counsel for the accused pointed out the distressing family history of the accused. Shortly after the accused was born, his parents separated and he had been raised by his grandmother until age 20. He then lived with his father and has looked after him in recent times. Counsel made the point that he is a filial son devoted to his family. I accept all of that.
However, there have been some recent developments. For the first time since he was a very small child, the mother of the accused has made contact with him. She has visited him while on remand in prison. To his distress, he learned that she had some significant illnesses. Pausing there, I should add that this is a wonderful sign for both the accused, and I would guess, his mother.
I have read the mitigation letter from the accused himself. It would be impossible not to be moved by that letter. In the letter, the accused recognises the seriousness of his conduct and that he made a terrible mistake, not just for himself but for his family. His remorse is palpable.
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. It is easy to see why, particularly in relation to cocaine and methamphetamine hydrochloride. Both drugs have terrible consequences for the individual. They are addictive, and methamphetamine hydrochloride savagely so. Ridding oneself of an addiction to either drug is, to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine and methamphetamine hydrochloride is fraught with instances of disappointment. There are also consequences - sometimes serious ones - for the families who become addicted to these drugs.
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 the 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.
Ketamine
As 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 50 and 300 grammes, the suggested sentencing range is 6 to 9 years’ imprisonment.
Cocaine
The source of guidelines in relation to the trafficking of cocaine starts with the decision of 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 was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
Methamphetamine Hydrochloride
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 the drug.
Cocktail of Drugs
In this case, the accused was trafficking in three separate dangerous drugs. This requires a consideration of the appropriate sentence, taking into account the relative potency of the drugs. Generally speaking, to simply aggregate sentences appropriate for individual drugs would be to produce an unjust result. If the arithmetic mean of the relevant guidelines was to be applied in each of these drugs, it would result in a sentence in excess of 20 years’ imprisonment. The injustice of such an approach is self-evident. The case of HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 suggested the “individual approach” or the “combined approach”. Using the latter approach and taking methamphetamine hydrochloride as the base drug, the starting point will be 12 years and 6 months before enhancement for the other two types of drugs in the charge. Yet that enhancement would, in my view, be manifestly excessive. As a result of that, the Court of Appeal in HKSAR v Chan Yuk Leong CACC 318/2013, propounded a series of tests for cross-checking and they should be considered in order to arrive at the appropriate sentences.
The calculations for the various tests are made on the premise of the arithmetic mean by reference to the appropriate sentencing band in respect of the drugs found in this case, and the calculations are as follows:
(1) Conversion Test
On the premise that all of the drugs are converted to methamphetamine hydrochloride, a starting point of 12 years and 8 months is appropriate.
On the premise that all of the drugs are converted to ketamine, then the starting point would be of the order of 12 years and 10 months.
(2) Ratio Test
On the ratio test, the application of this test suggests a sentence of just over 12 years.
Discount for Pleading 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.
Role of the Accused
It is critical to determine the role of the accused in the crime (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, §49, 58-61, 64-68). In that case, the Court of Appeal recognised that although the analytical starting point or arithmetic starting point for the sentencing guidelines for drugs such as cocaine and methamphetamine hydrochloride start upon the premise of sentencing for a courier or storekeeper, there is a range of culpability even if a trafficker can be characterised, as in this case, as 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 where the sentence was based solely on narcotic content.
The decision in Herry Jane Yusuph (above) confirms that the arithmetic mean of the guidelines was established for a storeman or courier. The decision nonetheless recognises the role of the accused in aspects of trafficking can vary significantly. While it is true that each cog or link in the trafficking arrangements is a serious matter and calls for deterrence, it is just that the sentences can and should be adjusted to reflect the differences in the role of the individual.
Application of Sentencing Principles
Role of the Accused
In the course of discussing the mitigation advanced by counsel, I recognise that the role of the accused is that of a fairly low-level courier. He worked for a fairly low level of reward. As I have already indicated, I am sure that he was not a retail trafficker. The evidence would suggest that he simply followed the instructions of others. In my judgment, that puts him, in terms of seriousness, at or just fractionally below the arithmetic mean for the relevant guidelines. The calculations for the cocktail of drugs are premised on the arithmetic mean for each drug. Had I decided to sentence the accused on the basis of the arithmetic mean in relation to each of the drugs in which he trafficked, I would have selected a level of sentencing with a starting point somewhere between the conversion test and the ratio test. To reflect my assessment of his role in this case and to reflect my intention to sentence fractionally below the arithmetic mean, with the relevant guidelines, I have chosen a starting point of 12 years.
Discount for Pleading Guilty
The accused will be accorded a discount of 33 per cent for pleading guilty.
Disposition
The truth of the matter is that a mature person of hitherto good character, devoted family man and filial son is not the kind of person one normally sees facing a charge of trafficking in dangerous drugs. I accept that the recent pandemic and recent troubles that Hong Kong has experienced have placed a lot of pressure, and sometimes it could be argued that the pressure is undue on persons in the position of the accused, and that provides a compelling explanation. But in truth, of course, it is not an excuse. The accused made a choice. He became a cog, at most certainly a very small cog, in a drug-trafficking machine. Sometimes, when I respond to my surprise to find a person such as the accused before the courts facing serious drug trafficking, it is easy to forget the consequences of the trafficking for those who ultimately consume the drugs, and that can be a very serious matter indeed. My guess is that the accused did not think this through, although a moment’s reflection might have got him to see beyond the quick money he was promised. I accept this is an isolated episode in the story of a person who is otherwise of impeccable character.
There is a cruel arithmetic approach to sentencing in relation to those involved in trafficking, even those with a previous impeccable character. The cruelty can be said to be outweighed by the consequences of being a cog in the distribution of these chemicals. Sentencing someone like this particular accused is a particularly difficult thing.
Would the accused please stand up? In an attempt to balance justice with mercy, the least sentence I can pass upon you is based on a starting point of 12 years, and that is a term of imprisonment of 8 years. And that is the order of the court.