The drugs recovered have an approximate street value of $337,272.
The exact amounts of the narcotic contents of the dangerous drugs recovered were 46.72 grammes of crack cocaine, 36.4 grammes of ‘Ice’, 175.59 grammes of ketamine, 108.92 grammes of fluorodeschloroketamine, 0.74 gramme of nimetazepam and 126.2 grammes of herbal cannabis.
More importantly, some of those drugs were already subdivided ready to be sold on to the end user. The cocaine was found within 30 plastic bags of varying quantity, the ‘Ice’ was found within six plastic bags, the ketamine within 20 plastic bags, the fluorodeschloroketamine in another plastic bag which also contained ketamine, the herbal cannabis in five plastic bags and the nimetazepam in 100 tabs. These can be seen in the photographic bundle.
These drugs were not separated by type. They were found in smaller resealable plastic bags of various size or quantity within larger plastic bags. The overwhelming majority were found contained in a large blue plastic container whilst a small amount of the ketamine and ‘Ice’ were found on a table top, inside a box of tools along with the electronic scales and drug-taking equipment. The herbal cannabis was in the kitchen. The resealable plastic bags were found in a separate box.
Upon arrest and under caution, the defendant said the ‘Ice’ pots and dangerous drugs were hers. In her VRI, the defendant said she was storing drugs for someone called ‘Ah Fai’, whom she had met just a month previously. She explained how this came about in some detail. All of the drugs in the blue box and the herbal cannabis belonged to him. She suggested the ‘Ice’, which was recovered from the toolbox had also come from the same blue box but she had taken it out to consume it without Ah Fai’s permission, as well as the drugs which she was storing for Ah Fai, she said that he had also given her the electronic scales and all of the plastic bags.
Subsequent to her VRI almost a year later, the defendant changed her story. She said her version of events as recounted in her VRI was not true. She said she was trafficking in these drugs herself. She was a dealer. She explained that her original version was an effort to protect her boyfriend with whom she lived. She said she was dealing in drugs because of him. He denies that. He says that he wasn’t living with her at the time and there is certainly no suggestion of a male presence in the flat when the photographs were taken. The court cannot assess the true nature of the relationship because it has no evidence of it other than, I am told, that the boyfriend was the tenant of the flat.
If the defendant is to be believed as to that story, she was not storing drugs for someone else, she was the ultimate supplier and if that is the case, her culpability is greater than the standard guideline tariff: HKSAR v Herry Jane Yusuph, CACC 93/2019 and [2020] HKCA 974.
Ms Chan, in her written submissions on her behalf, submitted yet another version of events. She suggests that the defendant had fallen in love with someone she refers to as ‘Ah Boy’ and was, as a result, under his influence. Despite being an addict since the age of 11, the defendant had no idea he was living off the earnings of drug dealing until months after she had met him and started living with him. It was Ah Boy who brought back the drugs to the flat and it was Ah Boy who distributed them. The defendant only helped package them under the instructions of Ah Boy. She had no knowledge at all of his drug dealing and she did not get paid although she says she had a free supply of drugs.
During the Newton hearing under which she gave evidence on her self-consumption, the defendant stated that the drugs were kept under the bed and in a blue plastic box which her boyfriend accessed but she did not know what was in it. Given the numerous versions of events the court has now heard, it is going to rely upon the facts which are proven and unshaken, that is the recovery of drugs in the flat and available to anyone to access, as well as the drugs and paraphernalia on the table.
Ms Wong is 24 years of age but was 21 at the time of the offence and of good character. She was educated to Form 3 and has latterly been working as a part-time waitress two to three days per week. Her parents divorced when she was very young and she has been living with her father. Her contact with her mother has been nominal.
The medical report provided to the court by Dr Chung Ka-kin states that she has been a patient in the substance abuse clinic since 19 April 2013. That would be since she was just 15 years of age. Her abuse started much earlier than that in order for her to be requiring help at 15. Ms Chan tells the court that she was just 11 when she started experimenting with drugs. It is no surprise to find that as a result she has suffered in the past from drug-induced psychotic disorder and has self-harmed. Clearly, this young lady has been badly let down by those who had care of her in her early years. I accept she was clearly an addict, which is an illness, not a life choice.
That addiction has led to many other issues arising in both her physical and mental health. I note she has had three previous in-patient psychiatric admissions which have been partially successful but not to the extent that it has stopped her abuse. She clearly needs ongoing close medical, social and familial support. She has not received that.
On the other hand, she has been able to function normally in society and to obtain a vocational qualification and hold down a job. She made a conscious decision to feed her habit. She accepted that her boyfriend’s drug dealing was the means by which both lived.
Self-consumption
Ms Chan and Mr Jim previously on her behalf submitted that a part of the 36.4 grammes of ‘Ice’ would have been used by the defendant herself and presumably on instructions submitted that it would have fed her habit for approximately 14 days.
On the other hand, in her VRI, the defendant said she had a habit of 0.5 grammes per day and in evidence she said that her boyfriend had set aside not 14 grammes but 10 grammes for her to consume. But when asked to identify those drugs, she could not do so.
More importantly, under cross-examination by Ms Wong, she said that all of the ‘Ice’ and other drugs in the blue box were available for sale by her boyfriend and he did not tell her what was going to be sold or when. On any version of events, at best, it appears only a part of the 34.6 grammes could have been consumed by the defendant and only if it was not sold on by Ah Boy.
I wholly reject any suggestion that he had divided off 10 grammes specifically for her consumption. I also reject the defendant’s evidence that she had a habit of 1 gramme per day. I find that it was more likely to have been the 0.5 grammes as suggested in her VRI.
Looking at the type and mix of drugs, I find she possessed them with an intention to sell. I find it is more likely that the ‘Ice’ too would have been sold on but she may have consumed some part of it prior to purchasing more drugs for onward sale.
It is not for the court to guess how much of the ‘Ice’ she may have consumed. I am certainly not going to accept a figure from the Bar table. The defendant chose to give evidence on the issue but was not credible. I will not, in any way, penalise her for choosing to have a Newton hearing but there is no evidence which I accept as truthful which indicates that any significant amount of the ‘Ice’ which was in the blue box was for her own consumption. From the material I have before me, I accept that she may have consumed some of the ‘Ice’ but that is quite different from accepting that the 36.4 grammes of ‘Ice’ in her possession were all going to be consumed by her or 14 grammes or 10 grammes. That is a different exercise entirely.
In any event, I understand that she accepts that she was dealing in all of the drugs recovered and might take some of the drugs for her own consumption if they were not sold. The court does not know the turnover of this operation or if the defendant was to receive a new batch of drugs the very next day. The court therefore takes the view that she took receipt of all of these drugs intending to traffic in them if the opportunity arose.
For the avoidance of doubt, I will deal with the submission of Mr Jim who also suggested that the court may consider a greater than one-third discount in line with HKSAR v Kong Tat Lung [2018] 5 HKLRD 635. Ms Chan adopts that submission. The Court of Appeal in that case found that where a defendant submitted that part of the drugs in question were for their own consumption, then there was first an issue of whether that referred to a substantial amount of the drugs. If that were the case, then HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 would apply with the possibility of holding a Newton hearing to ascertain how much was for personal consumption.
The case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 only applies in such cases. It does not apply here, where the suggestion is that only a part of the drugs, and not a substantial part of the drugs, were for self-consumption. If that is the case then that is a matter for the court’s discretion to decide whether any and what degree of discount should be given. I acknowledge those decisions but in the light of the Newton hearing, I am not prepared to make a guess and as a result, I am not going to discount sentence to take this into account.
Sentence
The defendant and the public need to be reminded, as the Court of Appeal has stated on very many occasions, that the sentencing of offenders in respect of trafficking in dangerous drugs is not a strictly mathematical exercise. The courts seek to do justice in cases which are fact-sensitive on the basis of what has been placed before them and having, with considerable experience, taken a view as to those facts where multiple drugs are concerned. There are a number of methodologies which can be employed but the ultimate aim is to do justice to the case at hand. In this case, I am firstly going to deal with each drug individually to set a baseline for sentencing and I will deal with them in the order of toxicity.
The narcotic content of the crack cocaine found within 30 plastic bags was 46.72 grammes. The guideline authority for sentencing in cocaine in its powder form is HKSAR v Lau Tak Ming [1990] HKLR 370. For trafficking in between 10 and 50 grammes of cocaine, the range of sentence is 5 to 8 years. The appropriate starting point after trial for sentencing for trafficking in 46.72 grammes is therefore 7 years 9 months’ imprisonment. This does not take into account that crack cocaine is more toxic than ordinary cocaine.
The narcotic content of the methamphetamine hydrochloride or ‘Ice’ recovered was 36.4 grammes. It was contained within six plastic bags. The guideline case for the sentencing of ‘Ice’ is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. Trafficking in between 10 and 70 grammes of ‘Ice’ calls for a sentence between 7 and 11 years as a starting point after trial. As a consequence, trafficking in 36.4 grammes of ‘Ice’ would attract a starting point of 8 years 8 months’ imprisonment after trial.
The chemical content of the two types of ketamine are slightly different. Fluorodeschloroketamine is believed to be similar to or slightly more potent than ketamine. In this age of man-made drugs, the courts have a duty to keep abreast of the narcotic content of drugs and their devastating effect upon abusers. 108.92 grammes of fluorodeschloroketamine was recovered within four separate bags. The ordinary ketamine recovered was 175.59 grammes, a total therefore of 284.51 grammes of ketamine in its known form falls to be dealt with under HKSAR v Hii Siew Cheng [2008] 3 HKC 323. For between 50 and 300 grammes, the sentencing range is 6 to 9 years. For 284.9 grammes, the starting point after trial would be 8 years and 10 months’ imprisonment.
The nimetazepam was in tablet form. There were 100 tabs. The narcotic content was 0.74 grammes. Counsel submits these drugs are negligible in the greater scheme of things. That may be so but they go to the issue of the role played by the defendant as a general drug dealer. In any event, HKSAR v Wong Kin Kau, CACC 269/2019 suggests that it should be treated under the same guidelines as ketamine and therefore 1 to 10 grammes attracts a sentence of 2 to 4 years. 0.74 grammes would therefore attract a starting point for sentence after trial of 18 months.
The herbal cannabis found within the kitchen was 126.3 grammes. HKSAR v Tuen Shui Ming [1995] 2 HKC 798 deals with the tariff for cannabis resin which is more potent but gave a very broad indication that both cannabis resin and herbal cannabis would attract up to 16 months’ imprisonment for under 2,000 grammes. That judgment was in 1995 and that is not helpful here.
In HKSAR v Ng Tak Hung, HCMA 1074/1999, for 254.83 grammes of herbal cannabis, the sentence was 9 months. In HKSAR v Yau Ka Ming, CACC 144/2013, for 27.4 grammes, it was 3 months. Accordingly, for 126.2 grammes, I consider the starting point for sentence after trial of 6 months to be appropriate in all the circumstances of this case.
Totality
If all of the above was sentenced on an individual basis, the total sentence would be in the order of 27 years after trial. This is not a case where it would be appropriate to simply aggregate the individual sentences for each drug. The resulting sentence would be far in excess of the culpability of the defendant.
Having considered the relevant authorities, the court considers the ratio test to be of the most assistance. The total of all drugs, not including the nimetazepam and the herbal cannabis which can be dealt with separately, is 367.63 grammes. If the individual percentages of that total were therefore as follows: The cocaine is 13 per cent, the ketamine 77 per cent and the ‘Ice’ 10 per cent, then the court can consider what sentence would be given if each drugs were 367.63 grammes and thereafter the percentage of that sentence for the actual amount of the drug in question.
Therefore, 367.63 grammes of cocaine would attract a sentence of 14 years and 6 months. The percentage of cocaine was in fact 13 per cent. 13 per cent of 14 years 6 months is 27 months, that is 2 years and 3 months.
367.63 grammes of ketamine would attract a sentence of 9 years and 8 months, the ketamine was 77 per cent of the total quantity of the drugs recovered, 77 per cent of 9 years 8 months is 89 months, that is 7 years 5 months.
367.63 grammes of ‘Ice’ would attract a sentence of 16 years 1 month. The ‘Ice’ was 10 per cent of the total drugs recovered. 10 per cent of 16 years 1 month is 19 months, that is 1 year and 7 months.
And the result would be cocaine, 2 years 3 months, ketamine, 7 years 5 months, ‘Ice’, 1 year 7 months, a total of 11 years 3 months without taking into consideration the nimetazepam and the herbal cannabis. What should be done about those drugs?
If I deducted those two drugs from my starting sentence at paragraph 11 above, the total would have been reduced by 2 years to 25 years. It represented 7 per cent of that total. 7 per cent of 11 years and 3 months, 135 months, is 9 months. Equally, it represents 37 per cent of the original 2 years whereas the 11 years 3 months is 41 per cent of the original sentence. I will therefore add 9 months to the 11 years 3 months making a starting point of 12 years in all.
Aggravating Factors
Having found a suitable starting point for sentence, it must not be forgotten that this was a veritable cocktail of drugs, allowing a dealer to reach a far greater market and encouraging users to buy more than one type of drug making its abuse more deadly. This is an aggravating factor which must be marked by an enhancement of sentence but I am conscious of totality of sentence and will mark it by an enhancement of just 6 months, making a total of 12 years and 6 months.
A further aggravating factor is the role played by the defendant. I take the view that she was a drug dealer. It was in her interest to find and supply users. She was the one making a profit from the drugs she purchased. Her role was not simply the courier who would make between a few hundred and a few thousand dollars for moving drugs from A to B, nor do I believe she was simply a person who packed or stored drugs under the control of someone else. This aggravating feature requires an enhancement of sentence. In this case, I find a suitable enhancement given the nature and quantity of drugs, whilst taking the principle of totality into account, to be a further 6 months, making 13 years.
In mitigation, the defendant is of previous good character. Even though she was bereft of adult supervision from a very young age and has been an addict for some considerable period of time, this was not something she got into in her mature years. She was hooked at a very young age and her ability to overcome this addiction without familial support was severely diminished. It has led to her peers inevitably being drug users as well.
She is still very young. Ironically, a significant sentence of imprisonment may very well save her life but that does not mean the court should ignore her background for it goes to culpability and moral blameworthiness. In my discretion, taking into account her previous medical issues and her past and current mental health, I intend to mark that by reducing the current sentence by 9 months. That would make a total of 12 years and 3 months.
Discount
The defendant pleaded guilty at the first opportunity and for that she deserves the full one-third discount. On the last occasion, Mr Jim asked that be enhanced for her assistance. He accepted that it was unlikely to be as high as 40 per cent. He submitted that the defendant was arrested in April 2019. In December 2019, she raised the issue of providing assistance. Some time was taken, with correspondence between the prosecution and defence, but she was first seen prior to her NPS and therefore this was not a last-minute application.
The prosecution did not finally make a decision not to proceed against anyone else until March 2021 and they have provided the court with a full explanation for why that was the case and I accept it.
The available evidence and the credibility of the defendant was such that it was unlikely to be successful if they prosecuted her alleged co-defendant. It has therefore been of little value and it must be said that part of the reason for not proceeding is because there would be difficulty relying upon the defendant as a witness of truth given that she admits that she lied in her video-recorded interview. Those lies are to be laid at her door. If she had told the truth at the outset, then perhaps more could have been achieved under this head and she may very well have been able to give evidence against the person she seeks to blame for her position, although she was wholly complicit. As it happens, because of her behaviour, this is not available to her and I cannot see why she should have any credit for that behaviour.
That results in a total sentence of 12 years and 3 months, which after one-third discount, is a sentence of 8 years and 2 months’ imprisonment.