COURT: You have pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and stand convicted upon your own plea today. That count encompasses a number of different drugs. It includes a total of 227.02 grammes of ketamine, 16.04 grammes of cocaine, 22.82 grammes of MDMA and 1.21 grammes of eutylone.
The aggregate street value of those drugs is approximately $188,342.
The facts have been read out to you today by the prosecution and you have agreed them. In essence on 20 April 2020, almost two years ago now, you were intercepted by officers outside Flat D, 1st Floor, 54-56 Fuk Wa Street, Sham Shui Po, Kowloon.
Upon conducting a house search in Room B of Flat D, it was found that there were several bags, which contained varying amounts of drugs and there were also tools and equipment used to deal in drugs in the form of electronic scales and numerous resealable plastic bags which were also found within the room.
Under caution, you admitted doing so for monetary gain. Under interview, you admitted that you helped others to package dangerous drugs. Your role was to apportion and package a larger bag of dangerous drugs into smaller packages, presumably for onwards sale. You did so for monetary remuneration from someone called Ah Kwan because as Mr Mak has said at the time, you had no other income and were in debt. To your credit, you were co-operative on arrest, gave an admission at the scene and subsequently confirmed your admissions in your cautioned interview.
You are now 26 years of age but you were 24 at the time of your arrest. You are not a young man with a clear record. Your earliest conviction can be traced back to 2014 when you were only 18 years of age for theft. Thereafter you were convicted of multiple traffic-related offences, mostly in batches all at one time but most notably you were convicted of theft, failure to produce an identity card and possession of an identity card belonging to another person in 2018.
Whilst I take into account your previous offending history, it will not affect the sentence which must be passed upon you for trafficking in dangerous drugs as it is the first time that you have appeared before the courts for an offence of this type.
There are three groups of drugs within the one count; cocaine, ketamine and MDMA. The mixture of drugs containing eutylone, commonly referred to as red bull or blue playboy and marketed by drug dealers as MDMA, ‘Ecstasy’ or molly, fall within the guidelines for ketamine and so I will add that quantity to the total for ketamine, which makes the total amount 251.05 grammes.
Bearing in mind that my approach should not be strictly numerical, but trying as best I can to find an even-handed approach to the sentencing of this cocktail of drugs, I have considered that if I were to sentence you in accordance with the guideline for each of the drugs to which you have pleaded guilty to trafficking, then under R v Lau Tak Ming [1990] HKLR 370, you would be looking at a starting point after trial for sentencing of 5 years and 6 months for the 16.04 grammes of cocaine.
For the 251.05 grammes of ketamine, including the eutylone and MDMA mixture under Secretary for Justice v Hii Siew Cheng, CACC 126/2007, you would receive a starting point after trial of 8 years and 6 months. That would make a starting point after trial of 14 years in total.
I also considered all that was said in HKSAR v Chan Yuk Leong, CACC 318/2013 and the authorities referred to therein and I have calculated an appropriate sentence for the present case in accordance with the various tests outlined below.
The absurdity test as described under Yip Wai Yin [2004] 3 HKC 367. In that test, I have considered the total amount of narcotic which is 267.09 grammes and have taken account of the sentence that it would have attracted if it had been made up entirely of cocaine, the most potent drug among the cocktail of drugs you possessed. That would have attracted a starting point for sentence after trial of 13 years.
Under the ratio test, as described in Yau Ka Ming, CACC 144/2013, under that test the cocaine was just 6.1 per cent of the total narcotic content and would therefore attract a sentence in the region of only 9 months. Whereas if there had been 267.09 grammes of ketamine, the starting point would be 8 years and 6 months. But the ketamine or drugs bearing the same potency and tariff, namely, the eutylone and the MDMA, accounts for 93.9 per cent of the total narcotic content and therefore the sentence should be 8 years.
The range of sentencing therefore is between 8 years 6 months if all ketamine and 13 years if all cocaine, or if rounded out to present the percentage of the individual drug within the total narcotic content, it would be approximately 8 years and 9 months.
There is also the conversion test under Wong Kin Kau [2010] 4 HKC 443. I compared this, the other tests, with the conversion test which led to a total amount of ketamine in the region of 285.62 grammes if converted which would attract a sentence of 8 years and 10 months. So that is broadly consistent with the appropriate sentence calculated under the ratio test.
Taking into account the principle of totality and the fact that the availability of a cocktail of drugs may make the dealer more commercially attractive, I take the notional point for sentence to be one of 9 years. Giving you the one-third discount for your guilty plea at the earliest opportunity therefore, you will go to prison for a period of 6 years.