The defendant, Cheung Tsz-kin, faces one count of trafficking in dangerous drugs. The charge concerns 1 gramme of a solid containing 0.93 grammes of cocaine, 22.26 grammes of a powder containing 18.87 grammes of ketamine and 40.72 grammes of a crystalline solid containing 39.89 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’.
The defendant pleaded guilty to the charge and admitted the Summary of Facts dated 29 September 2021 in the court below. He confirmed his guilty plea and admission of the facts before me this morning. I convicted the defendant as charged on his own plea and admission.
The Facts
The Summary of Facts admitted by the defendant reads:
“1. About 2045 hours on 2 October 2020, police mounted an anti-narcotics operation near Kaiser Estate, Phase 3, 9-11A Hok Yuen Street, Hung Hom, Kowloon, Hong Kong (“the location”). Officers were deployed to lay ambush thereat.
2. At about 2255 hours, PC21467 (PW1) saw the defendant alight from a taxi and walked furtively towards the entrance of the location. PW1 then intercepted the defendant and led the defendant to the junction of Hok Yuen Street and Man Lok Street for a search. The defendant was holding a red coloured paper bag in his right hand at the material time. Upon search, inside the said paper bag, 46 packets of suspected dangerous drugs were found.
3. The 46 packets were later confirmed to be containing a total of 1 gramme of a solid containing 0.93 grammes of cocaine, 22.6 grammes of a powder containing 18.87 grammes of ketamine and 40.72 grammes of a crystalline solid containing 39.89 grammes of methamphetamine hydrochloride.
4. Out of the 46 packets, one packet was relatively bigger, containing 13.5 grammes of methamphetamine in purity while the rest were small packets containing about 1 gramme of a kind of drug per packet.
5. The defendant was arrested and under caution he admitted he was delivering the drugs for someone. The defendant’s cautioned statement was post recorded in the police notebook which he duly signed and confirmed.
6. At the time of arrest, the defendant was in possession of cash $5,322 and three mobile phones. The defendant refused to provide the password to all of the mobile phones.
7. A video-recorded interview was subsequently conducted with the defendant. Under caution, the defendant stated inter alia:
(1) He was delivering the drugs for someone;
(2) someone has asked him to bring the dangerous drugs to the location;
(3) he collected the dangerous drugs at Hung Hom Station and took a taxi from there to the location.
(4) he only knew he had to deliver the drugs to the location, he did not know who to deliver to;
(5) he had acquainted a male, whom he had forgotten the name, when he went out for fun. The said male called him and requested him to deliver dangerous drugs from one place to another;
(6) he has no means of contact of this said male as the male called without caller ID;
(7) he was promised a reward of HK$3,000 for delivering the drugs;
(8) it was the first time for him to deliver dangerous drugs;
(9) he did not open the bag and did not know what was inside;
(10) the three mobile phones seized belonged to him;
(11) the HK$5,322 cash found on him was his own income as a decoration worker.
8. In October 2020, the estimated street value of the cocaine, ketamine and methamphetamine seized was about HK$40,826 in total.
9. The defendant admits and accepts that he was knowingly in possession of the subject dangerous drugs of the charge for the purpose of trafficking.”
Antecedent
The defendant has a clear criminal record. He was born in Hong Kong in 1984 and is now 38 years old. He was educated up to Form 3 level. At the time of the offence, he worked as a decoration worker earning a monthly income of about $15,000.
The defendant is a divorcee and he has an 8-year-old son being taken care of by his ex-wife but supported financially by the defendant.
Mitigation
I am grateful to Ms Lai for her full written mitigation submissions. In short, Ms Lai submits that adopting the combined approach and applying the absurdity test, the conversion test, and the ratio test in HKSAR v Chan Yuk Leong, CACC 318/2013, and the six-step approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the starting point for the total amount of drugs should not exceed 9 years’ imprisonment. Ms Lai emphasises that the role of the defendant was most minimal. He has a clear record. He is now deeply remorseful and he undertakes he will never reoffend. Ms Lai also draws this court’s attention to three mitigation letters written by the defendant, his elder sister and girlfriend.
Consideration
In sentencing the defendant, I have taken into consideration the nature of the dangerous drugs, the facts, the background information of the defendant, all the matters urged on the defendant’s behalf and the mitigation letters placed before me.
Ms Lai submits that the question arises as to whether the defendant’s conduct can be described as a courier or even falling short of that description. On the facts admitted by the defendant, the role of the defendant was clearly that of a courier. He promised to deliver the dangerous drugs to the location in return for a monetary reward.
This case concerns three kinds of dangerous drugs. In sentencing the defendant, I adopt the combined approach. Of the three of dangerous drugs involved, ‘Ice’ is the most potent one. Applying the tariff for trafficking in ‘Ice’ as prescribed in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, an initial starting point of 9 years’ imprisonment is appropriate. In my judgment, whilst the presence of 0.93 grammes of cocaine is insignificant to the sentencing consideration, the presence of 18.87 grammes of ketamine is significant and it calls for an upward adjustment.
The fact that a trafficker was in the position to supply a variety of dangerous drugs to others is a factor which aggravates the seriousness of the case. Multiplicity is an aggravating factor justifying an upward adjustment of sentence (see the authority HKSAR v Islam Azharul [2020] 1 HKLRD 644).
Bearing in mind the absurdity test, the ratio test, and the conversion test, a notional starting point of 9 years and 3 months’ imprisonment, that is 111 months, is appropriate. The defendant is entitled to one-third reduction for his guilty plea and clear record, that would bring his sentence down to 6 years and 2 months, that is 74 months.
I am not prepared to give any additional reduction for the defendant’s clear record. The one-third reduction has already subsumed into it the clear record of the defendant. Of the matters raised by the defendant, the elder sister and the girlfriend, these matters whether taken individually or considered as a whole do not afford a mitigating factor which calls for an additional reduction over and on top of the one-third reduction.
In my judgment, a sentence of 6 years and 2 months’ imprisonment reflects appropriate the overall criminality in all the circumstances of the offence and the defendant.
For the reasons given, for the offence in question, I sentence the defendant to 6 years and 2 months’ imprisonment, that is 74 months.