The defendant has pleaded guilty to two charges of trafficking in dangerous drugs, Charge 1 and 2, in the Magistrates’ Court and committed to this court for sentence. He confirms his plea and his agreement to the Summary of Facts before me today.
The incidents which gave rise to the two charges took place on 22 July 2020.
As regards Charge 1, its subject matters are 108 grammes of a crystalline solid containing 108 grammes of methamphetamine hydrochloride and 32.81 grammes of a powder containing 28.31 grammes of ketamine.
As regards Charge 2, its subject matters are 245.44 grammes of a crystalline solid containing 245.44 grammes of methamphetamine hydrochloride; 33.9 grammes of a powder containing 25.1 grammes of methamphetamine hydrochloride; 72.9 grammes of a powder containing 62.1 grammes of ketamine; 78.4 grammes of a solid containing 9.44 grammes of methamphetamine and 57.5 grammes of ketamine; 28 grammes of a solid containing 0.97 grammes of cocaine and 283 grammes of cannabis in herbal form.
Facts
This was a run-of-the-mill type of ‘stop-and-search’ case.
On the day of the incident, at about 2146 hours, the defendant was seen leaving a building on Shung Ling Street, San Po Kong. He was intercepted and searched by the police and a transparent plastic bag containing the dangerous drugs, the subject matter of Charge 1, was found in the left inner pocket of his jacket. Upon arrest, the defendant said under caution that he was asked by a person named ‘Yee Ng’ to take and place the bag of ‘K Chai’ and ‘Ice’ at the bush outside the entrance of ‘Megabox’.
The defendant was then taken to his residence at ‘Room 3’ on the 1st floor of the building, where a search warrant was executed. Entrance was gained by the keys seized from him. The subject matters of Charge 2 were then found on the floor of that room.
Under further caution, the defendant said that he was asked by ‘Yee Ng’ to take the dangerous drug there for packing and he was promised $5,000 a week as his wage.
In a subsequent video-recorded interview, the defendant made further admissions. Among other things, he said he came to know ‘Yee Ng’ through the introduction of a stranger who asked him if he was interested in earning $5,000 a week for packing dangerous drugs. Subsequently, on the instruction of ‘Yee Ng’, he obtained the keys of the room from the bush outside Megabox in Kowloon Bay.
Before the commencement of his work, the defendant said he obtained a large bag of dangerous drugs near Megabox. He then brought the bag of dangerous drugs to the room and divided and packed them into smaller bags, using scissors, spoons, electronic scales and sealer. He showed the police some Telegram exchanges which he said he had with ‘Yee Ng’.
The estimated street value of the various dangerous drugs seized were as follows: $254,869.72 for methamphetamine; $49,260.86 for ketamine; $98,700 for cocaine; $67,071 for herbal cannabis; all in Hong Kong dollars.
Antecedent
The defendant was aged 16 at the time of the offence and is now aged almost 18. He was born in Hong Kong and studied up to Form 3. His parents have divorced. He lives with his father and one of his two elder sisters. He was unemployed at the time of the offence. He has no previous criminal record.
Sentence
The approach to the sentence of the offence of trafficking is laid down by the Court of Appeal in its judgment of HKSAR v Herry Jane Yusuph, which says that the arithmetical starting point, arrived at by applying the relevant sentencing tariffs to the quantity of the narcotic concerned, is only suitable for an offender whose role was that of a mere courier or a storekeeper.
Although that case was decided after the present offences, as the Court of Appeal says, the sentencing principles explained in that case are not new, as the defendant’s role was always part of the circumstances for the sentencing judge to consider and the court retains an important element of discretion.
In the present case, based on the defendant’s admissions, he was not a mere courier or storekeeper, but was much more involved in that he was also responsible for dividing, weighing and packing dangerous drug into smaller quantities for the purpose of later delivery.
For sentencing purpose, I treat methamphetamine the same as methamphetamine hydrochloride, both of which would be referred to as ‘Ice’ so that there are four types of dangerous drugs involved in the present case. Both the prosecution and the defence have helpfully calculated the respective arithmetical starting points of the two charges for my reference, using the ‘absurdity test’, ‘conversion test’ and ‘ratio test’ as explained in HKSAR v Chan Yuk Leong.
Charge 1
This charge concerns 108 grammes of ‘Ice’ and 28.31 grammes of ketamine. Based on the tariffs provided by HKSAR v Tam Yi Chun for ‘Ice’ and Secretary for Justice v Hii Siew Cheng for ketamine, the arithmetical starting point for this charge is as follows: absurdity test, 145 months, assuming all were ‘Ice’; ratio test, 132 months; conversion test, 140 months based on ‘Ice’ as the most potent drug.
Having applied the three cross-check tests, looking at the matter in the round, I consider that a notional starting point of 140 months would be appropriate in the present case.
However, apart from the quantities of the drugs concerned, there are also other relevant considerations.
First, it is now established that the ability of the trafficker to cater to a wider market by trafficking in a multiplicity of drugs should be considered. See, for example, the case authorities referred to in HKSAR v Yim Hung Lui Ricky at paragraph 11 of that judgment.
Secondly, as noted in Chan Yuk Leong’s case, there was the possible combined use of ‘Ice’ and ketamine, which could pose greater harm to the abuser than either taken alone.
Thirdly, as I have said, the defendant was no mere courier or storekeeper but was much more involved in trafficking.
In view of the aforesaid aggravating factors, I adopt 150 months as the starting point of this charge.
I trust that Mr Chan has said all that can be said for the defendant in mitigation. I also have regard to what was said in the mitigation letters written by the defendant, his father and two elder sisters. However, apart from the timely plea, there is no reason to reduce the defendant’s sentence. The defendant’s cooperation with the police is subsumed by the one-third discount (Secretary for Justice v Lee Chun Ho, Jeef).
He is young but not extremely so and therefore his age is not a factor which may reduce the sentence of this serious trafficking offence like the present case (R v Lau Tak Ming & Anor).
After deducting the customary one-third discount, the defendant is sentenced to 100 months for this charge.
Charge 2
For sentencing purpose, this charge concerned 279.98 grammes of ‘Ice’, 119.6 grammes of ketamine, 0.97 grammes of cocaine and 283 grammes of herbal cannabis.
Again, for sentencing purpose, the herbal cannabis could be disregarded as it would not have any significant impact on the resultant sentence. Based on the tariffs provided by HKSAR v Tam Yi Chun for ‘Ice’, Secretary for Justice v Hii Siew Cheng for ketamine and Attorney General v Pedro Nel Rojas applying R v Lau Tak Ming & Anor for cocaine, the arithmetical starting point for this charge is as follows: absurdity test, 200 months, assuming all were ‘Ice’; ratio test, 176 months; conversion test, 178 months, based on ‘Ice’ as the most potent drug.
Having applied the three cross-check tests, looking at the matter in the round, I consider that a notional starting point of 178 months would be appropriate in the present case.
Similar to Charge 1, in view of the presence of aggravating factors, I adopt 188 months as the starting point of this charge. After deducting the customary one-third discount, the defendant is sentenced to 125 months for this charge.
Totality
Then, there is the question of totality.
I have regard to the total amount of various dangerous drugs in this case, namely: 387.98 grammes of ‘Ice’, 147.91 grammes of ketamine, 0.97 grammes of cocaine and 283 grammes of herbal cannabis.
Similar to what I have done for Charge 1 and Charge 2, the arithmetical starting point for trafficking in all these drugs would be: absurdity test, 227 months, assuming all were ‘Ice’; ratio test, 202 months; conversion test, 200 months, based on ‘Ice’ as the most potent drug.
Having applied the three cross-check tests, looking at the matter in the round, I consider that an overall notional starting point of 200 months would be appropriate in the present case. Similarly, in view of the presence of aggravating factor, I add 10 months on the top of that so that before any deduction for mitigation, the overall starting point is 210 months. And after deducting the one-third discount, the defendant’s overall sentence would be 140 months’ imprisonment.
Having looked at the matter in the round, I am satisfied that the appropriate total sentence for the defendant for the two charges is 140 months.
To achieve this, I sentence the defendant as follows: Charge 1, 100 months’ imprisonment; Charge 2, 125 months’ imprisonment.
Furthermore, 15 months from the sentence of Charge 1 are to run consecutively to the sentence of Charge 2, thus making a total sentence of 125 plus 15 equal 140 months.