You admitted that on 2 August 2020, at Flat 6, 2nd Floor, Agatha House, Nos. 19-21 Ning Po Street, Yau Ma Tei, Kowloon, you unlawfully trafficked in the dangerous drugs, 1,150 tablets containing a total of 101.6 grammes of 3,4-methylenedioxymethamphetamine; 336.42 grammes of a solid containing 255.43 grammes of 3,4-methylenedioxymethamphetamine; 475.10 grammes of a solid containing 354.98 grammes of ketamine; 10 grammes of a solid containing 8.77 grammes of methamphetamine hydrochloride and 2.25 grammes of a solid containing 0.27 grammes of cocaine and 291.98 grammes of cannabis in herbal form.
The Summary of Facts which you admitted, I shall summarise as follows:
On 2 August 2020, in the early hours of the morning, a police team were on operation at about 2.42 am in the vicinity of Agatha Building in Yau Ma Tei. At the same time, they were armed with a search warrant to the premises which you have admitted you trafficked in drugs, which I shall refer to hereafter as “the flat”.
At 2.42 am, they saw you and a male enter Agatha Building. Once you entered the building, officers then laid ambush in the public corridor outside the flat. At that time, the wooden door and metal gate of the flat were closed.
At 2.51 am, officers saw the male walking out through the metal gate. That male was intercepted. You were then seen inside the flat and you were intercepted by a police officer at the corridor of the flat, and the door of Room C was open at this time.
A body search was conducted on you and the male and no dangerous drugs were found. On your person, however, were found 11 keys and some of those keys were found to open the metal gate of the flat and the door of Room C. At the time, you had on your person $1,288.90, one iPhone, one Nokia mobile phone and some other items.
The police then executed their search warrant and conducted a search of Room C, which was a small premises of around 80 square feet. Inside the room, they found the drugs, as I have mentioned, in the charge, as well as a large amount of empty resealable plastic bags and an electronic scale.
Upon arrest and caution in Cantonese, you remained silent. In two cautioned video-recorded interviews conducted with the assistance of interpreters, you stated that you had entered Hong Kong from mainland China by boat illegally in 2009. You had stayed in Hong Kong on recognisance and you were living on a subsidy granted by a non-government organisation of $3,200 a month. You were not a user of dangerous drugs. You rented Room C at a monthly rent of $2,800 and lived there by yourself. You were the only person with keys to the room.
You then mentioned thereafter that a person named Nazir had introduced you to traffic in dangerous drugs, and these were how you obtained the drugs in the offence. You said that the drugs in the room were for sale. The electronic scale found in the room was for weighing the cannabis. You mentioned that the money found on your person was leftover from money you borrowed from a friend.
In the Summary of Facts, it is admitted the total retail value of all the drugs found in the flat, save for except the 336.42 grammes of a solid containing MDMA where there was no data for the retail value of those drugs, excluding those drugs, therefore, the total retail value was about HK$400,000.
Defendant, you are from Bangladesh. You were born in Bangladesh and are now aged 60. You are a Form 8 recognisance holder. You have received university education, and you are now suffering from gout and hypertension.
Mr Arthur, your counsel, has mitigated on your behalf. In short, he says that although you have five previous convictions, this is the first time you have ever been convicted of an offence pertaining to drugs. He indicates to this court that you are remorseful that you have committed this offence in Hong Kong and that you have abused the hospitality that Hong Kong has given you, but to reflect your remorse, you pleaded guilty at the earliest opportunity and asked this court to give you the full one-third discount.
Defendant, as regards sentence, you were trafficking in drugs typically known as MDMA or ‘Ecstasy’, ketamine, ‘Ice’, cocaine and herbal cannabis. In sentencing you, defendant, I consider that the conversion approach to convert the ‘Ice’ and cocaine to ketamine is the best test to use in deciding the proper sentence as in this case, the most significant individual drug is that of ketamine, although the most potent drug is that of ‘Ice’ and cocaine. By sentencing you in this manner, defendant, by converting the ‘Ice’ and cocaine to ketamine, it avoids the absurdity in cases where the potent drug is the least amount of drug.
Defendant, MDMA or ‘Ecstasy’, as stated in the Secretary for Justice v Hii Siew Cheng, is considered similar in sentencing to ketamine. Therefore, the same guidelines apply in respect of ketamine and ‘Ecstasy’.
In regard to MDMA or ‘Ecstasy’ and ketamine, the total amount of drug involved there was 712.01 grammes of ketamine. For the amount of ‘Ice’, it was 8.77 grammes. If you were trafficking in ‘Ice’, for that amount of ‘Ice’, in accordance with Tam Yi Chun, that would amount to approximately 6 years’ imprisonment, and converting the ‘Ice’ to ketamine, that would amount to approximately 60 grammes of ketamine.
In respect of the cocaine, which is 0.27 grammes of cocaine, that would attract a sentence of 2 years’ imprisonment. And if converting that to ketamine, that would be approximately 1 gramme of ketamine.
As regards herbal cannabis, that is too small an amount and I shall ignore that cannabis for the purposes of sentence.
As regards, therefore, the total amount of ketamine in this case would amount to 782.01 grammes. Employing the sentencing guidelines in Hii Siew Cheng, that would amount to a total sentence of 12 years and 9 months’ imprisonment had you been convicted after trial.
The aggravating factor in this case, defendant, as your counsel, Mr Arthur, rightfully says, is that you have abused the hospitality of Hong Kong whilst you remain at liberty here in Hong Kong as a torture claimant. You are a Form 8 holder here. There is no strict guideline as to the enhancement of sentence. But in the case of HKSAR v Mahabul Alam Khan, CACC 116/2016, an amount of approximately 238.57 grammes of cocaine, which attracted a 12 years and 6 months’ sentence, the Court of Appeal approved an enhancement of 15 months’ imprisonment. I therefore adopt 15 months as a period for enhancement as an aggravating factor, that is, on top of the 12 years 9 months, which would make a notional starting point of 14 years’ imprisonment.
Your greatest and most important mitigation is your early plea of guilty. And for that, I shall award you the one-third discount.
Giving you the one-third discount, defendant, you should be sentenced to 9 years and 4 months’ imprisonment.