Both charges were committed on 21 February 2020 on the 3rd Floor of No 14 Nga Tsin Long Road, Kowloon City, Hong Kong. The 1st charge was committed just on the 3rd floor, outside Room B, and the 2nd charge was committed inside Room B on the 3rd floor.
In respect of the 1st charge, defendant, you admitted that you unlawfully trafficked in the dangerous drugs of, namely, 16.56 grammes of a crystalline solid containing 16.17 grammes of methamphetamine hydrochloride, 7.29 grammes of a solid Containing 6.45 grammes of cocaine and 26.8 grammes of a solid containing 22 grammes of ketamine.
In respect of the 2nd charge, defendant, you admitted that you unlawfully trafficked in 192.10 grammes of a solid containing 148.41 grammes of ketamine, 231.96 grammes of a crystalline solid containing 217.73 grammes of methamphetamine hydrochloride, 81.88 grammes of a solid containing 71.39 grammes of cocaine, 60.69 grammes of a solid containing 30.84 grammes of ketamine and 18.32 grammes of fluorodeschloroketamine, 108 grammes of a solid containing 79.1 grammes of methamphetamine hydrochloride, 15 grammes of ketamine and 3.36 grammes of fluorodeschloroketamine, 2.61 grammes of a solid containing 1.10 grammes of kea and 0.58 grammes of methamphetamine, 0.38 grammes of a solid containing 0.18 grammes of 3,4-methylenedioxyamphetamine and traces of ketamine.
As regards the Summary of Facts of this case, to which you admitted, defendant, they can be summarised as follows.
On 21 February 2020, police officers conducted an anti-narcotics operation in the vicinity of and in the building of No 14 Nga Tsin Long Road, Kowloon City, Kowloon. At that time they were also armed with a search warrant for the premises concerned.
At about 2159 hours, you were seen leaving the building on the Ground Floor via the main gate. When the police officers walked to the entrance of the building, you appeared nervous and retreated slightly. The officers intercepted you and disclosed their police identity. Enquiries revealed that you resided at Room B on the 3rd Floor in the building. I shall refer to Room B as “the flat”.
The police officers led you to the area just outside your flat for a body search. From your trousers pockets, the drugs in Charge 1 were found. Under arrest and caution, you confessed you were taking the drugs to Lung Kong Road to give to a person.
The police officers used a key seized from your person to enter the flat and executed the search warrant. Inside the flat, the drugs in Charge 2 were found.
On your person, cash of $4,590 was found as well as two mobile phones containing SIM cards.
Upon further arrest and caution, you said you helped the person divide the big ones into smaller ones regarding those dangerous drugs.
In a video-recorded interview, you admitted that you rented that flat since April 2019 at a monthly rent of $5,000.
The street value of the dangerous drugs seized in this case in February 2020 were as follows: $94,342 for cocaine powder and $135,984 for crack cocaine; 132,958 for methamphetamine hydrochloride; 137,469 for ketamine; 38,113 for mixture of ketamine and fluorodeschloroketamine. There is no available data on average retail price of dangerous drugs in the form of mixtures of ketamine and fluorodeschloroketamine and methamphetamine, and also of MDMA, measured in gram unit.
The total amount of drugs therefore, if I calculated the amount first the cocaine powder, that is not included in the crack cocaine, it would be $402,882. And if it’s calculated on the crack cocaine, not cocaine powder, the amount would be $444,524.
Defendant, your counsel, Mr Michael L Y Leung, has given full written mitigation on your behalf and has also elaborated upon it orally in court.
Defendant, you are now 26 years of age and single. You were born in Hong Kong and are a Form 5 graduate. Prior to your own arrest, you were working as a property agent earning $40,000 a month. Your parents were divorced when you were 2 years old and you are a single child. You seldom contacted your mother, whilst your father had remarried twice and is now residing in Macau with his current wife and children.
I received a very heartfelt letter from your godmother, Madam Chau Chi-hang, who is present in court setting out the environment to which you were raised. Her last sentence or one of the last sentences says this: you were left to fend for yourself which led you to the wrong path you have taken. I quote, she said, “A child which is pure as water, but for the harshness from his father making his childhood miserable, Chi-hang made the mistake and he is very regretful for his wrongdoing.” She says she feels very sorry for you and she hopes that I will give you a lenient sentence so you can come out sooner and take this opportunity to turn over a new page of life.
I have also received a letter from you, defendant, setting out the predicament and circumstances as to why you have committed this offence and how now you are very remorseful. You have said at paragraph 3 of your letter, “Under the guidance provided by the officers in the Correctional Services Department”, you are “now determined to turn a new leaf by keeping both your feet on the ground and earning a living for your family”. From what you have stated in your letter, given the role that the Correctional Services have given you whilst in custody, it seems to me that you are already changing and becoming a more responsible young man. I also note that you have understood the care that your godmother has given you and you wish to express your gratitude to her. You have said that you are very regretful for your wrongdoing and I note that is so, particularly through your early plea of guilty.
Defendant, for Charges 1 and 2, there were a number of different kinds of drugs involved. They involved the drugs of ‘Ice’, cocaine and ketamine and MDMA, and for those types of drugs the Court of Appeal in the following cases have laid down guidelines. For ‘Ice’, the case is that of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For cocaine, it is that of R v Lau Tak Ming [1990] 2 HKLR 370. For ketamine, it is that of Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1, and that also -- I say that Hii Siew Cheng lays down that MDMA should also be in the same type of drug as ketamine. The guideline starting points for these types of drugs were set down by the Court of Appeal on conviction after trial and I shall follow those guidelines.
Although there were two charges in this case, defendant, I shall take a global approach in sentencing you and consider the principle of totality, but I shall also sentence you for each charge individually. I shall sentence you first individually for the two charges, take a global approach and give you a sentence in total. For the purposes of sentence, I have found it easier to set it out in a table format which I have given to prosecution counsel, Ms Sheroy Tam, and Mr Leung, your defence counsel.
In Charge 1, there were three types of drugs, which is ‘Ice’, cocaine and ketamine. In sentencing you for that charge, and for Charge 2, I shall take the combined approach and convert all the drugs into ‘Ice’. This is the following sentence, defendant.
For Charge 1, there was a total of 16.17 grammes of ‘Ice’. If you were sentenced after trial, that would attract a sentence of 7 years and 3 months’ imprisonment. There was an amount of 6.45 grammes of cocaine which would attract a sentence of 3 years and 9 months. If that amount were to be converted into ‘Ice’, that would be 2 grammes of ‘Ice’. There was 22 grammes of ketamine, which would have attracted a sentence of 4 years, 6 months’ imprisonment, and that would convert to an amount of 4 grammes of ‘Ice’. The total ‘Ice’ in Charge 1 would therefore be 16.17 plus 2 plus 4 grammes, which makes it a total of 22.17 grammes of ‘Ice’. If you were to be sentenced for that amount of ‘Ice’ after trial, that would attract a sentence of 7 years and 9 months’ imprisonment.
Defendant, as regards a discount of sentence, your counsel Mr Leung has asked this court to give you a further discount than one-third as you have at least attempted to assist the authorities. I am informed that in August 2021 you had requested the police to take a non-prejudicial statement from you, an NPS, but due to the pandemic caused by COVID they did not get to you and take an NPS until this year, three months ago, April 2022.
I am informed by Mr Leung, however, despite your attempted assistance and full and frank disclosure to the police, but there was no fruitful result. Ms Tam for the prosecution has confirmed that there has been no positive assistance and fruitful result. Mr Leung asked me nevertheless to take into account that the policy is to encourage people to take such steps and that you should be given more than a one-third discount.
In this case it is apparent that whatever disclosure you made did not assist the authority. Perhaps the usefulness of your information that you provided did come too late. I note that you were arrested in February 2020, yet only requested to give assistance in August 2021, which is almost one and a half years later.
I note that it is of no fault of yours that the NPS was eventually taken almost nine months later. However, in the circumstances such as these, defendant, I am unable to give you any discount other than the full one-third discount, which is your strongest mitigating factor.
In the circumstances, the sentence for Charge 1, which the starting point was 7 years, 9 months, it shall be reduced - and giving you the full one-third discount - to one of 5 years and 2 months’ imprisonment.
In Charge 2, there was an amount of ketamine of 148.41 grammes, ‘Ice’ of 217.73 grammes, cocaine of 71.39 grammes, ketamine 30.87(30.84?) grammes, fluorodeschloroketamine 18.32 grammes, ‘Ice’ 79.1 grammes, ketamine 15 grammes, fluorodeschloroketamine 3.36 grammes, ketamine 1.1 gramme, methamphetamine 0.58 grammes, MDMA 0.18 grammes and traces of ketamine.
As I noted earlier, I shall be converting all the drugs there into ‘Ice’. In calculating the total amount of ketamine in this Charge 2, that would amount to 217.24 grammes of ketamine. Had you been convicted after trial for that amount of ketamine, the appropriate starting point would be one of 8 years’ imprisonment. Converting that amount of ketamine to ‘Ice’, it would be approximately 26 grammes of ‘Ice’. The total amount of cocaine in Charge 2 was 71.39 grammes. That would attract a term of 8 years and 6 months as a starting point after trial, which would convert to approximately 34 grammes of ‘Ice’. The total ‘Ice’ in Charge 2 was 297.41 grammes. And adding up the total then would be 297.41 grammes plus 34 plus 26 grammes of the converted amounts, which amounts to 357.41 grammes total amount of ‘Ice’. Had you been convicted after trial of that amount of ‘Ice’, that amount would warrant a term of 15 years and 9 months’ imprisonment. Giving you the full one-third discount, you would be sentenced to 10 years and 6 months’ imprisonment on Charge 2.
Defendant, I will now take a global approach of all the drugs and then the principle of totality. A global approach: Charge 1, there was in total 22.17 grammes of ‘Ice’; in Charge 2, 357.41 grammes of ‘Ice’. That would be a total for Charge 1 and 2 of ‘Ice’ of 379.58 grammes. Had you been sentenced after trial for that amount of ‘Ice’, that amount would have attracted a term of 16 years and 3 months’ imprisonment. Giving you the full one-third discount, that would amount to a term of 10 years and 10 months’ imprisonment. That is the term to which you shall be so sentenced.
To reflect the total term, I shall order 4 months of Charge 1 to run consecutive to Charge 2, making the total term 10 years, 10 months’ imprisonment.