COURT: The defendant faces one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The Summary of Facts
On 21 January 2021, during an anti-narcotics operation, Customs officers intercepted the defendant outside Block C of Garden Rivera, Sha Tin. The defendant attempted to flee but was soon subdued.
Upon search, five keys were seized from the defendant’s right front trousers pocket. The defendant claimed the keys were used to access Room 5, 6th Floor, Block A of Rivera Garden (called “the premises” from now on).
Customs officers gained entry into the premises with the keys and found the following inside the second drawer of a cabinet:
(a) 27 plastic bags containing a total of 18.51 grammes of a solid containing traces of ketamine;
(b) 25 plastic bags containing a total of 17.22 grammes of a solid containing traces of ketamine;
(c) 20 plastic bags containing a total of 13.73 grammes of a solid containing traces of ketamine.
The defendant was arrested. Under verbal caution, the defendant said it was ketamine. It belonged to him for self-consumption. He picked them up from somewhere downstairs.
Further search was conducted and cash of $61,300 was found inside the second drawer of another cabinet. On the sofa, the following were found:
(a) a plastic bag containing 24 grammes of a solid containing 17.4 grammes of cocaine;
(b) 30 plastic bags containing a total of 4.63 grammes of a solid containing 4.06 grammes of cocaine;
(c) 86 plastic bags containing a total of 13.3 grammes of a solid containing 9.92 grammes of cocaine.
The defendant was further cautioned. Under verbal caution, the defendant said it was coke. It was for self-consumption. He picked them up from somewhere downstairs.
Further search was conducted and inside a suitcase next to the bed, the following were found:
(a) 21 plastic bags containing a total of 14.6 grammes of a solid containing 11.3 grammes of ketamine;
(b) 32 plastic bags containing a total of 21.6 grammes of a solid containing 17 grammes of ketamine;
(c) 20 plastic bags containing a total of 14 grammes of a solid containing 12.1 grammes of ketamine;
(d) 19 plastic bags containing a total of 13.2 grammes of a solid containing 11.4 grammes of ketamine;
(e) an electronic scale which contained traces of ketamine and cocaine;
(f) some re-sealable plastic bags; and
(g) inside a box there were 34 foil packets containing a total of 340 tablets containing clozapine (it is a Part I poison).
So under verbal caution the defendant said those were ketamine, belonged to him for self-consumption and he picked them up downstairs.
The defendant refused to answer any questions during subsequent video-recorded interview.
Two mobile phones were seized from the defendant at the time of arrest. Upon investigation, WhatsApp messages were found on one of the phones which contained a pre-paid SIM card. Drugs related messages were found in conversation with “B”, including pictures and videos of drugs. One of the pictures included an electronic scale which was similar to the one seized inside the premises. There were also voice messages. In the voice message, “B” called this defendant’s name and also gave instructions to the defendant in relation to the drugs and mentioned about recording the numbers in a table.
And documents showing that the defendant was a tenant of the premises were also found.
A total of 41.93 grammes of a solid containing 31.38 grammes of cocaine, 63.4 grammes of a solid containing 51.8 grammes of ketamine and 49.46 grammes of a solid containing traces of ketamine were found inside the premises. The defendant admitted that he unlawfully trafficked in all the dangerous drugs seized in the case.
Background and Mitigation
According to the antecedents statement, the defendant is a 30 years old single man. He claimed to have received upper secondary education and was a construction worker. He is not a person of a clear record, he had four previous convictions, three of those convictions were of robbery and one of possession of offensive weapon.
Ms Anna Ho, counsel for the defendant, informed the Court that the contents of the antecedents statement were agreed by the defendant. She added that the defendant’s father had passed away in 2016 and his mother had an operation for breast cancer in the same year. His mother still continues with out-patient treatment. The defendant had an older brother who is married. The defendant himself was unemployed before his arrest. Between 2019 and 2020, the defendant work as a road repair worker and a piping worker earning about $40,000 per month. Ms Ho submitted that the defendant got involved in the present case as he was laid off by one company and he resigned from the other. Although the defendant claimed under arrest that the drugs were for his own consumption, Ms Ho confirmed that the defendant does not claim that part of the drug was for his own consumption.
The defendant himself wrote a mitigation letter to the Court. He indicated that he is remorseful for what he had done. He regrets causing a serious rift between him and his family. He plans to study different courses in prison to equip him to get jobs after he is released. He asked to be given a chance so that he could mend his relationship with the family and be of use to the society.
Ms Ho of course urged that the defendant had pleaded guilty at the earliest available opportunity and asked for a discount.
Sentence
Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to a fine of $5 million and to imprisonment for life. The defendant is convicted of trafficking two different kinds of dangerous drugs. So for the trafficking of more than one kind of drugs, there will be two sentencing approach to the sentencing judge, individual approach or a combined approach. So I will first look at the appropriate starting point of each drug before deciding which approach is better. Bearing in mind that no matter which approach is adopted, it is the overall sentence that is important.
So the starting point for cocaine. Now, according to the guidelines in Lau Tak Ming, which is applicable to the trafficking of cocaine, the amount of cocaine involved here is 31.38 grammes which falls into the band of 10 to 50 grammes of cocaine with a starting point after trial of between 5 to 8 years’ imprisonment.
The starting point for ketamine. In the case of Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine. The total ketamine involved in this case amounts to 51.8 grammes. Now, for the purpose of sentencing I will disregard the traces of ketamine found in the 49.46 grammes of a solid. So 51.8 grammes fit into the band of 50 to 300 grammes with a starting point between 6 to 9 years.
I am of the view that a combined approach using cocaine as the base is appropriate in this case. I am grateful to both counsel for preparing the three tests for my consideration, that is the absurdity test, conversion test and ratio test. For the conversion test, the starting point would be 8 years and 2 months. For the ratio test, the starting point would be 7 years and 4 months. There is a difference of 10 months between these two tests. Bearing in mind that two kinds of drugs are involved, I am of the view that the conversion test is more appropriate. I am however prepared to adopt a starting point of 8 years instead of 8 years and 2 months as a recognition of the difference in the two tests. So the appropriate starting point in this case is 8 years.
The defendant pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. I do not see any other grounds to further reduce the sentence. So for the offence of trafficking in dangerous drugs, the defendant is sentenced to 5 years and 4 months’ imprisonment.
