You were stopped and searched and a $50 note was recovered which appeared to have traces of dangerous drugs upon it. A transparent resealable plastic bag was found within the folded banknote.
Upon arrest and caution, you said that the drugs belonged to you. Those drugs form the basis for the 1st count upon the indictment to which you have pleaded not guilty and that count has been ordered to lie upon the court file not to be proceeded with without the leave of this court or the Court of Appeal.
The facts relating to the 2nd count on the indictment to which you have pleaded guilty concerned the vehicle that you had been seen to alight from and for which you had the key. A search of the glove compartment found three large resealable plastic bags in which there were found smaller plastic bags containing dangerous drugs and a further five separate plastic bags containing dangerous drugs. These are the drugs in which you accept that you were trafficking.
Their street value was approximately $103,285.
You are now 36 years of age and married with two daughters who are just 6 and 8 years old. Your wife is currently also dealing with caring for your mother-in-law who has stage 4 cancer. The stress upon them all must be very great without you to give them your support.
Mr Mak tells the court that it has brought home to you the consequences of your actions upon your family. He has explained that although you worked in logistics you were experiencing financial difficulties which is why you committed this offence.
Unfortunately, you have a criminal record going back to 2002 when you were just 16 years of age and you have committed various criminal offences through the intervening years. I see that amongst those, you have been before the courts twice previously for robbery and in 2009 and 2016 for possession of dangerous drugs. But as Mr Tse has confirmed, you have not previously been convicted of trafficking in dangerous drugs. This is your first offence of this type. And you also appear to have been out of trouble since 2016 until this offending.
In total, the drugs you were found with were 129.2 grammes of ‘Ice’, 25.8 grammes of ketamine and 2.27 grammes of cocaine. This was a cocktail of drugs divided up for onward sale.
If I were to sentence you for these drugs individually, the starting point for sentence would be 12 years for the 129.2 grammes of ‘Ice’ under HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, 4 years and 8 months for the 25.8 grammes of ketamine under Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, and 2 years and 8 months for 2.27 grammes of cocaine under R v Lau Tak Ming [1990] 2 HKLR 370. That would be a total sentence of 19 years and 4 months which would not, of course, reflect your true culpability.
The Court of Appeal in HKSAR v Chan Yuk Leong, CACC 318/2013 canvassed three separate and comparative tests which a sentencing court could employ to arrive at a just sentence: the absurdity test, where the court assumes the total amount of the drugs are the drugs recovered which have the highest narcotic content; the conversion test, where the court compares a given sentence to different quantities of drugs by type; and the ratio test, where the relevant percentage of each drug as part of the whole of the drugs recovered is assessed.
Having considered all three tests, the absurdity, conversion and ratio tests, it would be appropriate to adopt a starting point for sentence for all three drugs of 12 years and 1 month. That is the lowest outcome from the three tests, although each test was within just a few months of each other in any event.
There is however the aggravating factor of the latent risk that you have a wider market when selling three different types of drugs and that drug abusers may mix drugs. For that aggravating factor, taking into consideration the starting point for sentence and all that the court has been told, I will enhance your sentence by just 5 months, which makes a total of 12 years and 6 months.
Unfortunately, you did not enter a plea of guilty at the first opportunity but you did so before the start of trial and so I can discount that sentence by 25 per cent. And you will go to prison for 9 years and 4 months.