COURT: The defendant has pleaded guilty at the committal stage for two charges of trafficking in dangerous drugs. The 1st charge read as follow, that the defendant on 28 May 2021, in Tsim Sha Tsui, trafficked in dangerous drugs, namely, 131.34 grammes of cannabis, 55.7 grammes of a mixture containing 24.8 grammes of heroin hydrochloride, 246 grammes of a solid containing 62.2 grammes of ketamine and 1.01 kilogrammes of a solid containing 118 grammes of ketamine and 21.2 grammes of heroin and 100 tablets containing 8.64 grammes of 3,4-methylenedioxymethamphetamine, MDMA. In the 2nd charge you, on the same day, in Tsim Sha Tsui again, unlawfully trafficked in dangerous drugs, namely, 12.8 grammes of a solid containing 10.7 grammes of ketamine, 39.4 grammes of a solid containing 4.22 grammes of heroin and 39.3 grammes of a solid containing 7.85 grammes of cocaine and 1.22 grammes of ketamine.
One can see from those charges, not only there is a mixture of drugs but in fact in both charges, some of the drugs had already been mixed. In the 1st charge, there is a mixture of ketamine and heroin. In the 2nd charge, there is a mixture of cocaine and ketamine.
Facts of the case, put shortly, is this. You were seen alighting from a taxi in Tsim Sha Tsui outside No. 18 Carnarvon Road with a plastic bag in your hand. You entered the building at No. 37 and police followed you. You were intercepted at the staircase and inside the brown bag that you were carrying, drugs mentioned in the 1st charge was found. You were then taken back to the taxi which you alighted from and inside the taxi on the floor of the right rear passenger seat is another bag and inside the bag there were drugs mentioned in the 2nd count.
Upon arrest and at the scene, you were cautioned and you admitted that you were delivering those drugs. Subsequently, at the police station you were interviewed and you made admission for those two counts that you have pleaded guilty to, namely that at the material time you were delivering the drugs.
The market value, retail value, of the drugs is 269,000-odd and that excludes calculation for drugs in mixture form as there was no market retail value for the mixture.
But it has been said by the court on many occasions that a mixture of drugs is very dangerous and that is an aggravating factor in sentencing.
You are 20 years of age with a clear record. You attained up to Secondary 3 education and then you studied in Vocational Training Council for about a year. From the antecedent statement that I was told which was admitted by your counsel on behalf of you, you have been abusing ketamine some two years ago and you also had a Triad background of Wo Shing Wo.
It is advanced on your behalf that you commit the present offence due to bad influence from undesirable peer group and you wanted to earn quick money so that your parents could have less financial burden and could retire early. I must say at once, I reject that. From the letter that was given to the court, in particular the one by your parents, your father is only 60-odd years of age, your mother is younger. Both of them are in gainful employment. You are the only one in the family who is unemployed. I do not see that you have a very heavy family burden. In fact, I suspect you want to earn quick money in order to support your own vice habit, as you have admitted that you have been abusing ketamine two years ago. Other than that, there was no other explanation given as to why you committed the present offence.
I have also read the letters from you, your parents, your friend and also people from the village that you live. All in all, they ask for a chance to be given to you as you are still young. I accept that you were young but you were not so young that you should not bear the responsibility for what you have committed, for the offence that you have committed.
In Herry Jane Yusuph [2021] 1 HKLRD 290, the Court of Appeal had said:
“Personal circumstances were of far less importance than denunciation, deterrence and punishment in cases of trafficking in dangerous drugs.”
For these reasons, consistence is very important. Earlier the Court of Appeal in Abdallah [2009] 2 HKLRD 437 made comments of the same sentiment:
“Given the grievousness of the offence, meaningful mitigation apart from a plea of guilty was rarely available.”
Your counsel, Mr Chui, had asked the court to give you some discount for your expression of genuinely wanting to assist the police and it just turned out that they are of no value. I am afraid I am not going to give you any discount for that not only because the information which you have provided is of no value but also I do not take the view that you genuinely want to assist the police.
I have had the opportunity to look at your statement. I am of the view that if you are genuine and want to assist the police, you should have told the police about the present case. For example, as to where and who gave you drugs. You did not give information to the police concerning those matters. Rather, you talked about another person.
This is a serious case not only because of the quantity but a variety of drugs and secondly a mixture of drugs. For the 1st charge, the weight of heroin is 46 grammes, ketamine 180.2 grammes, MDMA 8.64 grammes, and cannabis 131.34 grammes. The respective starting point for those drugs, for heroin, it will about 7½ years; ketamine 7½ years; MDMA 3½ years and cannabis 2 months. Taking a combined approach, as said by the Court of Appeal in the case HKSAR v Islam S M Majharul [2020] 3 HKLRD 146, for the purpose of calculation, I will ignore cannabis. The total quantity of the narcotics in the 1st count is 234.84 grammes. I used heroin as the base drug. Assuming for that quantity, the total quantity of 234.84 grammes of heroin, the starting point would be 12½ years.
I also took into consideration the conversion test mentioned by the Court of Appeal in the case of Chan Yuk Leong, Criminal Appeal No. 318 of 2013. For the ketamine, 7½ years which will be equivalent to 43 grammes of heroin and for MDMA, starting point is 3½ years, it will be equivalent to 7.75 grammes of heroin. I add this to the 46 grammes of heroin, it gives me a figure, 96.75 grammes of heroin. And for that, the starting point will be 9 years and 3 months.
I also conducted a ratio test. The heroin in question in Charge 1 represent about 20 per cent of the total drugs, ketamine 77 per cent, and MDMA 3 per cent. I then calculate using 12.5 years for heroin times that by 20 per cent gives me 2.5 years. For ketamine, 8 years times 77 per cent gives me 6.2 years. And for MDMA, the guideline is the same as ketamine, therefore 8 years times 3 per cent gives me 0.24 years. Adding it up and rounding it up, it will give me about 9 years.
From these three tests, that is the total quantity together assuming all are heroin, conversion and the ratio tests, I have to consider the 7½ years for heroin should be adjusted upwards as a starting point.
I have taken into consideration of the aggravating factors namely, there is in this case a mixture of drugs, heroin and ketamine, and also a variety of drugs means that there is a bigger market. As well as in this case there is also cannabis which I have not taken into account in my calculations. These are aggravating factors as mentioned by the Court of Appeal in the case of Chan Yuk Leong.
At the end, on the 1st charge, I enhance the 7½ years by 2½ years and take a starting point of 10 years for the 1st charge. The only discount that I can give you for the 1st charge is your plea of guilty at the earliest available opportunity. Therefore, for the 1st count, the sentence will be one of 6 years and 8 months.
For the 2nd charge, the heroin is 4.22 grammes, ketamine 11.92 grammes, and cocaine 7.85 grammes. For the cocaine in question, the starting point will be 4 years, heroin 3 years and ketamine 4 years. The total weight of narcotics is 23.99 grammes in the 2nd charge. Assuming all the drugs is cocaine, which I will take as a base drug for this charge, the sentence will be 6 years as a starting point.
Again, I use the conversion and the ratio tests. For 3 years for the heroin, it will be equivalent to about 4.22 grammes of cocaine as for cocaine and heroin the guideline is the same. For ketamine, 3 years, it will be equivalent to about 8 grammes of cocaine. I add them up and round it up, it is about 20 grammes of cocaine and for 20 grammes of cocaine, starting point will be 6 years.
Insofar as the ratio test is concerned, heroin accounts for 18 per cent of the drugs, cocaine 33 per cent, and ketamine, 49 per cent. So for the heroin, 6 years times 18 per cent will be about 1.1 years. For cocaine, 6 years times 33 per cent will be about 2 years. Ketamine, 4½ years times 49 per cent gives me 2.25 years. Again, I add them up together, that gives me a starting point of 5.35 years.
Again, taking into consideration of the aggravating factor of a mixture of drugs, a variety of drugs, I enhance the starting point for the base drug of 4 years to one of 5½ years. For your plea of guilty, I will give you a discount of one-third, therefore for the 2nd charge, 3 years and 8 months.
Finally, I have to consider whether the two sentences should run concurrently, consecutive or partly concurrent and partly consecutive. From the facts of the case, you could have been charged in one single count. But if you were charged in one single count, the drugs will be more, there will be two mixtures of drugs.
I again do a similar calculation with the 1st and 2nd charge. The total quantity of heroin will be 50.22 grammes, cocaine 7.85 grammes, ketamine 192.12 grammes, and MDMA 8.64 grammes. Again, for calculation purposes, I will ignore cannabis. The total quantity of narcotics is 258.83 grammes. I use heroin as the base drug. Assuming for that quantity of heroin, that is 258.83 grammes of heroin, the starting point will be 12 years and 9 months.
I then do a conversion test. For 4 years of imprisonment for cocaine, it will be 7.85 grammes of heroin. For ketamine, 7 years and 9 months will be equivalent to 46 grammes of heroin. And for MDMA, 3½ years, it will be equivalent to about 5 grammes of heroin. I add them up together and it gives me a figure of 58.85 grammes of heroin. And the starting point for 58.85 grammes of heroin will be 8 years.
I then conduct a ratio test, heroin accounts for 19 per cent, cocaine 3 per cent, ketamine 74 per cent, and MDMA 4 per cent. For heroin, I use 12 years and 9 months times that with 19 per cent, that gives me 2.42 years. Similarly, for cocaine, I use 12 years and 9 months and times that by 3 per cent gives me 0.38 years. For ketamine, the starting point will be, for that quantity, 8.5 years. I times that by 74 per cent and that gives me 6.29 years. And finally, MDMA, 8.5 years times 4 per cent will give me 0.34 years. Add them up together and round it up, it will be about 9½ years.
So if you were charged in one single charge with all the drugs involved, the starting point lies between 12 years 9 months and 8 years. Taking the aggravating factors which I have mentioned, I will use a starting point of 10 years and 9 months. Giving you one-third discount, it will be 7 years and 2 months.
So as I said, you could have been charged in one single charge and if you were being charged in one single charge, the sentence will be one of 7 years and 2 months. And I am of the view that this is the correct sentence.
So my order is 6 months in the 2nd count, the 2nd charge, is to run consecutively to the 1st. So the total sentence that I am giving you is 7 years and 2 months.
I hope you can live up to what you had said in your letter to the court, because after all you are still young, 20 years of age.