COURT: The defendant pleaded guilty in the Eastern Magistrate’s Court on 5 September 2022 to the charge of trafficking in a dangerous drug, and he was committed for sentence to the Court of First Instance.
The charge alleges that on 22 December 2020, at a flat in Cullinan West, Sham Shui Po, Kowloon, the defendant unlawfully trafficked in 998 grammes of a solid containing 866 grammes of ketamine, 227 grammes of a solid containing 198 grammes of cocaine hydrochloride and 27.63 grammes of a solid containing 13.43 grammes of cocaine.
He comes before me today for sentence, having confirmed his plea and his admission of the Summary of Facts in support.
The Facts
The Summary of Facts reveals that at around 8:54 pm, on 22 December 2020, the defendant was intercepted by surveillance officers when he entered the flat on 18th Floor, Block 3B of Cullinan West in Sham Shui Po (“the flat”) by pressing the passcode on its digital lock. Surveillance and CCTV footages show that the defendant had attended the flat on 19 December 2020 and in the morning of 22 December 2020.
Upon a house search, many suspected dangerous drugs manufacturing apparatus and equipment were found, some were later detected to contain cocaine traces. There were also two batches of ketamine and cocaine hydrochloride.
The drugs that are the subject of the charge were found in different locations.
First, at the lower partition inside a cabinet above the refrigerator in the flat’s living room, in a recycle bag, there was a paper box containing two Ziplock bags containing a total of 998 grammes of a solid containing 866 grammes of ketamine; and another plastic bag containing 227 grammes of a solid containing 198 grammes of cocaine hydrochloride.
Together with those drugs, two electronic scales and a Ziplock bag containing three bunches of small-sized bags were found.
Other drugs that formed the subject of the charge were found scattered in three other locations as follows.
Inside the washroom
(a) a Ziplock bag containing two Ziplock bags containing a total of 7 grammes of a solid containing 1.51 grammes of cocaine;
(b) 27 small Ziplock bags containing 10.12 grammes of a solid containing 3.25 grammes of cocaine;
(c) a silver pot containing 2.45 grammes of a solid containing 1.56 grammes of cocaine;
(d) three pairs of wooden chopsticks containing a total of 0.45 grammes of a solid containing 0.36 grammes of cocaine.
Apart from the drugs, a large bundle of Ziplock bags and two bundles of small Ziplock bags; different-sized electronic scales containing traces of cocaine were found.
Outside the shower area
A black pot containing 3.65 grammes of a solid containing 3.19 grammes of cocaine.
At the balcony inside a suitcase
(a) a pot containing 3.71 grammes of a solid containing 3.56 grammes of cocaine;
(b) many apparatus containing small amounts or traces of cocaine, amongst which are:
(1) a cup containing 0.06 grammes of a solid containing cocaine;
(2) one pot, one bowl, one stand, one measuring cup, one sieve, three chopsticks, two spoons containing a total of 0.13 grammes of a solid containing cocaine;
(3) two lids, one containing 0.02 grammes of a solid containing cocaine;
(4) one pot containing 0.04 grammes of a solid containing cocaine;
(5) two electronic scales and an induction stove;
(6) a pair of scissors;
Other items seized were:(i) a paper box containing 461 grammes of a solid containing sodium bicarbonate; (ii) a large size Ziplock bag containing two Ziplock bags and a bundle of plastic bags; (iii) another bundle of Ziplock bags; and (iv) gloves, marker pen and a sealing machine were found.
At the upper partition inside the flat, there were two boxes containing a total of 917 grammes of baking soda, a sealing machine, an envelope containing a tenancy agreement and an estate agency agreement in the defendant’s name with a receipt issued to the defendant by a property agent and water and electricity bills in the defendant’s name.
The police also found on the defendant HK$9,140 in cash, a residence card of Cullinan West, an Octopus card and four mobile phones.
The defendant was arrested. Under caution, he admitted he owned the mobile phones seized near the washing basin and on the bed. He admitted entering the flat using the Octopus card and by entering a password at the door.
The real estate agent confirmed that she brought the defendant and his friend to visit the flat in March 2020. On 27 March 2020, the defendant went to the estate agent’s office and signed the tenancy agreement. The estate agent gave three keys to the defendant. On 30 March 2020, the estate agent helped the defendant to change the passcode on the door lock.
The building’s management staff confirmed the defendant and another person, Mr Yuen, had registered their respective Octopus cards as their flat’s residence cards.
The defendant now admits and accepts that at the material time he was in possession of the dangerous drugs seized at the flat for the purpose of unlawfully trafficking in them.
The street value of ketamine seized is HK$602,792, and the cocaine is HK$401,042.25.
Mitigation
The defendant is 28 years of age with a clear record. He was born and raised in Hong Kong. He was educated up to Form 6.
In mitigation, counsel informs the court the defendant committed the current offence due to financial pressure. It was said that the defendant developed gambling habits since he was 20 years old and was indebted to the sum of $500,000.
Since 2014, he had been working as a real estate agent with a monthly income of $5,000. He also took up other part-time jobs as a security guard and a waiter to make monthly repayments. Mr Iu submits that in 2019, his father unfortunately suffered a heart disease and required surgery. The defendant wanted to earn quick money, that is, HK$10,000 to support his father.
Mr Iu also confirms that the defendant did not claim self-consumption of the drugs nor is the defendant a habitual drug user. It was said that he committed the offence out of foolishness and has allowed himself to be influenced by a bad element. He did not think about the consequences at the time, but now realises how serious the offence is.
Two letters have been submitted to me as part of his submission in mitigation. One is from the defendant himself in which he described how his life has been affected due to his gambling habit. He writes that he recognises the mistakes he has made and now realises the seriousness of the conduct to which he has pleaded guilty. He expresses deep remorse and he is keen to reform and turn a new leaf. He expresses his wish to enrol a course to become a chef in future.
The other is from the defendant’s father who describes him as a filial son and had all along taken part-time jobs to support family. He also asked the court to pass a lenient sentence.
This is a sad case. The defendant is a young man who should have a promising future ahead of him. It appears he has been supported by a caring and loving family. It also appears that he became addicted to gambling and as a consequence he allowed himself to be influenced by undesirable peers.
Sentencing Principles and Tariffs
It is well-established that trafficking in a dangerous drug is a very serious offence. In the Court of Appeal case of Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstance were of far less importance than the sentencing principles of denunciation, deterrence and punishment.
In sentencing, I shall follow the six-step approach enunciated by the case of Herry Jane Yusuph.
The first step is to assess the gravity of the offence. There are two different types of drugs involved in this case, namely, ketamine and cocaine.
“Ketamine”
The sentencing guideline for trafficking in ketamine are found in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. According to the sentencing guidelines, for the quantity of 866 grammes of ketamine, the defendant is in the band of 600 grammes and 1,000 grammes where the guidelines’ starting point for traffickers after trial, subject to any enhancement is 12 to 14 years’ imprisonment.
“Cocaine”
Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming [1990] 2 HKLRD 370, as modified by HKSAR v Abdallah [2009] 2 HKLRD 437 apply to cocaine.
According to the sentencing guidelines for the quantity of 211.43 grammes of cocaine, the defendant is in the band of 200 grammes and 400 grammes where the starting point for traffickers after trial subject to any enhancement is 12 to 15 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence.
As was held in Herry Jane Yusuph, at paragraph 59:
“The guideline for trafficking in dangerous drugs are based upon the courier or storekeeper; that is, the person who is delivering, distributing, or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
Consequently, it would not be possible to properly apply the guidelines until the court takes a view of the role and culpability of the defendant.
The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside that band whether above or below given the circumstances of the offence and the role of the defendant.
The assessment made in the second step is relevant in determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for least culpable of drug traffickers, and courier fall into this category.
The facts of this case reveal that the defendant signed the tenancy agreement, had keys and access code to the flat in which a significant amount of dangerous drugs were found, with different size of electronic scales, and a large quantity of resealable plastic bags. Further, there was also an amount of HK$9,140 in cash found on the defendant. Mr Iu submits that the defendant’s role is one of a storekeeper and said he was being used by others to sign the rental agreement. Given the defendant’s heavy indebtedness, Mr Iu submits that the defendant would not have the financial means to pay the rent which was more than HK$15,000 per month or purchase the drugs in question, so there must be someone behind the scene or behind the defendant.
While I am suspicious as to the defendant’s role as to whether he is more than a mere courier or storekeeper, considering the defendant’s clear record and it is by no means certain as to what his exact role is, I will sentence the defendant in accordance with the guidelines as if the defendant is a courier or a storekeeper.
Overall Starting Point
In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in cocktail drugs. There are three means of cross-checking the appropriateness of the overall starting point in case of a trafficking involving different types of dangerous drugs. See HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Chan Yuk Leong CACC 318/2013 and HKSAR v Islam Majharul [2020] 3 HKLRD 146.
I set out the different starting points, which both counsel have accepted as correctly calculated in accordance with the sentencing guideline and the so-called “absurdity test”, “conversion test” and the “ratio test” respectively. And I set it out in a table form.
|
|
Calculation |
Starting point |
|
Sentencing guidelines |
Cocaine – 211.43 grammes
Ketamine – 866 grammes |
12 years 2 months
13 years 3 months |
|
Absurdity test |
Notionally adding up all drugs to arrive at a total of 1,077.43 grammes of “Cocaine” |
22 years 4 months |
|
Conversion test |
Converting all drugs into “Cocaine” to achieve the figure of 494.76 grammes of “Cocaine” |
17 years 4 months |
|
Converting all drugs into Ketamine to achieve the figure of 1,499 grammes of Ketamine |
16 years |
|
Ratio test |
The starting point of each drug on the basis of 1,077.43 grammes of narcotic x ratio:
Cocaine: 22 years 4 months’ x 19.615%
Ketamine: 14 years 3 months x 80.385% |
15 years and 10 months |
As stated in the above table, to sentence the defendant on the individual approach will produce a sentence which would be too high and does not properly reflect the justice of the case.
To achieve a reasonable and realistic sentence, I will adopt the combined approach, which involve an upward adjustment from the starting point of the base drug. In the present case, both drugs attract heavy sentence but there is a dissimilarity in the level.
While the total amount of cocaine represented only 19.6 percent of the total drugs, cocaine was the more or most serious drug in terms of potency. I will use cocaine as the base drug to calculate the starting point.
According to the sentencing guideline for 211.43 grammes of cocaine narcotic, the starting point is 12 years and 2 months’ imprisonment.
In determining the upward adjustment for the remaining 866 grammes of ketamine narcotic, I examine the overall starting point by checking it against all three tests. The absurdity test is 22 years 4 months. The conversion test is 17 years and 4 months when using the sentencing guidelines for cocaine as the base. The ratio test is 15 years and 10 months’ imprisonment.
In determining the appropriate overall starting point, I also take into account the role and culpability of the defendant as a storekeeper. I consider it fair to make an adjustment of 4 years’ imprisonment, resulting in an overall starting point of 16 years and 2 months’ imprisonment.
The fourth step requires me to consider whether there are any aggravating factors which might require me to enhance this starting point. As already noted, the trafficking involve two different types of dangerous drugs.
In Chan Yuk Leong, at paragraphs 23 to 25, the fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.
One aggravating feature is the ability of the trafficker to
cater to a wider market than the trafficker in only one kind of drug. More important is the effect on users of combinations of dangerous drugs. I will enhance the starting point by 3 months to 16 years and 5 months’ imprisonment.
Fifth, I am required to have regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in a dangerous drug, personal circumstances will count for little unless they are exceptional.
Mr Iu very sensibly accepted that there are no exceptional mitigating circumstances concerning the defendant in this case to support a discount on sentence apart from the defendant’s timely and early plea of guilty at the committal stage. The real mitigating factor in this case is the defendant’s timely plea. I will give the full one-third discount to the defendant in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. I reduce the overall starting point to a term of 10 years and 11 months’ imprisonment.
The sixth and final step is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. In the words of Deputy High Court Judge McWalters, in HKSAR v Suen Yuk Hang [2021] HKCFI 2940, the judge should ensure the sentence is not a crushing one but one that is fair, balanced, timely and just.
I am prepared to accept in the circumstances of the present case that the defendant has been led astray by the influence of others and together with his immaturity has committed this crime. I am of the view that in the special circumstances of this case, rehabilitation of him is a matter of some importance which warrants greater emphasis when passing sentence.
Tailoring the sentence to the circumstances of this offender without undermining the sentencing principles relevant to trafficking offences and having regard to the authorities cited in which the sixth step has been applied to lengthy sentences, the defendant’s sentence will be reduced to 10 years and 9 months’ imprisonment. In my view, such a sentence is sufficiently punitive and sends a clear message of denunciation and deterrence.
The final sentence I would impose on the defendant is one of 10 years and 9 months’ imprisonment.