COURT: The defendant pleaded guilty at the committal stage to two charges of trafficking in dangerous drugs.
The 1st charge reads that the defendant, on 23 April 2021, at No. 35 Dundas Street, Mong Kok, unlawfully trafficked in a dangerous drug, namely, 9.36 grammes of a solid and 5 tablets containing 2.32 grammes of 3,4-methylenedioxymethamphetamine (MDMA), 0.27 grammes of a solid containing 0.26 grammes of cocaine, 27.2 grammes of a solid containing 23.5 grammes of ketamine, and 131.7 grammes of a crystalline solid containing 66.17 grammes of methamphetamine.
The 2nd charge, which he pleaded guilty to, charged him on the same day at the same location, trafficking in a dangerous drug, namely, 0.66 grammes of a solid containing 0.60 grammes of cocaine.
Facts of the case is quite simple and straightforward. He was seen by police in the vicinity of No. 35 Dundas Street close to a vehicle parked on the road. He looked nervous and suspicious. He was stopped and searched. Key was found on him. The key is for the private car that was parked at the roadside. Police used the key to open the car door and found inside the drugs mentioned in the 1st charge. He was arrested and cautioned for that, and he immediately confessed and said that he received $3,000 for the delivery of the drugs for another person.
Because of his body movement, police searched him and on his person, drugs in the 2nd charge was found. He was cautioned for that and he said the ‘Coke’, that is, cocaine, was for his own consumption. This morning, I am told by counsel representing you, Ms Hui, that there is no longer the issue of self-consumption. In fact, in the Summary of Facts which you have admitted, in paragraph 12, you had admitted that and accept at the material time you unlawfully trafficked in the dangerous drugs seized.
The street value of the drugs seized was about $88,000-odd.
The facts of this case is very similar to the case of Wan Lau Mei [2014] 4 HKC 75, where the Court of Appeal said:
“[When sentencing] two trafficking offences where different quantities of dangerous drugs were found in the accused’s possession on the same day but at different locations, the judge should regard the two offences as representing one occasion of possession of the total amount of drugs on both offences for that total, making the sentence concurrent with one another.
Such an approach more truly reflects the accused person’s culpability as the reality of the situation was that on the day of the charge, the accused was in an overall possession of the drugs found at the two locations.”
The Court of Appeal said:
“It was also an approach which ensure that the accused’s final sentence was not artificially inflated by separating out the drugs for the two charges as though the accused had been guilty of two quite separate offences and then imposing consecutive sentences.”
In this case, the drugs were in fact found at the same location, unlike the case in Wan Lau Mei. I am therefore of the view that it is more appropriate to adopt what was suggested by the Court of Appeal in Wan Lau Mei in this case when I deal with both charges.
You are 61 years of age. You are a drug addict and you have three previous convictions in relation to dangerous drugs, two for possession for the purpose of unlawful trafficking and one actual trafficking. And for the trafficking in dangerous drugs, you last appeared before the High Court, Court of First Instance in 2013, and you were sentenced to a term of imprisonment for 7 years and 9 months. And you were discharged from prison for that offence in August 2017.
The drugs involved in both charges are as follows.
For MDMA, 2.32 grammes. Cocaine in both charges add up to 0.86 grammes. Ketamine, 23.5 grammes. Methamphetamine or ‘Ice’, 66.17 grammes. For ‘Ice’, I would take that as the base drug.
And for that quantity of ‘Ice’, the starting point is 10½ years. For the other types of drugs, ketamine, second largest quantity in both charges, the appropriate starting point will be 4½ years. For MDMA, starting point will be 2 years, and cocaine, 1½ years.
Using ‘Ice’ as the base drug and the starting point, as I have said, is 10½ years, the question I now have to decide is in view of the mixture of drugs, that starting point of 10½ should be enhanced by how much? Assuming all the drugs seized were ‘Ice’, the total quantity of narcotics is 92.85 grammes. That, applying the tariff for ‘Ice’, would be 11½ years.
I also conducted a conversion test. For the sentence of ketamine, the conversion will be equivalent to about 9 grammes of ‘Ice’. And for MDMA, it will be about 4 grammes of ‘Ice’. Cocaine is same as ‘Ice’, the tariff. Therefore, it will be 0.86 grammes of ‘Ice’. Having converted them, the total of ‘Ice’ will be 80.03 grammes of ‘Ice’. The starting point for that quantity of ‘Ice’, I reckon, would be 11 years and 2 months.
I further conducted a ratio test. For ‘Ice’, it was about 71 percent of the total drugs seized. Ketamine, 25 percent. MDMA, about 2 percent. And cocaine, 1 percent. As I said that for ‘Ice’, assuming they are all ‘Ice’, the starting point will be 11½ years. I then times that 11½ years by 71 percent. That gives me 8.165 years. Assuming they are all ketamine, for 92.85 grammes of ketamine, the sentence will be 6½ years. I times that with 25 percent and this gives me 1.625 years. For MDMA, the sentencing tariff is the same as ketamine. I multiply it by 2 percent and that gives me 0.13 years. And finally, for cocaine, the same tariff, 11½ years times 1 percent gives me 0.11. I add all these years together and this gives me 10.035 years.
Having conducted these three tests, known as absurdity, conversion and ratio, I will adopt a starting point by enhancing the 10½ years which I set for ‘Ice’, for that quantity of ‘Ice’, 66.17, to one of 11 years and 3 months.
Having arrived at that starting point, I then next have to consider what aggravating factors are there in this case. As said on many occasions, trafficker who traffic in a variety of drugs is an aggravating factor. I also consider your record, which I take is also an aggravating factor because you have, on three occasions, been convicted of either possession for the purpose of unlawful trafficking or actual trafficking. Taking those factors into account, I enhance the sentence to one of 12 years.
From your background, which I have been told, and also what you have said under caution as to the reason why you committed the present offence, I do not find any mitigating factors. The only mitigation in your case is your plea of guilty at the earliest available opportunity. For that, I will give you a one-third discount.
For the 1st charge, I sentence you to 8 years’ imprisonment. For the 2nd charge, I also give you a term of imprisonment of 8 years.
The two sentences are to run concurrently, so in total you will only go to prison for 8 years.