COURT: On 22 August 2022, the defendant pleaded guilty in the Eastern Magistrates’ Court to one charge of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance. This morning, he confirmed his plea before me and accepted the Summary of Facts read to him.
The count alleged that on 9 July 2021, the defendant unlawfully trafficked in dangerous drugs, namely 284.82 grammes of a solid containing 246.88 grammes of ketamine and 16.63 grammes of a solid containing 14.48 grammes of cocaine.
The Facts
The Summary of Facts reveals that on 9 July 2021, at about 3:57 pm, the police intercepted the defendant outside a male washroom of a shopping mall. The defendant was carrying a suitcase and was talking on his mobile phone. The police asked him to hand over both items but the defendant tried to flee and was eventually subdued.
The suitcase that the defendant was carrying was found to contain the ketamine and cocaine that is the subject of the charge.
The police officers seized the following inside the suitcase:
(1) A plastic bag containing 105 plastic bags containing a total of 67.29 grammes of a solid containing 58.36 grammes of ketamine;
(2) A plastic bag containing 204 plastic bags containing a total of 178.67 grammes of a solid containing 154.86 grammes of ketamine;
(3) A plastic bag containing 60 plastic bags containing a total of 38.86 grammes of a solid containing 33.66 grammes of ketamine and 102 plastic bags containing a total of 16.63 grammes of a solid containing 14.48 grammes of cocaine;
(4) Three vacuum sealers;
(5) Three digital scales;
(6) Large piles of empty resealable plastic bags and vacuum sealing bags; and
(7) Scissors, gloves, stapler and staples, spoons and rolls of tape.
The estimated street values of the ketamine seized was $172,031; and the cocaine was between the range of $18,742 to HK$22,766.
The defendant now admits and accepts that at the material time, he was knowingly in possession of the subject dangerous drugs seized for the purpose of unlawful trafficking.
The Defendant’s Background
The defendant’s antecedent report reveals that he is now 41 years of age. He was educated up to Form 5 level. At the time of his arrest, the defendant was unemployed. The defendant had a relevant and similar previous conviction. On 12 June 2015, the defendant had been sentenced in the High Court to an overall sentence of 8 years’ imprisonment for the offence of trafficking in dangerous drugs. He was released from custody for that offence on 1 September 2018.
At mitigation, no issue was taken with the enhancement of sentence for the defendant’s previous conviction.
Sentencing Principles and Tariffs
It is well-established that trafficking in dangerous drug is a very serious offence. In the Court of Appeal decision HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstances 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 Herry Jane Yusuph.
First, 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 guidelines for trafficking ketamine are found in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. According to the sentencing guidelines, for the quantity of 246.88 grammes of ketamine, the defendant is in the band of 50 grammes and 300 grammes, where the guideline starting point for traffickers after trial, subject to any enhancement, is 6 to 9 years’ imprisonment.
Cocaine
Cocaine and heroin are equated for sentencing purposes and the tariffs for heroin in R v Lau Tak Ming [1990] 2 HKLR 370, as stated by HKSAR v Abdallah [2009] 2 HKLRD 437, apply to cocaine.
According to the sentencing guidelines, for the quantity of 14.48 grammes of cocaine, the defendant is in the band of 10 grammes and 50 grammes, where the starting point for traffickers after trial subject to any enhancement, is 5 to 8 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 guidelines 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 will 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 that 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 Court of Appeal, as stated, reaffirmed that the bands were for the least culpable of drug traffickers, and couriers fall into this category.
The facts of this case revealed that the defendant rented a hotel room from 4 to 10 July 2021 in his own name. The CCTV at the hotel and in the mall captured the defendant carrying the suitcase in the hotel elevator shortly before he was intercepted, and also his route inside the mall, heading to the washroom.
The police did not find anything else implicating in the defendant’s hotel room or in the house search at the defendant’s residence. Mr Ma submits that the defendant’s role is one of a courier.
While I am suspicious as to the defendant’s role as to whether he is more than a mere courier or a storekeeper, it is by no means certain on the evidence before me as to what his exact role is. I will sentence the defendant in accordance with the guidelines as if the defendant is a courier.
Overall Starting Point
In determining the proper overall starting point, I have reminded myself of the sentencing principles for trafficking in a cocktail of drugs.
There are three means of cross-checking the appropriateness of the overall starting point in the case of a trafficking involving different types of drugs: see HKSAR v Yip Wai Yin & Anor [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 “ratio test” respectively. They are as follows and it will be set out in a table form:
|
|
Calculation |
Starting point |
|
Sentencing guidelines |
Cocaine – 14.48 grammes
Ketamine – 246.88 grammes |
5 years 4 months
8 years and 4 months |
|
Absurdity test |
Notionally adding up all drugs to arrive at a total of 261.36 grammes of “Cocaine” |
12 years 11 months |
|
Conversion test |
Converting all drugs into Cocaine to achieve the figure of 76.98 grammes of “Cocaine”
Converting all drugs into Ketamine to achieve the figure of 283.55 grammes of Ketamine |
8 years and 8 months
8 years and 9 months |
|
Ratio test |
The starting point of each drug on the basis of 261.36 grammes of narcotic × ratio:
Cocaine: 5.54%
Ketamine: 94.46% |
8 years 8 months |
As set out in the above table, to sentence the defendant on the individual approach would produce a sentence which will be too high and does not properly reflect the justice of the case.
I examined the overall starting point by cross-checking it against the results of the absurdity test, the conversion test and the ratio test. In the present case, both the conversion test and the ratio test produced similar results.
To achieve a realistic and reasonable sentence, I will use the conversion test to arrive at the starting point. For the conversion test, both drugs attracts heavy sentence; but there is a dissimilarity in the level. While the total amount of cocaine represented only 5.54 per cent 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. In determining the appropriate overall starting point, I also take into account the role and culpability of the defendant as a courier. On a pure arithmetic calculation, this resulted in an overall starting point of 8 years and 8 months’ imprisonment.
The fourth step requires me to consider whether there are any aggravating factors which require me to enhance this starting point.
There are two aggravating factors in this case.
The defendant has been sentenced to gaol for trafficking in dangerous drugs in 2015. The present offence was committed in less than three years after the defendant’s last discharge from a substantial sentence in respect of the very same offence.
As for enhancement of sentence for the defendant’s previous convictions, Macrae VP in HKSAR v Har Tsz Yui [2019] HKCA 1336 set out the principles in paragraphs 15 to 19. First, it is open to the judge to enhance the sentence of the defendant because of the repeated nature of offending in respect of serious offences. Second, the aggravating feature of the defendant being a repeat offender, whatever the offence, is not susceptible of an arithmetical application of percentage enhancements. Much will depend on the facts of the case, the nature and seriousness of the offence, the circumstances of the individual, the degree of the defendant’s persistence in committing the particular category of offence, and the need for personal and public deterrence. Third, it is a matter within the judge’s sentencing discretion.
The second aggravating factor is that the defendant was trafficking in two different types of drugs. 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, the ability of the trafficker to cater to a wider market than a trafficker in only one kind of drug; and two, the effect on users of combinations of dangerous drugs: see Chan Yuk Leong at paragraphs 23 to 25.
For these two aggravating factors, I am of the view that an enhancement of 6 months is appropriate. Thus, the notional sentence after trial for the charge becomes 9 years and 2 months’ imprisonment.
Fifth, I am required to have due regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal circumstances will account for little, unless they are exceptional.
Mr Ma has very sensibly accepted that there are no other mitigating circumstances concerning the defendant to support a discount on sentence apart from his timely plea of guilty. I will give a full one-third discount to the defendant. I cannot see there is present in respect of the defendant anything that would be characterised as a “very special factor” that would justify me going beyond the one-third discount.
His sentence after a one-third discount is one of 6 years and 1 month’ imprisonment (after rounding down).
The final stage of the sentencing process is to stand back and look at the overall sentence to ensure it is fair, balanced and just. Taking into account the circumstances of the offence and the submissions made by Mr Ma on the defendant’s behalf, I am of the view that the ultimate sentence of 6 years and 1 month’ imprisonment in the circumstances of this case is appropriate and is not out of proportion to the defendant’s overall criminality.
The final sentence I would impose on the defendant is one of 6 years and 1 month’ imprisonment.