COURT: The 1st defendant has admitted in the Magistrate’s Court to one count of trafficking in a dangerous drug, namely, 29.96 grammes of a solid containing 25.18 grammes of ketamine. And he has also pleaded guilty to a 2nd count of conspiracy to traffic in a dangerous drug on 6 September to 12 September inclusive, with a person known as Chow Ka-shing, and they had conspired to traffic in a dangerous drug, namely, ketamine.
The police, acting on information, on 12 September 2020, in the early hours of the morning at 2 am, raided a room at the Harbour Plaza Resort City and found the 1st accused and another person inside. The room was originally rented in the name of the 2nd accused and another person on 9 September. However, the room was rented on 10 September and 11 September under the names of the 1st and 2nd accused and another person. During the investigation, the 2nd accused came to the room and he was also arrested.
Inside the room were found, in a wardrobe, a black backpack containing the ketamine in the 1st count. On the dining table were found the cocaine which is the subject matter of the 3rd count. Upon being arrested and cautioned, the 1st accused admitted that the ketamine belonged to him, and the 2nd accused admitted that the cocaine belonged to him.
The 1st accused made a series of video-recorded interviews under caution and revealed to the police that he had taken the ketamine to the hotel room from a village house in Yuen Long which will be referred to as the “YL storage” hereinafter. He said that he would deliver ketamine on the instructions of his co-conspirator in the 2nd charge, someone called Chow, and payments will be made directly to Chow and not to him.
When the 1st accused led the police to the YL storage, the keys found on the 1st accused was found to be able to open the metal gate, but not the wooden door. Upon entering, police found ketamine in a plastic bag consisting of 41.7 grammes of a solid containing 36.2 grammes of ketamine. In another plastic bag was found a metal spoon and 87.6 grammes of a solid containing 74.1 grammes of ketamine, and the 1st accused’s fingerprint was actually subsequently detected on that. And then another plastic bag was found containing 0.86 grammes of a solid containing 0.74 grammes of ketamine. Also found on the premises were plastic containers, transparent resealable plastic bags, electronic scales and chemicals, including hydrochloric acid and ethanol.
And he gave the police a full confession about the fact that he started helping Chow deliver dangerous drugs three to four months prior to his arrest. But this Chow alleged that he had stolen or rather lost some ketamine and then framed the defendant with a debt of $160,000. And so Chow then said to the defendant that he was to deliver more ketamine for him in order to repay the debt, and the arrangement was that Chow or his girlfriend would pass him the keys for opening the wooden door and the metal gate.
And he also identified to the police the telephone numbers of the 2nd accused and also Chow, and explained how what the various messages meant. And it was obvious from his explanation that Chow was in complete control because the defendant not only had to take a picture of the drugs he took away from the YL storage to send to Chow, he also had to take a picture, a photograph, of the taxi receipt in order to show Chow for reimbursement. So, it can be said that the 1st defendant was treated like a fool by Chow. Not only did he help him in the delivering the drugs, but he was scammed by Chow when he alleged that he had lost the ketamine and owed him $160,000.
As far the 1st defendant is concerned, the only mitigation for him is the fact that he had confessed, and not only confessed but come clean to the police of everything the he had done, which is a very, very earnest sign of his deep remorse.
The 1st defendant was born in July 2001 and therefore he would be about age 22 by now. I am informed by Ms Hui that he had ADHD as a child and it probably affected his academic performance and that is why he left school in Form 3. His father passed away or rather he lost contact with his father when he was a child and really he was brought up by a single parent, that is, his mother, who worked hard to raise him.
I am informed the 1st accused had one previous conviction for theft and he was given a probation order, and because he breached the probation order, he was then sent to a rehabilitation centre.
I am comforted by the fact that the 1st accused, in his letter to the court in mitigation, states that he is totally remorseful. And the 1st accused’s mother also says that the future plan of the defendant was to study classes in prison and improve himself. So there is a glimmer of hope for the defendant in the future if he applies himself to studying and learning a trade. He does not have to be academically successful but to be skilful in a trade, so that when he comes out of prison, he can get a job. As the Chinese saying goes “行行出狀元”. And that is why it does not matter if academically you are not good, but if you learn a trade which you are good at, then you will become successful.
Now, it is clear that these offences of drug trafficking are very serious in Hong Kong. The Court of Appeal has recognised it so and they have laid down guidelines as to the type of sentences to be given relevant to the weight of the drugs that have been trafficked. As Ms Hui pointed out correctly, the case of Hii Siew Cheng in 2009 had laid down guidelines for trafficking in ketamine. And the guideline is that for trafficking in between 10 to 50 grammes of ketamine, the suggested sentence should be 4 to 6 years after trial. And as Ms Hui has correctly worked out, the starting point therefore should be 4 years 9 months in this case.
And so giving the defendant the full one-third discount for his plea, the sentence is therefore 3 years and 2 months for the 1st count.
Now, in relation to the 2nd count, as Ms Hui has also worked out, the amount of drugs of ketamine found in YL storage is in the region of 111.04 grammes. And without a doubt, the sentence reflecting that on this charge would also factor in the weight of the drugs that were found. And the starting point in relation to this amount of drugs would be, as suggested in Hii Siew Cheng, 6 to 9 years for 50 to 300 grammes of ketamine.
I would adopt a starting point of 6½ years. And I will give, as Ms Hui has suggested, as said in the case of Tsang Ka Wing [2017] 5 HKLRD 799, in paragraph 48, the Court of Appeal said that in a case where the applicant’s assistance does not include giving evidence, etc, then they were of the view that it should not be 40 percent.
However, I consider that the assistance that the defendant gave in this case in relation to the 2nd count were tangible and valuable because of what I had recounted earlier about his assistance, leading to the discovery of over 111 grammes of ketamine.
So I will reduce the sentence from 6½ years, taking into account the full remorse of the defendant in his early plea and also the background facts of how this case came to light, I will reduce that sentence to 4 years’ imprisonment.
And I have to consider the totality principle, and taking into account of the facts of the case, the background of the defendant, I will therefore sentence the defendant in this way: On the 1st count, 3 years 2 months; on the 2nd count, 4 years’ imprisonment, 2 years to be consecutive to the 1st count. And so the defendant will go to prison for a period of 5 years and 2 months in total.
Now, the 2nd defendant, he has pleaded guilty in the lower court to trafficking in the cocaine. He is 2 years older than the 1st accused. He has one previous of claiming to be a member of a triad society.
The 2nd defendant is luckier than the 1st defendant in that he came from a family with a grandmother, a father and a younger sister. In mitigation, Ms Cheng has submitted that the 2nd accused first came into contact with dangerous drugs in 2019 when he became addicted to cocaine and he consumed it daily. As to the hotel room that they were found in, the 2nd accused said that he would take drugs there and also kept the drugs in Count 3 in the room for trafficking. And as in the case of the 1st accused, his greatest mitigation is the fact that he had pleaded guilty and confessed at the earliest opportunity.
As Ms Cheng correctly pointed out, the case of Lau Tak Ming in 1990 had laid down sentencing guidelines, and it recommends that for trafficking up to 10 grammes of cocaine, the sentence should be 2 to 5 years’ imprisonment. Ms Cheng had correctly worked out that the starting point sentence on a pure mathematical basis would be 44 months.
However, I do take into account the fact that, as far as the 2nd accused is concerned, he says he is drug-dependent and used to take drugs in the room, and so I will take a starting point therefore in the case of 42 months and taking one-third off, that remains 28 months, which is 2 years and 4 months’ imprisonment.