COURT: Defendant, you were unanimously convicted after trial by a jury of the offence of trafficking in dangerous drugs. The jury found you had trafficked in 1.48 grammes of a powder containing 1.43 grammes of cocaine, 101 grammes of a powder containing traces of deschloro-N-ethyl-ketamine, 500 grammes of a crystalline solid containing 27.9 grammes of methamphetamine and 465 grammes of a crystalline solid containing traces of methamphetamine inside your home at Flat J, 25th Floor of Block 4, Grandeur Terrace, Tin Shui Wai.
The prosecution evidence at trial, which was not disputed, was that on 8 June 2020 at about 2153 hours whilst some police officers were laying ambush on the 25th Floor of Block 4, Grandeur Terrace, you the defendant came out of your residence at Flat J with a black rubbish bag and headed for the rear staircase on the 25th floor.
The arresting officer intercepted you and revealed his police identity and warrant card. A search was conducted on your person and the black rubbish bag and nothing illegal was found.
About 2159 hours, with your consent, the police officers entered your home for a house search. Upon entry into your home, a female by the name of Ma Yuk-ting was inside the living room sitting on the sofa.
Your home was searched by another police officer, the exhibits officer. The exhibits officer found amongst other items the quantity of drugs as stated in the charge, and a quantity of about 5,000 grammes of white powder and/or crystalline solid that did not contain any dangerous drugs. He also found approximately 180 empty transparent resealable plastic bags and two electronic scales.
Your defence at trial was that you, the defendant, had no knowledge of the drugs in your home, that the drugs found belonged to your live-in girlfriend, Ms Ma Yuk-ting. You also alleged that the confession, which the prosecution said, you said “all the drugs belonged to you and had nothing to do with the female”, was made involuntarily. By the jury’s verdict, they rejected your case.
The drug valuation expert, Detective Senior Inspector Cheng was unable to give an estimate value of the drugs ‘Ice’ that was found in your home as the purity of the drugs was only 3 per cent. His statistics of the value of ‘Ice’ is based generally on a purity of 97 per cent. As the purity of ‘Ice’ was too low, he could not reflect the price at street value and therefore was unable to give an estimate.
However, the estimated street value for the cocaine found was $2,159 if in powder form or $4,356 if in crack cocaine back in June 2020.
Defendant, you are now 48 years of age. You were born in mainland China and came to settle in Hong Kong in 1982. You are presently divorced. You and your ex-wife had a daughter. However, in 2019, your daughter passed away when she was 17 years old. Your parents and elder sister live in Hong Kong but apart from you. You lived at this subject address of the commission of these offences and were a registered tenant of this public housing unit.
Mr Gordon Wong, your counsel at trial and in mitigation, has informed the court that you are educated up to Primary 6 level. Prior to your arrest, you had worked as a delivery worker and a car mechanic.
You have five previous convictions on three separate appearances at court. All of those convictions are drug related. The last three of those convictions are similar to the present offence, that is for trafficking in dangerous drugs.
In 2014, you were sentenced to 4 years and 8 months’ imprisonment. On 31 December 2021, you were sentenced to 16 years for one offence and 9 years 9 months for another offence in the case of HCCC 264/2020 and 21 months of the second trafficking offence was ordered to run consecutive to the first, making a total term of imprisonment of 17 years and 19 months to which you are now serving.
In your antecedent statement, it says you are drug-dependent, mainly on the drug ‘Ice’ and have been so since 2010. Notably, your first drug-conviction was in 2011 for possession of dangerous drugs to which you were sentenced to the drug addiction treatment centre.
I turn to consider sentence. In the present case, there are three kinds of drugs. The amount of drugs trafficked were as follows, 1.43 grammes of cocaine, traces of deschloro-N-ethyl-ketamine to which I will refer to hereinafter as N-Ketamine, 27.9 grammes of methamphetamine, and traces of methamphetamine.
In the case of Ho Ka Lok, HCCC 55/2020, the court heard expert opinion that N-Ketamine is approximately five times more potent than ketamine. In this case, as there are only traces of the drug N-Ketamine which are extremely nominal amounts, I shall ignore N-Ketamine for the purpose of calculating sentence.
The remaining drugs to which you shall be sentenced upon are the drugs of cocaine and ‘Ice’. In sentencing you, I shall adopt the combined and conversion approach. I shall use the base drug as ‘Ice’ and convert the cocaine to ‘Ice’. The tariff case for trafficking in cocaine is the well-known case of Lau Tak Ming. The band to which 1.43 grammes of cocaine falls is within that of 0 to 10 grammes which attracts a sentence of between 2 to 5 years’ imprisonment. For the quantity of 1.43 grammes of cocaine, it would attract a term of 2 years 3 months’ imprisonment.
By converting that to ‘Ice’, that would be a nominal quantity and I also propose to ignore that in sentencing the defendant.
The quantity of drugs remaining, therefore, for you the defendant to be sentenced upon is 27.9 grammes of methamphetamine hydrochloride, which is in other words ‘Ice’. The tariff case for trafficking in ‘Ice’ is again that of the well-known case of Tam Yi Chun. That quantity of 27.9 grammes of ‘Ice’ falls within the bracket of 10 to 70 grammes which attracts a sentence of between 7 to 11 years’ imprisonment.
Defendant, your role in this case was not only that of a storekeeper but a dealer of the drugs. Found in your home was a large amount of some 180 empty resealable plastic bags and two electronic scales. A substantial quantity of about 5,000 grammes of white powder and/or crystalline solid that did not contain any dangerous drugs was also found. The scales and plastic bags are equipment used in weighing, dividing, and packing the drugs.
The white powder that was not drugs shows that the powder was likely to have been used to lower the purity of the drug ‘Ice’. Traces were also found, traces were also found concealed inside what appeared to be American ginseng tea bags. This was what contained the small amount of ketamine.
You were in this case defendant, I consider to be more than an actual mere courier or storekeeper of drugs. Nevertheless, taking all these factors into account, you were perhaps selling these drugs, I would still consider to sentence you to a term of 8 years’ imprisonment for that quantity of 27.9 grammes of ‘Ice’ as the starting point.
In the present case, as Mr Wong rightly points out, there are aggravating features which call for an enhancement of the starting point.
The first is that you have previous similar convictions to trafficking in a dangerous drug. This is your fourth conviction for trafficking dangerous drugs. The authority for that, calling for an enhancement if the defendant has previous similar convictions, is that of the well-known case of Abdallah.
The second aggravating feature is that the present offence was committed whilst you were on bail in the case number HCCC 264. You were granted bail, as I am informed by Mr Wong, in October 2019 and the present case was committed approximately 8 months later in June 2020.
Although there was the presence of multiple drugs in this case, they were of insignificant quantities and I do not consider that an aggravating factor. For the two aggravating factors, I consider an enhancement of the starting point of 12 months to be appropriate.
There are no mitigating factors in this case and in this case, you should be sentenced to 9 years’ imprisonment.
On 31 December 2021, in HCCC 264/2020, you were sentenced to a total term of imprisonment of 17 years and 9 months’ imprisonment. I shall take into account that sentence you are now serving and take into account the principle of totality.
In making an overall assessment of the sentence to be imposed and to ensure this is not unduly or inappropriately crushing or oppressive sentence, I order 4 years of this sentence to run consecutive to HCCC 264/2020 and 5 years to run concurrent.