COURT: The defendant pleaded guilty in the Eastern Magistrates’ Court on 6 March 2023 to two charges of trafficking in dangerous drugs (Charges 1 and 2). He was committed for sentence to the Court of First Instance.
The 1st charge alleges that on 7 April 2021 outside Lee Yuen Dim Sum Restaurant, Tsuen Wan Centre at Tsuen King Circuit, Tsuen Wan, the defendant unlawfully trafficked in 109.8 grammes of crystalline solid containing 109.1 grammes of methamphetamine hydrochloride, 1.01 grammes of a solid containing 0.92 grammes of cocaine and 12.4 grammes of a solid containing 10.7 grammes of ketamine.
The 2nd charge alleges that between 4 April and 8 April 2021, both dates inclusive, at the Ground Floor, No. 65 Wai Tau Tsuen, Tai Wo, the defendant unlawfully trafficked in 715.82 grammes of crystalline solid containing 715.62 grammes of methamphetamine hydrochloride, 37 grammes of a solid containing 33.5 grammes of cocaine and 317.59 grammes of a solid containing 275.06 grammes of ketamine.
He come before me today for sentence, having confirmed his plea and his admission of the Summary of Facts.
The Facts
The Summary of Facts reveals that at around 11 pm on 7 April 2021, the defendant was intercepted by police officers conducting anti-narcotic operation outside Lee Yuen Dim Sum Restaurant at Tsuen King Circuit, Tsuen Wan. Upon search of the paper bag which the defendant was carrying at that time, the dangerous drugs that was the subject matter of Charge 1 were found.
Under caution at the scene, the defendant admitted to the police that he was delivering the dangerous drugs for the others as he could not find any job during the COVID pandemic. Defendant was arrested for the offence of trafficking in dangerous drugs.
After the defendant had been taken to the police station, he provided a key to the police during investigation and said it was the key to a dangerous drugs warehouse on the Ground Floor, No. 65, Wai Tau Tsuen, Tai Wo Service Road West, Tai Po and he was willing to take the police there.
At about 1:25 am on 8 April 2021, the police escorted the defendant to the warehouse. They used the key provided by the defendant to open the premises. Upon a house search, many suspected dangerous drugs which is the subject matter of Charge 2, an electronic scale, a digital scale, two bundle of transparent plastic bags and some packaging paraphernalia were seized.
Under caution at the scene, the defendant claimed that he was responsible to count and pack the drugs inside the warehouse. The police subsequently took a video-recorded interview with the defendant on 8 April 2021. Under caution, he stated inter alia that:
(a) He was working for a dangerous drugs trafficking syndicate.
(b) He would earn $2,000 to $3,000 each week for trafficking in the dangerous drugs.
(c) He was going to pass the dangerous drugs of Charge 1 to an unknown drug trafficker upon instruction of the syndicate.
(d) The dangerous drugs of Charge 1 were ‘Ice’, cocaine and ketamine from the warehouse.
(e) He was also instructed by the syndicate to count and pack the dangerous drugs in the warehouse.
(f) He had worked in the warehouse for two to three days. Every day, he worked between 5 pm to 9 pm.
(g) The subject of Charge 2 was ‘Ice’, cocaine and ketamine.
(h) The electronic scale, digital scale, transparent plastic bags and packaging paraphernalia seized from the warehouse had been used by him to count and pack the drugs.
The government laboratory analysed the seized drugs and confirmed the nature and quantity of the same as exactly particularised in both Charge 1 and 2.
Mitigation
The defendant is now 20 years of age with a clear record. He was born and raised in Hong Kong. He was a student before the arrest and he was educated up to the Diploma of Vocational Education.
In mitigation, Ms Joyce Wu, counsel for the defendant, informs the court that the defendant has been suffering from ADHD (Attention Deficit/Hyperactivity Disorder) since he was young and required daily medication. As the side effects of the medication was so great that affected his daily life, he stopped taking the medication but his performance at school further deteriorated. As he was required to repeat the study of Form 3 twice, the defendant decided to leave school and pursue a vocational education. However, this decision was strongly opposed by his parents and had caused lots of tension and disputes within the family.
Notwithstanding his parents’ strong objections, he enrolled onto a full-time course of Certificate in Vehicle Repair at the Vocational Training Council and tried to find a part-time job to support himself. However, due to the pandemic and economic downturn, he was unable to find any work.
One of his friends then introduced him to a job of packaging worker. It was not until after he had provided all of his personal details including his home address to the “employer” that he was told of the details of the work involved.
When the defendant realised that the job involved packaging of dangerous drugs, he immediately wanted to back out, but as the drug trafficking syndicate has his home address, the defendant was worried that if he did not do what the syndicate requested of him, the syndicate would cause nuisance to his family or that his family’s safety would be compromised. Without the proper consideration to the possible serious consequences of what he did, the defendant just followed the syndicate’s instructions and committed the present offences.
He made frank commissions to the police upon arrest and took the police to the warehouse, resulting in the discovery of the large quantity of dangerous drugs in relation to Charge 2. Because of his cooperation with the police which shows his genuine remorse, Ms Wu lamented the fact that the defendant is now facing an imprisonment of a starting point of over 20 years which is almost doubling the likely sentence of Charge 1.
No less than 7 letters have been submitted to me in mitigation by the defence. One is from the defendant himself in which he described how he regretted of committing the present offences due to his own immaturity and stupidity. He writes that he recognises the mistake he has made and now realises the seriousness of his conduct to which he has pleaded guilty and the undesirable effects of the mistakes that he would bring to the society. He expresses deep remorse and he is keen to reform and turn a new leaf. He expresses his wish to complete the DSE study and also to enrol to different practical courses while serving his time to become a skilled person in the society in the future.
The other letters are from the defendant’s parents who described him as a young man who is easily manipulated by the others and they all blame themselves for failing to maintain a close relationship and also supervision of the defendant. The teachers and classmates also wrote the rest of the letters. They all speak highly of the character of the defendant and they all expressed shock and are saddened to learn about the involvement of the defendant in the present offences. They all asked the court to pass a lenient sentence.
Sentencing Principles and Tariffs
In this case, the defendant pleaded guilty and was convicted on two trafficking charges. He was first arrested in Tsuen Wan on 7 April 2021 for possession of dangerous drugs for the purpose of trafficking. He later admitted to the police during the investigation that the drugs were all taken out from a warehouse in Tai Wo near Tai Po where he was instructed by the syndicate to count and pack the dangerous drugs for two to three days already before his arrest. He provided the key to the warehouse and in less than three hours after his arrest he already led the police to the location of the warehouse and seized the dangerous drugs in relation to Charge 2.
In such circumstances, I consider that a concurrent sentence in respect of both charges is appropriate. In HKSAR v CHONG Cho-kit, CACC 363/2005 (Unrep., 12 July 2006), the Court of Appeal said (in paragraph 14):
“It is only in respect of trafficking offences that arose from the same incident that the aggregated total amount of drugs would be taken for fixing the starting point. The rationale behind is obvious because it would be unfair, for example, to treat two lots of drugs, one lot found on the accused when he was stopped coming out of his room and the other lot found in his home when he was brought back to his home for a search immediately thereafter, as separate and distinct lots when considering sentence.”
Although the defendant was arrested in Tsuen Wan and the warehouse was located in Tai Wo, the prosecution does not seek to dispute the defendant’s claim that he was instructed to bring the dangerous drugs in Charge 1 from the warehouse to a trafficker in Tsuen Wan. The dangerous drugs in Charge 1 were therefore originated from the dangerous drugs seized in Charge 2. Therefore, it is only fair that the two lots of dangerous drugs should therefore be added together for fixing a global starting point for both charges.
Based on the facts of this case, I am satisfied that both Charge 1 and Charge 2 arose from the same course of criminal conduct and hence, I will agree with the submission by Ms Wu and impose a concurrent sentence.
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 circumstances were of far less importance than the sentencing principles of denunciation, deterrence and punishment.
The total narcotic contents of the dangerous drugs involved in this case for both Charge 1 and 2 are as follows. They are 824.72 grammes of ‘Ice’, 34.42 grammes of cocaine and lastly, 285.76 grammes of ketamine. This is simply by adding the quantities of those three drugs together in relation to both charges.
In sentencing, I shall follow the six steps approach as mentioned in Herry Jane Yusuph.
The first step is to assess the gravity of the offence, there are three different types of drugs involved, namely, methamphetamine hydrochloride commonly known as ‘Ice’, cocaine and ketamine.
‘Ice’
The sentencing guideline for trafficking in ‘Ice’ are found in R v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah [2009] 2 HKLRD 437. According to the sentencing guidelines in both cases, for quantity of 824.72 grammes of ‘Ice’, the defendant is in the band of 600 grammes and 1,200 grammes where the guideline starting point for traffickers after trial, subject to any enhancement, would be 20 to 23 years’ imprisonment.
Cocaine
Cocaine and heroin are equated for sentencing purposes and the tariffs are fixed for heroin in R v Lau Tak Ming [1990] 2 HKLRD 370, as modified by Abdallah which is also applied to cocaine.
According to the sentencing guidelines for the quantity of 34.42 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.
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 guideline for the quantity of 285.76 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.
The second step is to assess the defendant’s role and culpability based upon the evidence. In Herry Jane Yusuph at paragraph 59, the Court of Appeal said:
“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 the drugs on behalf of himself or someone else.”
Consequently, it would not be possible to properly apply the guidelines until the court takes the view of the role and culpability of the defendant in this case.
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 the least culpable, that is the courier or the storekeeper.
The facts of this case reveal that the defendant’s role in this case are not merely a courier or a storekeeper. By his own admission to the police, the defendant admitted to be also responsible for counting as well as packaging the dangerous drugs stored in the warehouse. As a consequence, this heightened his culpability or aggravated his offending. He should therefore be treated as actual trafficking and is in a more serious position than simply 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 a cocktail of drugs.
There are three means of checking the appropriateness of the overall starting point in the case of trafficking involving different types of dangerous drugs (see HKSAR v Chan Yuk Leong, CACC 318/2013).
Naturally, if I were to sentence the defendant on the individual approach by simply adding the notional starting point for each kinds of drugs will produce a sentence which no doubt will be too excessive and does not properly reflect the justice of the case.
To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves an upward adjustment from the starting point of a base drug.
In the present case, ketamine is obviously the least serious drug while ‘Ice’ and cocaine may be similar in terms of their potency, in this case, ‘Ice’ represents nearly 70% of the total quantity of the dangerous drugs, so I will therefore use ‘Ice’ as the basis of calculation to calculate the overall starting point.
According to the sentencing guideline for 824.72 grammes of ‘Ice’, the starting point is 21 years and 1.48 months’ imprisonment according to the calculation.
In determining the upward adjustment for the remaining 34.42 grammes of cocaine and 285.76 grammes of ketamine, I examine the overall starting point by checking it against the all three tests. Ms Wu has done the calculations. She has used the three tests as cross-checking and produced a result which is not disputed by the prosecution.
As a result, the absurdity test is 22 years 8.69 months, the conversion test is 21 years and 4.31 months when using the sentencing guideline for ‘Ice’ as the base. The ratio test produced a result of 20 years and 8.28 months’ imprisonment.
Having applied the three cross-check tests, I consider that a notional starting point of 21 years and 3 months would be appropriate. I note that the ratio test result is even less than that of the tariff for the quantity of ‘Ice’ alone in this case, which if accepted, will have the effect of ignoring the existence of cocaine and ketamine altogether and is therefore unrealistic.
In determining the appropriate overall starting point, I also take into account the role and culpability of the defendant as an actual trafficker by dealing in the dangerous drugs as opposed to be merely a courier or a storekeeper.
In the circumstances, I consider it fair to make an upward adjustment of 6 months’ imprisonment. Bringing the starting point to 21 years and 9 months’ imprisonment.
The fourth step requires me to consider whether there are aggravating factors which might require me to enhance the starting point. As already noted, the trafficking in this case involves three types of dangerous drugs.
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 for a wider market than the trafficker in only one kind of drug. More important is the effect on users of combination of dangerous drugs.
Because of the relatively small quantities of the cocaine and ketamine in comparison with ‘Ice’ in this case, I will only enhance the starting point by three months to 22 years’ imprisonment.
Fifthly, I am required to have regard to all the mitigating factors. As the Court of Appeal made it clear in Herry Jane Yusuph, in cases of trafficking, personal circumstances will count very little unless they are exceptional.
Apart from the defendant’s timely and early plea of guilty at the committal stage, the real mitigating factor in this case is obviously the defendant’s assistance to the authority by volunteering to provide the key and lead the police to the location of the warehouse where the bulk of the dangerous drugs were found and seized.
As pointed out by Ms Wu in her mitigation, without the cooperation and frank commission by the defendant, it is highly unlikely that the police would be able to locate the warehouse leading to the subsequent conviction of Charge 2. Mr Glen Kong, Senior Public Prosecutor appearing for the prosecution also confirmed the position.
Mr Kong also informed the court that there had been different decisions by the Court of Appeal in the past as to whether the defendant in such a situation should be given a further discount. According to his research, any additional discount even if given will only be in a region between 2% to 3%.
Ms Wu urged me to therefore give the benefit of the doubt to the defendant and exercise the discretion and give him an additional discount of about 3%. As the present case is a case in which the starting point is more than 20 years, after consideration I decided to give the discount. I consider that the extent for further discount of about 35 per cent is warranted in these circumstances and so reduce the overall starting point to a term of 14 years and 3 months’ imprisonment.
The sixth and final step was to stand back and look at the overall sentence in order to ensure that it is a fair, just, balanced sentence in all the circumstances of the offence and also to the offender. I shall ensure that the sentence is not a crushing one, but one that is fair, balanced, timely and just.
It is obvious that in the circumstances of this present case, the defendant, a young man of hitherto good character committed the present offence and he has been left astray by the unscrupulous trafficker.
The trafficker first recruited him as a normal packaging worker. On the other hand, the defendant was so timid and immature and was unable to distinguish between right and wrong and continued to engage in the trafficking in drugs for a couple of days even after he found out what he was dealing in actually dangerous drugs. No doubt he can and he should report the matter at once to the police, but he did not and he has only himself to blame for knowingly engaged himself in actual trafficking. And for this, he has to learn his lessons in the hard way.
I am of the view that in the special circumstances of the case, rehabilitation of him is also a matter of some importance which warrants perhaps greater emphasis when passing sentence.
Tailoring the sentence to individual circumstances of this young offender without undermining the sentencing principles relevant to trafficking offences and having regard to the authority cited in which the six-steps have been applied to lengthy sentences, I decide to exercise my discretion and the defendant’s sentence will be finally reduced by a further three months to 14 years’ imprisonment.
In my view, such a sentence is sufficiently punitive and at the same time send a clear message of denunciation and deterrence.
Now for Charge 1 in light of the quantity involved in this charge, I will use a starting point of 11 years and 5 months. After giving the usual one-third discount, for this charge you are to serve a sentence of 7 years and 7 months. For Charge 2, I will impose a sentence of 14 years’ imprisonment. The sentence on both charges to run concurrently.