COURT: Defendant, on 24 July 2023, you pleaded guilty to two charges before a magistrate sitting at the Eastern Magistracy. The 1st charge you admitted to was one of trafficking in dangerous drugs. You admitted that on 23 June 2021, outside Ground Floor, T Plus, No. 2 Tsing Min Path, Tuen Mun, you unlawfully trafficked in 248 grammes of a powder containing 215 grammes of ketamine and 47.8 grammes of a solid containing 45.7 grammes of cocaine. In respect of the 2nd charge, you admitted that on divers dates between 1 June 2021 and 23 June 2021, both dates inclusive, on an occasion other than that referred to in the 1st count, you conspired together and with other persons unknown, to unlawfully traffic in dangerous drugs, namely ketamine and cocaine.
You admitted the Summary of Facts in support of these two charges and they are as follows. Customs officers were on an anti-narcotics operation on 23 June 2021, within the vicinity of Tsing Min Path, Tuen Mun, at about 2006 hours, they spotted you outside the entrance of the Ground Floor, T Plus, No. 2 Tsing Min Path, Tuen Mun. You were intercepted and a search was conducted upon you.
Inside the tote bag you were carrying, the drugs as quantified in the 1st charge were found. You were arrested and cautioned and under caution, you said the white powder was given to you by an unknown person. You called the white powder as “soft drinks”, which is a kind of dangerous drugs. You were packing the dangerous drugs for others to earn a living. You would randomly find a place to drop the dangerous drugs and you had no idea who would come to collect it.
Prior to your interception, you were on the way to Room 802 of T Plus. You were then escorted to Room 802 for a search. You provided the password of the digital door to Room 802. Upon search of Room 802, the following items were found: eight electronic scales; one tray; numerous resealable plastic bags, one impulse sealer; a paper with handwriting on it; $3,000 cash and three mobile phones.
You were further cautioned and under caution, you said you would be paid $800 as a reward after completion of each job. You admitted the packaging paraphernalia found in Room 802 were for drug packaging. Someone would instruct you at the time to collect and deliver the drugs. You had borrowed $3,000 cash from someone.
In a video-recorded interview conducted with you, you stated inter alia that a male named Fei Keung, who you had met two months ago through an ex-colleague, referred the job to you. You were indebted to the tune of about $160,000 due to gambling and you had planned to repay $5,000 to $10,000 per week by doing the job. Your job was to weigh the drugs with the scales, repack them according to instructions and you were rewarded $800 each time, that included the repacking and distributing of the drugs.
You were told that the dangerous drugs you were dealing with was “soft drinks” which means cocaine and “perfume” which means ketamine. Room 802 was rented by someone as a storehouse and you had moved into Room 802. You admitted that after completing each job, someone would deposit $800 cash into your bank account.
You admitted since early June 2021, you had repackaged and distributed dangerous drugs several times in which you had received two remunerations respectively in the amount of $19,000 and $5,800.
The handwritten paper seized written by you was for calculation, it recorded the dangerous drugs you had distributed last time.
The estimated street value of the ketamine seized in relation to Count 1 was $140,864 and the cocaine seized in relation to Count 1, was approximately $56,202.80. Thus the total street value of all the drugs in Count 1 was $197,076.80.
Defendant, you are now 28 years of age. You are single and have a clear record. You lived alone in Tuen Mun and had received Form 3 level education. Your counsel, Mr Charles Chiu, has informed this court that previously you were employed as a construction worker in early 2020 to February 2021, earning approximately $20,000 per month. However, in early 2021, you were made redundant due to the pandemic. At the same time, you had also incurred some $160,000 in gambling debts. The reason why you got involved in this drug trafficking was to earn quick money so as to repay your gambling debts.
Mr Chiu has informed me that you are extremely remorseful for your misdeeds. In relation to Charge 2, the conspiracy charge, in fact you had voluntarily informed the police about your dealings in dangerous drugs you had with other persons and the earlier remuneration you had received was what you had stated in your record of interview which was the total sum of $24,800.
I have also received a letter from your parents and they have suggested that the present offences are traced back to your addiction to gambling under your peer influence. They are of course saddened by your acts and fortunately they believe you have realised your misdeeds. They are here and are here to support you throughout your term and reintegrate you into society. They have asked the court to consider your deep regret and impose as lenient a sentence as possible on you.
In regard to sentencing you, as Mr Chiu has rightly referred to in his mitigation, for trafficking in dangerous drugs, there are clear guideline cases for this court to follow. In relation to Count 1, that is a trafficking in dangerous drugs charge, in that charge you were trafficking in two types of drugs. The first type was that of ketamine and the other was cocaine. For the quantity of ketamine you were trafficking in, it was 215 grammes, the guideline case for trafficking in ketamine is that of Hii Siew Cheng. For that amount of ketamine, that would fall within the band of 50 to 300 grammes which would attract a sentence of 6 to 9 years’ imprisonment.
The other kind of drug you were trafficking in was cocaine. The leading case for trafficking cocaine is Lau Tak Ming and for the quantity of 45.7 grammes of cocaine, that would fall within the band of 10 to 50 grammes which would attract a sentence of 5 to 8 years’ imprisonment.
Defendant, I accept that in this case, you were a courier, storekeeper, packager and deliverer of these drugs. For Charge 1, I intend to adopt the combined approach and conversion approach, converting all the drugs into cocaine.
Turning first to the quantity of ketamine. There was 215 grammes of ketamine. That would attract a sentence of 7 years and 9 months’ imprisonment after trial. In converting that into cocaine, that would be approximately 48 grammes of cocaine. Adding that to the amount of 45.7 grammes of cocaine which was found, that would make a quantity of 93.7 grammes. 93.7 grammes would fall within the band of 50 grammes to 200 grammes which is 8 to 12 years’ imprisonment in Lau Tak Ming. For that quantity of drugs, I would have taken a starting point of 9 years’ imprisonment.
In this case, in regard to whether there are any aggravating features, there is an aggravating feature in that there are two types of drugs involved. Following Islam Majharul [2020] 3 HKLRD 146, I enhance the starting point by 3 months’ imprisonment, that would make a notional sentence starting point of 9 years and 3 months’ imprisonment.
Your strongest mitigating factor is your plea of guilty and for that you shall be awarded the full one-third discount and you will be sentenced on Charge 1 to 6 years and 2 months’ imprisonment.
I turn now to Charge 2. There is no dispute that since early June 2021, this is in respect to the conspiracy charge, you received two remunerations totalling $24,800. You had admitted that each delivery you had completed, you would receive $800. Therefore, that would mean that you had made 31 deliveries in relation to Count 2, that is 24,800 divided by 800.
In regard to conspiracy to traffic in dangerous drugs, the case I would refer to approach the sentence is that of HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799. At paragraph 33 of the judgment, the Court of Appeal said this:
“As the court in Chan Kam Loi explained, where a conspiracy to traffic in an unspecified quantity of dangerous drugs is concerned, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts in the case. Those facts, and the inferences and assumptions from which they derive, will vary from case to case. We would add that, unless the facts which give rise to the inferences and assumptions are clear-cut, they will inevitably lean in favour of the defence.”
In this case, Mr Chiu had submitted in his written submissions that for 1 gramme of cocaine plus 1 gramme of ketamine, the street value was $1,744, which is 1,116 for cocaine plus $568 for ketamine, and that would be more than two times your reward for each delivery.
Mr Isaac Guan for the prosecution and Mr Charles Chiu for the defendant have in this case agreed that for the conspiracy to traffic charge, that the defendant on the facts and inferences to be drawn in this case before this court on each delivery, the defendant would be delivering 2.5 grammes of ketamine and 2.5 grammes of cocaine. And for these deliveries, this quantity refers to the purity of ketamine and cocaine. Therefore, as the defendant had made 31 previous deliveries, that would be 2.5 grammes of ketamine times 31 which is 77.5 grammes of ketamine and 2.5 grammes of cocaine times 31 which is 77.5 grammes of cocaine.
For the purposes of sentencing in respect of Charge 2, I will also take a combined approach and convert all the drugs into cocaine. For 77.5 grammes of ketamine, that would fall within the bracket of 50 to 300 grammes band of which would attract a sentence of 6 to 9 years’ imprisonment. For that amount of ketamine, 77.5 grammes, I would have taken a starting point of 6 years and 3 months’ imprisonment. That would equate to approximately 28 grammes of cocaine. Adding 28 grammes of cocaine to 77.5 grammes of cocaine, that would equal to 105 grammes of cocaine and that would fall within the band between 50 to 200 grammes which would attract a sentence of between 8 to 12 years’ imprisonment.
For that amount of cocaine, defendant, I would have taken a starting point of 9 years and 3 months’ imprisonment. I accept Mr Chiu’s submission in that had you not revealed your conspiracy to the police, they would not have known of your previous dealings in drugs.
Also in following the case in Tsang Ka Wing at paragraph 48, where the Court of Appeal accepted that a discount of slightly above one-third was appropriate where a defendant had admitted to the police that he had trafficked in drugs and the police would not have known of the conspiracy had the defendant not admitted it. In the circumstances, I grant you a 38.5 per cent discount and for Charge 2, you shall be sentenced to 5 years and 8 months’ imprisonment.
Now, I must look at the overall sentence and the principle of totality in respect of Charge 1 and 2. So for Charge 1 and Charge 2, in respect of the quantity of ketamine, in Charge 1 there was 215 grammes and Charge 2, 77.5 grammes of ketamine which is equal to 295.5 grammes of ketamine. For Charge 1, there were 45.7 grammes of cocaine and Charge 2, 77.5 grammes of cocaine which makes a total of 123.4 grammes of cocaine.
As I mentioned, I convert the ketamine into cocaine. For 292.5 grammes of ketamine as a starting point after trial, that would attract a sentence of 8 years and 9 months’ imprisonment which would equate to approximately 83 grammes of cocaine. Adding 83 grammes to 123.4 grammes of cocaine would equal to 206 grammes of cocaine. That would be the total to which drugs you were trafficking in in Charge 1 and Charge 2. Taking that amount and the sentence for that amount of cocaine after trial would be one of 12 years’ imprisonment.
Giving you full credit for your guilty plea at the earliest opportunity, that term will be reduced to 8 years’ imprisonment to which you shall serve. To reflect the 8 years’ imprisonment, I shall order 1 year and 8 months to run consecutive to Count 2, which makes a total term of 8 years’ imprisonment.