COURT: The defendant has pleaded guilty in the Magistrates’ Court to one count of wilfully obstructing a police officer in the due execution of his duty, namely, Detective Sergeant 46765, and one count of trafficking in dangerous drugs, trafficking in 143.3 grammes of a solid containing 117.8 grammes of ketamine and 100.74 grammes of a solid containing 87.57 grammes of cocaine and he was committed for sentence and today confirms his plea and agreement to the Summary of Facts.
The Summary of Facts
At about 6.50 in the evening, on 9 August 2021, police officers mounted an anti-narcotics operation at Block 50, City One Sha Tin, and put Room G of the 18th Floor under observation. At the material times, the defendant was the sole tenant of Room G.
At around 9.12 pm, the defendant was seen leaving the room and heading towards the lift lobby. When he reached the ground floor, he was seen approach a private vehicle parked on the road and then carrying a carton box back to Block 50. He went back upstairs and at the lift lobby of the 18th floor he was intercepted. When asked what was in the box, he tore it apart and claimed it contained bottled water. The defendant was asked to produce his Hong Kong identity card and he claimed it was inside the premises. A body search was requested but ignored.
The defendant moved away from the police officer and put his right hand into his right pocket. That officer grabbed hold of his hand and told him not to move. The defendant barged the officer out of the way, took out a bunch of keys from his pocket, and threw them out from a window. The keys got trapped in the frame but the defendant reached his hand down and pushed the keys out of the window. The defendant was subdued and handcuffed at that point. The keys were retrieved from the 2nd floor podium and the police were able to gain access to the defendant’s premises. His premises were searched.
Inside the premises, the police found the ketamine and cocaine of Charge 2 and some paraphernalia associated with packaging dangerous drugs for the purposes of selling it on. That included several electronic scales, scissors, spoons, and resealable transparent plastic bags. The police also found $134,000 in cash.
It was an admitted fact that the estimated street value at that time of all the ketamine was $106,799 and that the cocaine was about $115,650 if in powder form or $147,483 if converted into crack cocaine.
Mitigation
I have heard full mitigation from Mr Lo, he has written and said all he can say on behalf of the defendant. The defendant is now 24 years old. He was born in Hong Kong and educated up to Form 4 level. At the time of his arrest, he was unemployed. He was a man with a clear record. I have received a mitigation letter written by the defendant. He is remorseful and regrets committing these offences. He has learnt his lesson and will turn over a new leaf after he has served this sentence. He is sorry to have disappointed his parents.
The defendant’s best mitigation is his plea of guilty at the earliest opportunity.
Sentencing
Wilfully obstructing a police officer in the due execution of his duty is and can be a serious offence. The charge under section 36(b) of the Offences against the Person Ordinance will attract an immediate custodial sentence. However, I have taken into account the facts of the obstruction and I accept it was a desperate act of a man knowing he was about to be arrested for trafficking a significant amount of drugs. He was delaying the inevitable. No officer was injured as a result of his obstruction.
I will take a starting point of 18 months’ imprisonment which will be reduced by 6 months or a third to take into account the defendant’s plea at the earliest opportunity. This will result in a sentence of 12 months’ imprisonment for Charge 1.
I turn to Charge 2. I have considered the approach to the sentencing of trafficking dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority. In this case, I accept and I am satisfied that the defendant was on the evidence before me, a storekeeper, therefore his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved.
I have considered whether to take into account the fact that there are two types of drugs involved here which can be considered an aggravating factor, which may mean an enhancement of sentence. However, I have looked at the quantity of each type of drug as well as the packaging and his role as a storekeeper. I will not, under those circumstances, consider this an aggravating factor.
I agree that the combined approach in sentencing is preferred. Here we have two types of drugs, a cocktail of drugs. In such a situation, a combined approach will usually be correct, preferred and produces the more realistic and fair sentence. In the combined approach, I will look at the overall quantity of drugs rather than individual parcels and types. This is opposed to the individual approach of calculating the tariff for each type of drug based on the quantity and adding the tariffs together.
I have been urged to adopt the approach of the conversion rate whereby I will take a starting single tariff for one of the types of drugs and here it will be cocaine as its potency is significantly more than the ketamine as is the starting point mathematically.
The tariffs for the drug cocaine follows the tariff for trafficking in heroin, HKSAR v Pedro Nel Rojas [1994] 1 HKC 342. For the present purposes, the tariffs in HKSAR v Lau Tak Ming [1990] 2 HKLR 370 says that trafficking in between 50 to 200 grammes would attract a sentence of between 8 to 12 years’ imprisonment after trial. In the present case, for the 87.57 grammes of cocaine, after trial that would in itself attract a sentence of 9 years’ imprisonment.
The tariff for the drug ketamine are set out in the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In that case, it was held that the sentence for trafficking between 50 to 300 grammes is 6 to 9 years’ imprisonment after trial. Here we have 117.8 grammes of ketamine. After trial, that would in itself attract a sentence of 6 years and 10 months’ imprisonment. However, in converting that amount of ketamine to cocaine, that would be equivalent to 34.18 grammes.
In adding that converted amount of 34.18 grammes to the 87.57 grammes of cocaine, this would equal 121.75 grammes of cocaine. Applying the tariffs for cocaine as I have set out above, the starting point would therefore mathematically be 9 years and 11 months’ imprisonment.
As I have said above, the methodology of this combined approach is to first calculate the applicable sentence for the most potent and more serious drug, here cocaine, and then make an upward adjustment to take into account the quantity of ketamine.
I have considered the three means of cross-checking whether the sentence would be manifestly excessive. I have considered the absurdity test, the ratio test, and the conversion test or the combined approach. Counsel agreed that this conversion test or combined approach is the most favourable starting point for the defendant in the circumstances.
The defendant pleaded guilty at the earliest opportunity and he is entitled to a one-third discount. I have also taken into consideration the six steps of the Herry Jane Yusuph authority.
After considering mitigation and considering the six steps of that authority as well as for the purposes of applying a discount of one-third, I will take a starting point of 9 years and 9 months for Charge 2. After the applicable discount is applied to that starting point, I reduce it to a sentence of 6 years and 6 months for Charge 2.
After considering the totality principle and the facts of the case, I will order that the sentences for both Charges 1 and 2 be served concurrently. Accordingly, the defendant is therefore sentenced to a total of 6 years and 6 months’ imprisonment.