COURT: Defendant is charged with one count of trafficking in dangerous drugs, namely, 869.94 grammes of a solid containing 695.41 grammes of ketamine, 72.99 grammes of a solid containing 46.61 grammes of cocaine and 17 grammes of a solid containing 10.7 grammes of methamphetamine hydrochloride commonly known as ‘Ice’.
The defendant pleaded guilty to the charge at the committal proceedings before the Magistrates’ Court on 11 April 2023 and admitted a set of facts read to him at those proceedings. He appears before me for sentence.
The facts giving rise to the case are as follows.
On the date in question, 25 April 2022, at around 1.50 am, police officers intercepted the defendant when he was spotted leaving a flat in K City, Kai Tak, Kowloon.
The defendant was brought back to the flat for a search. Upon search, the following dangerous drugs and related paraphernalia were found, namely:
(i) Four resealable plastic bags and four plastic containers containing ketamine;
(ii) Two resealable bags;
(iii) 33 smaller resealable bags and a plastic container containing cocaine;
(iv) A resealable bag containing ‘Ice’ and a resealable plastic bag containing ketamine and traces of ‘Ice’;
(v) Two electronic scales;
(vi) Five plastic bags containing a large number of resealable plastic bags and 14 fingerstalls.
The defendant was arrested for trafficking in dangerous drugs.
The total drugs seized from the flat were subsequently confirmed to be those as mentioned, namely, in terms of narcotic contents 695.41 grammes of ketamine, 46.61 grammes of cocaine and 10.7 grammes of ‘Ice’.
The total estimated street value of the drugs at the time of the offence was more than HK$516,000.
The defendant admitted under caution that the drugs seized were cocaine, ketamine and ‘pork’, which he was helping someone package and deliver in return for $8,000 as he was out of work due to the pandemic.
In a subsequent video-recorded interview, the defendant admitted under caution that he had planned to distribute the drugs on behalf of his friend “Man Jai” who had passed him the drugs about a week ago.
In this regard, it has now been clarified by counsel appearing for the defendant that the admission made by the defendant in the video-recorded interview, when read in context, meant that he had returned the drugs, or he had planned to return the drugs to Man Jai as opposed to distributing the drugs to others on behalf of Man Jai.
Defendant’s Background
Defendant is now 37 years old. He was born in Hong Kong and received education up to Form 3 level. He married in 2008 and had a son who is now aged 15 and studying in Form 3. He was later divorced and had been residing with his current girlfriend since 2017. The defendant used to work as a part-time transportation worker and part-time valet driver for a period of three years respectively. At the time of the offence, he was out of job. His father passed away 20 years ago and his mother lives alone. Defendant said he supports his mother financially each month. It is admitted on behalf of the defendant that he was a drug user at the time of the offence.
Indeed the defendant has a string of previous convictions, five drug-related offences in total, including three counts of possession of dangerous drugs and four counts of trafficking in dangerous drugs. These offences span from 2004 to 2015.
His most recent conviction for the offence of trafficking in dangerous drugs was in March 2015, involving two offences of trafficking in dangerous drugs for which he was sentenced to 3 years’ imprisonment and 18 months’ imprisonment respectively. Four months of the latter sentence was ordered to run consecutively to the first, hence he was imprisoned for a term of 3 years and 4 months’ imprisonment. He was last discharged from gaol on 20 May 2017. He committed the present offence in 2022.
Mitigation
In mitigation, it was submitted on behalf of the defendant that he was a mere storekeeper or courier. He made admission to the police at the scene that he had received the drugs from his friend, Man Jai. He subsequently admitted in his video-recorded interview that he would package and return those drugs to Man Jai in return for $8,000. He said he did so because he was, at the time, out of work because of the pandemic.
Three mitigation letters have also been placed before me. One from the defendant himself, the other from his mother, and a further one from his ex-employer. The court has considered all three letters of mitigation in which the defendant’s background and his personal circumstances were outlined. However, as the authorities firmly state, personal circumstances do not play much as mitigation for offences as serious as trafficking in dangerous drugs.
In mitigation, it has also been brought to my attention that the defendant was convicted previously of three other offences in DCCC 892/2022 for which he has been sentenced to a total of 36 months’ imprisonment.
Mr Keung asked me to take into account the sentences imposed on the defendant in relation to that case and asked me to consider totality when imposing his sentence for the present case.
The court has been apprised of the reasons for sentence in respect of that District Court case after the last hearing. In that case, the three charges involved are for possession of offensive weapons, possession of arms without a licence, and being a member of a triad society. Her Honour Judge Lily Wong sentenced the defendant for those three offences to a term of 36 months’ imprisonment in total.
Sentencing considerations for the present case
The courts of Hong Kong have taken a serious view of cases involving drug trafficking particularly in relation to hard drugs such as those involved in the present case.
In respect of trafficking in ‘Ice’, the applicable tariff is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For quantities of between 10 and 70 grammes of ‘Ice’, the appropriate starting point would be one of between 7 and 11 years’ imprisonment.
For trafficking in cocaine, in respect of quantities between 10 and 50 grammes of cocaine, a starting point of 5 to 8 years’ imprisonment is appropriate, see R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437.
For trafficking in ketamine, the applicable tariff is set out in SJ v Hii Siew Cheng [2009] 1 HKLRD 1. For quantities between 600 and 1,000 grammes of ketamine, a starting point of between 12 and 14 years’ imprisonment is appropriate.
Where there are more than one drugs involved as in the present case, the applicable approach would be the combined approach. There are three types of dangerous drugs involved in this case and the first set requires the court to determine the relevant starting point for each drug.
In accordance with the sentencing bands that have just been identified above. For the quantity of drugs involved, the starting points on a straight arithmetic calculation are 7 years and 1 month for ‘Ice’, 7 years and 9 months for cocaine, and 12 years and 6 months for ketamine.
The proper methodology for the combined approach has been summarised by the Court of Appeal in HKSAR v Islam Majharul [2020] 3 HKLRD 146 at paragraph 27 of that judgment. In that paragraph, the Court of Appeal set out seven steps.
Insofar as the first step of determining the base drug to be used to calculate the starting point is concerned, the Court of Appeal had this to say at paragraph 24 of the judgment:
“The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious) drugs. In carrying out this task, the sentencing court should take a common sense approach in determining which drug is to be the base drug in order to calculate the starting point. There may be cases where the more or most serious drug is of such a small quantity that it would be unrealistic to use it as the base drug. As stated, it will be a matter of common sense.”
Given the quantities of the different drugs involved in this case and adopting a common sense approach, I consider it appropriate to adopt ketamine as the base drug for calculating the starting point of the drugs involved in the present case.
In this regard, I note that the amount of ‘Ice’ involved in the present case is merely 1.53 per cent of the whole amount of drugs involved. The largest quantity of drugs seized was ketamine.
Furthermore, the starting point for ‘Ice’ seized in this case is only 7 years and 1 month which is significantly lower than the starting point for ketamine which is 12 years and 6 months.
Thus, taking into account the substantial quantity of ketamine involved and the serious potency of the other drugs involved, namely, ‘Ice’ and cocaine, I take the view that the justice of this case is best served by adopting the combined approach using ketamine as the base drug and adjusting upward the starting point for ketamine of 12 years and 6 months to one of 13 years and 2 months’ imprisonment for the whole lot of drugs, in other words, by adding 8 months to the starting point for ketamine. I have crosschecked this starting point against the result of the absurdity test, conversion test, and ratio test, which I set out below.
Absurdity test
Starting point, 20 years and 9 months.
Conversion test
Converting all the drugs into ‘Ice’, starting point, 13 years; converting all the drugs into cocaine, starting point, 13 years and 9 months; converting all the drugs into ketamine, starting point, 14 years and 1 month.
Ratio test
Starting point of 13 years and 4 months.
The starting point adopted for this case
The absurdity test, conversion test, and ratio test are just a means to the ultimate objective of providing a crosscheck as to where the appropriate sentence lies. The court is not required to adopt the most favourable result in accordance of those tests as the basis for a starting point.
The ultimate objective when passing a sentence for such offence involving multiple drugs is to achieve deterrence of such drug trafficking activities in Hong Kong. This objective must, at the same time, recognise that treating each drug separately may sometimes result in an unjust outcome.
In the circumstances of the present case, I find that a starting point of 13 years and 2 months, crosschecked against the result of the three tests mentioned, would be just and appropriate.
Aggravating Factors
The next step is to look at whether there are any aggravating factors present in this case. There are a number of aggravating factors present as accepted by Mr Keung.
Insofar as the defendant’s involvement, his role and culpability is concerned, I have considered Mr Keung’s submission that the defendant was merely a courier and/or a storekeeper, notwithstanding that the defendant’s role as described in the Summary of Facts involves, according to his admission, planning to distribute the drugs for his friend, Man Jai. I take the view that his involvement upon clarification by Mr Keung is one more akin to a mere courier and storekeeper. Hence, I am prepared not to enhance his sentence in light of his role as clarified.
On the other hand, in light of the defendant’s long history of repeated offending in drug offences, there is a need for me to enhance his sentence. For this aggravating factor, I would enhance the sentence by a further 3 months’ imprisonment. Thus, bringing the starting point before discount for plea of guilty to one of 13 years and 5 months.
Given that this case involves more than one type of drugs, in fact, three types of serious, prevalent drugs, this constitutes another aggravating factor. I would enhance the sentence by a further 3 months for this aggravating factor. Bringing the sentence to one of 13 years and 8 months’ imprisonment.
Finally, it has been brought to my attention that the defendant had committed the present offence whilst on police bail for two other cases, namely, one case concerning wounding and criminal damage and another case concerning unlawful assembly. I have been informed that no prosecution has been instigated against the defendant for these two cases for want of evidence. Be that as it may, it remains a fact that the defendant was on police bail for those two cases when he committed the present offence knowingly.
I am informed that prior to this sentencing hearing, the defendant has not had any of his sentences enhanced for this factor in the other District Court case that I have mentioned. Hence, it is appropriate for me to take that aggravation into account in the present case.
It is trite that committing an offence whilst on bail for other offences is a serious aggravating factor because it involves serious disregard for the law and the evident persistence of reoffending, see HKSAR v Wong Yun Fat [2017] 4 HKLRD 59. In that particular case, the Court of Appeal considered it appropriate to enhance the sentence of a trafficker who committed the offence whilst on bail for another offence of possession by 6 months.
Given all the circumstances in this case, I consider it appropriate to enhance the sentence for a further 6 months, bringing the sentence to one of 14 years 2 months.
I have taken into account the aggregation of these enhancements and have ensured that it does not result in an oppressive and overloaded sentence.
Mitigating Factors
Next I must consider any mitigating factors. In my opinion, the only real mitigating factor that is applicable is the defendant’s early plea of guilty. For which he is entitled to the full one-third discount. Hence, after deduction, the sentence will be one of 9 years and 5 months’ imprisonment.
The last step requires me to step back and consider the totality of sentence to make sure it is just and fair. As mentioned above, the defendant has been sentenced for three other separate offences in another District Court case. Having considered the facts giving rise to those three other offences in that other case, in particular, the overlap of facts pertaining to that case as well as ours. In the sense that the offences arose out of the same operation.
I consider it appropriate to order part of the sentence that I am to impose on this defendant in this case to be served concurrently with the sentences imposed on that District Court case in order to give due regard to the totality principle, see HKSAR v Ngai Yiu Ching [2011] 5 HLKRD 690.
In these circumstances, I would order 24 months of the sentence for this trafficking offence to be served concurrently with the overall sentence of 36 months imposed on him in the District Court case. In effect, the aggregate sentence for both this case and the District Court case would be a total of 10 years and 5 months’ imprisonment.
Hence, defendant you are hereby sentenced to 9 years and 5 months’ imprisonment for this case with 24 months of the sentence served concurrently with the sentence in DCCC 892/2022.