COURT: The defendant was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. In gist, it is alleged that the defendant trafficked in dangerous drugs on 5 February 2021, at Room 3408, 34th Floor, Tower 1, Goodview Garden, 7 Hoi Chu Road, Castle Peak, New Territories, namely, 991.25 grammes of a crystalline solid containing 989.25 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, 118 grammes of a solid containing 105 grammes of cocaine and 989.29 grammes of a crystalline solid containing 804.03 grammes of ketamine.
The defendant pleaded guilty to the charge and admitted a set of Summary of Facts before the magistrate at the committal proceedings. She was committed to the Court of First Instance for sentence. Hence, she appeared before me and I adjourned the matter for investigation to be done in relation to the alleged assistance that she gave to the authorities.
Upon adjournment and upon the police investigation, it has been concluded that the alleged assistance said to be provided by the defendant is of no practical use. And the defendant has confirmed today that she will not rely on such alleged assistance as one of her mitigating factors.
Facts of the Case
The facts giving rise to this case are as follows. On 5 February 2021, at around 9.30 pm, the defendant was intercepted as she emerged from Room 3408 of the premises that I have mentioned (known as “the Room”). Whilst the defendant had keys which could open the metal grille to the Room, the defendant denied having knowledge of the passcode to unlock the electronic lock of the main door to the Room. The police therefore gained entry into the Room by force.
Upon searching the Room, a total of 93 packets of dangerous drugs were found, namely:
(1) Five plastic bags containing a total of 989.25 grammes of methamphetamine hydrochloride (‘Ice’);
(2) five plastic bags containing a total of 105 grammes of cocaine; and
(3) 83 plastic bags containing a solid containing 804.03 grammes of ketamine.
Inside the Room, a sealing machine, three electronic scales, a pair of scissors and a spoon were found. The rest of the Room was basically empty and was not furnished. Eight DNA samples of the defendant were lifted from a bottle and various cigarette butts found inside the Room.
Upon arrest and under caution, the defendant admitted to distributing the dangerous drugs in order to earn money to raise money for her family as she is a single parent.
At the time of the seizure, the total street value of the dangerous drugs seized inside the Room was to the tune of HK$1.3 million.
The Defendant’s Background
The defendant is now 44 years old. She was born in Guangxi, China and came to Hong Kong in 2013. She attained up to Secondary 2 education. Married in 2008, she got divorced in 2017 and lived with her two sons aged 12 and 17 respectively. According to her Antecedents Statement, the defendant had been unemployed before her arrest and she was on CSSA social security assistance. She has a clear record and it is said that she is not a drug addict.
Mitigation
In mitigation, it was submitted that the defendant was a mere storekeeper or courier as evidenced by the fact that she did not rent the Room. Nor did she have full access to the Room since she could not access the Room without her boss’ assistance in granting remote access. This is a point that I accept as submitted on the defendant’s behalf by Ms Wu.
Ms Wu also invited me to consider the circumstances under which the defendant committed the present offence. It was said that the defendant committed the offence due to severe financial difficulty in supporting her family’s expenses due to her son’s special educational needs and her own medical condition. Furthermore, the defendant frankly admitted to the offence at the first opportunity and she even accepted that she played a part in distributing the drugs in return for monetary reward.
Ms Wu highlighted the defendant’s background and submitted that the defendant’s lack of financial means is intricately linked to her reason behind committing the present offence in her role as a storekeeper or courier. Whilst suffering from genealogical conditions herself, the defendant is a single mother of two sons who both suffer from ADHD, thus requiring substantial care and attention from the defendant. Unable to acquire a full-time job, the defendant had no income and could only depend on CSSA each month.
The court has also been provided with certificates showing the efforts by the defendant whilst imprisoned, especially for her attendance and completion of bible studies courses. That, I am told, is indicative of the defendant’s remorse for her commission of the present offence. The court was further informed of the defendant’s work or plan to work inside prison as she was appointed as one of the teaching assistants in the sewing workshop while in remand. Through her hard work and efforts to rehabilitate, the defendant has demonstrated her remorse and determination to turn over a new leaf.
Having said all these, whilst the court has some sympathy for the circumstances and the predicament of the defendant, especially those pertaining to her sons (both suffering from ADHD) and her own condition that the court has just outlined, it is nevertheless well established that personal circumstances count for little in relation to an offence as serious as the present namely drug trafficking (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290).
Sentencing Tariffs and Principles
The courts of Hong Kong have consistently adopted a serious view in handling cases of drug trafficking, in particular for hard drugs, such as ‘Ice’ and cocaine. To reflect the serious view that the courts take of such activities, there have been devised tariffs, particularly applicable to those hard drugs and the tariffs applicable in relation to trafficking in ‘Ice’ and ketamine can be found in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and SJ v Hii Siew Cheng [2009] 1 HKLRD 1 respectively. And the tariff applicable to trafficking in cocaine is derived from R v Lau Tak Ming [1990] 2 HKLRD 370, itself a tariff case for heroin which has been confirmed to be also applicable for cocaine (see HKSAR v Abdallah [2009] 2 HKLRD 437).
According to the applicable sentencing tariffs in those cases, a quantity between 600 and 1,200 grammes of ‘Ice’ would attract a starting point of between 20 and 23 years’ imprisonment. A quantity between 50 and 200 grammes of cocaine would attract a starting point of between 8 and 12 years’ imprisonment whereas a quantity between 600 and 1,000 grammes of ketamine would attract a starting point of between 12 and 14 years’ imprisonment.
Where more than one drug is involved, the essence of the appropriate sentencing approach is that if the drugs are approximately similar in nature, then it would be fair and appropriate to use what is known as the “combined approach”, bearing in mind that there might necessarily have to be adjustments even if the combined approach is used to avoid absurdity.
I take the view that the present case is one where the combined approach should be adopted in calculating the sentence for the combination of drugs involved. Under that approach, the first step requires the determination of relevant starting points for each drug.
The sentencing bands have already been identified above and using that as the benchmark, the quantity of ‘Ice’ involved in the present case would require a starting point in pure mathematical term of 21 years and 11 months. For the quantity of cocaine involved, on a strict arithmetic calculation, the starting point is one of 9 years and 6 months. And for the quantity of ketamine involved, a starting point of 13 years is warranted.
As the quantity of ‘Ice’ involved in the present case is comparatively higher and given its similar potency as cocaine, I take the view that justice is best served by adopting the combined approach and adjusting upwards the starting point of 21 years and 11 months to one of 23 years. In accordance with the principles set out in HKSAR v Chan Yuk Leong, CACC 318/2013, I have crosschecked this starting point against the result of the absurdity test, the conversion test and the ratio test, which I shall elaborate below.
Absurdity Test
In accordance with the absurdity test, the starting point would be 23 years and 9 months.
Conversion Test
In accordance with the conversion test, if one were to convert all the drugs into ‘Ice’, the starting point would be 23 years. If one were to convert all the drugs into cocaine, the starting point would be 23 years and 2 months. If one were to convert all the drugs into ketamine, the starting point would be over 20 years.
Ratio Test
In accordance with the ratio test, the starting point produced would be 21 years and 2 months.
The absurdity test, conversion test and ratio test are a means to provide a crosscheck as to where the appropriate sentence lies. The ultimate objective is still to meet the object of the sentencing policies of the courts of Hong Kong to place emphasis on the need for deterrence in order to curb drug trafficking activities such as the present, whilst recognising that separate treatment of each drug by way of consecutive sentence may produce an unjust result.
In the circumstances of this case, I take the view that a starting point of 23 years, crosschecked against the result of the three tests that I have just mentioned, would produce a just outcome.
As to the role and culpability of the defendant, I accept Ms Wu’s submission that the defendant’s role was merely one of, or akin to, a courier or storekeeper. Hence, I will not enhance the sentence on the basis of the defendant’s role being higher than that of a courier or a storekeeper.
On the other hand, since there are three separate types of drugs involved in the present case and each of not insubstantial quantities, that is clearly an aggravating factor warranting an enhancement of sentence. Whilst I do not have evidence whether these drugs were intended to be sold together or consumed in combination by drug abusers which could in turn lead to a far more dangerous and potent concoction, the availability of more than one type of drugs must have enabled the defendant to reach a wider market (see Chan Yuk Leong at paragraphs 23 to 25, HKSAR v Wong Wang Hing [2023] HKCA 729 at paragraphs 10 to 11 and HKSAR v Husain Saddam [2018] HKCA 55 at paragraph 22).
Hence, I consider it necessary to reflect the seriousness of the offence by enhancing the starting point by 3 months to one of 23 years and 3 months.
Discount for Guilty Plea
Finally, I have taken into account all that were said on the defendant’s behalf, and apart from the defendant’s timely and early plea of guilty at the first opportunity, I find no exceptional mitigating factors in this case to further support a discount on sentence. Given the early guilty plea, the defendant is entitled to the full one-third discount in accordance with the sentencing principle enunciated in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. Hence, the overall sentence is reduced by one third to one of 15 years and 6 months.
Defendant, you are sentenced to 15 years and 6 months’ imprisonment.