COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and was committed before me for sentence.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, personal background of the defendant and mitigation put forward on his behalf by learned defence counsel.
I have also had regard to the sentencing approach as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph, CACC 93/2019, and HKSAR v Islam S M Majharul, CACC 67/2019.
The facts of the case may be summarised as follows. On 13 April 2022, police officers stopped the defendant when he was coming out from a residential flat holding a black plastic bag and took him back to the flat.
At that time there were two men and one woman inside. The officer checked the black bag the defendant was holding and found four plastic bags inside. The bags contained a total of 294 grammes of a solid containing 123.3 grammes of ketamine.
Upon arrest, under caution, the defendant said he was intending to take the “K” out for sale. When officers then searched the flat, more dangerous drugs were found on a table inside the living room, together with substances which were not dangerous drugs. The dangerous drugs then found were:
(1) 66.6 grammes of a solid containing 26.9 grammes of ketamine, put in a plastic bag; and
(2) a total of 34.2 grammes of a crystalline solid containing 33.6 grammes of drugs commonly known as ‘Ice’, put inside two plastic bags.
In relation to this batch of drugs, the defendant said under caution that some of the drugs were for self-consumption and some were for selling.
Subsequently, the defendant attended two video-recorded interviews and made further statements under caution. The statements which the defendant made in the first interview included the followings:
(1) He bought the drugs on a day after Chinese New Year, took the drugs back to the flat and weighed and packed them into plastic bags.
(2) At the material time, he intended to take the drugs out for sale, maybe at the price of $200.
(3) The flat was rented by his girlfriend. It was for operation of a hair salon, but business suspended as a result of the pandemic.
(4) As they could not afford the expenses, he intended to make some money.
(5) He had not been able to sell successfully any of the drugs he bought.
(6) He consumed ‘Ice’ and cannabis but he did not take ‘Ice’ frequently; and
(7) he spent a few hundred to $1,000 per week for 1 to 2 grammes of cannabis.
In the second interview, the statements the defendant made included the followings:
(1) The ‘Ice’ was for his own consumption.
(2) As for the ketamine, he was planning to sell to his friends but nobody responded. So he took them out to the park where he bought the drug to see if anyone would buy it from him.
(3) After he had bought the drugs around late February or early March, he repackaged the drugs all by himself.
(4) He bought the ketamine first and later the ‘Ice’.
(5) This was the first time he sell drugs.
(6) The bottle with straw in the flat was for consuming ‘Ice’.
(7) He smoked ‘Ice’ by burning it with fire like smoking a cigarette.
(8) The measuring cup and spoon were used to measure ketamine; and
(9) the electronic scales were for weighing the drugs.
I was told that the defendant is 43 years old. At the time of arrest, he was a construction worker, specialising in kitchen marble and floor tiling. He is single and had been living with his mother in a public housing flat.
He has criminal convictions related to dangerous drugs. Between 2007 and 2015, he was convicted four times for possession of dangerous drugs. In 2018, he was convicted for trafficking in dangerous drugs and was sentenced to a short imprisonment term.
In mitigation, learned counsel for the defence, Mr Charles Chiu, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity. Mr Chiu informed the court that the pandemic had greatly affected the business of the defendant and his girlfriend. It was in the circumstances of grave financial stress that the defendant was lured into engaging in this unlawful exercise. He said that the defendant had been unable to sell any of the drugs.
Mr Chiu also asserted that some of the ‘Ice’ was intended by the defendant for the own consumption of the defendant. The defendant said about 5 to 6 grammes of ‘Ice’ was intended for that purpose.
In consideration of the sentence, having regard to the circumstances of the present case, I see no reason to depart from the tariff for each type of the drugs. I consider the sentence on the basis of the own admission of the defendant that he was the sole person involved in this operation.
For trafficking in ‘Ice’, according to HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, if the narcotic content is 10 to 70 grammes, an imprisonment term of 7 to 11 years should be considered.
For trafficking in ketamine, according to SJ v Hii Siew Cheng [2009] 1 HKLRD 1, if the narcotic content is 50 to 300 grammes, an imprisonment term of 6 to 9 years’ should be considered.
As two types of drugs were involved, in consideration, I follow the approach as stated by the Court of Appeal in Islam S M Majharul. The quantity of ketamine was more significant, but its potency was less than ‘Ice’. There were 150 grammes of ketamine. It by itself attracts a starting point of about 7 years and 2 months. The ‘Ice’ was of a smaller quantity of 33.6 grammes, but this quantity by itself attracts a higher starting point of 8½ years.
In my judgment, it is appropriate to take ‘Ice’ as the base drug, though in the consideration process I have tested the result by treating ketamine as the base drug as well.
Bearing these in mind, I adopt the combined approach and check whether the notional sentence after trial to adopt is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test, having regard to Majharul.
In consideration, I also bear in mind that trafficking in different types of drugs presented two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs.
The impact of these aggravating features was, in the present case, substantial in the light of the variety of drugs involved. With reference to the quantity of the two types of drugs, each singly attracts a substantial imprisonment term. In the circumstances of the present case, I am of the view that the sentence should be enhanced by about 3 months for this factor.
Further, I have considered whether the sentence should be enhanced since it was the second time the defendant committed the offence of trafficking, and am of the view that it is not necessary in the circumstances of the present case. Taking into account all the relevant circumstances, I adopt 9½ years as the notional sentence after trial.
On behalf of the defendant, Mr Chiu asserted that part of the ‘Ice’ seized was for the defendant’s own consumption. Understandably, it is not easy to quantify the proportion for this purpose. The assertion is that about 5 to 6 grammes would be intended for this purpose in the several days to come if the defendant was not arrested.
In consideration of this matter, I have had regard to the Court of Appeal decision of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and HKSAR v Tam Ling Yuen, CACC 159/2015.
I note that in the Summary of Facts admitted by the defendant, it is stated that the defendant now admits and accepts that all the dangerous drugs seized were for the purpose of unlawful trafficking.
There is no forensic evidence to support the assertion.
On the other hand, I note that the defendant had been convicted for the offence of possession of dangerous drug and had been sentenced once to DATC. These convictions were between 2007 and 2015. In 2018, he was convicted for possession of an item fit and intended for consuming dangerous drug.
There were two batches of drugs seized, one being the ketamine the defendant was taking out from the flat and the other being those found in the flat. The drugs inside the flat included ketamine and ‘Ice’.
The first batch was of substantial quantity, 123 grammes of ketamine. Upon arrest the defendant said he was intending to take the “K” out for sale. For the drugs found inside the flat, the initial statement the defendant made was that some were for self-consumption and some were for selling.
In the first video-recorded interview, he did say he consumed ‘Ice’ and cannabis but he did not take ‘Ice’ frequently. He said he consumed 1 to 2 grammes of cannabis a week.
In the second video-recorded interview, he said that the ‘Ice’ was for his own consumption and also described how he consumed ‘Ice’. There was a bottle and its appearance was consistent with the defendant’s assertion that he used it to consume ‘Ice’.
In all the circumstances, though not without reservation, I am prepared to accept that the defendant intended to have some of the ‘Ice’ seized for his own consumption. I, however, do not find sufficient basis for me to be satisfied that the quantity for such purpose was substantial.
At the same time, I bear in mind that the offence of possession of dangerous drug itself carries a custodial sentence. My assessment of the latent risk is that it was substantial.
All in all, I do not find the notional sentence after trial should be adjusted in the defendant’s favour by reason of the assertion of self-consumption. The defendant pleaded guilty before a magistrate and for this, he is entitled to a one-third discount.
Having considered the whole circumstances, including what Mr Chiu mitigated on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to in this case.
Defendant, for the reasons I have said, I sentence you to an immediate imprisonment term of 6 years and 4 months.