COURT: After trial, the jury convicted the defendant of Charge 1, conspiracy to traffic in dangerous drugs, returning a verdict of five to two. The jury unanimously convicted the defendant of Charge 2, possession of dangerous drugs, a small quantity of herbal cannabis.
The prosecution seized seven barrels of powder and liquid on 11 September 2020 from two drivers who were subsequently found to be just that, drivers, and released. The barrels were quickly tested and four were found to contain ketamine. A controlled delivery operation was arranged. One of the drivers agreed to assist in the operation and he received a call to deliver the seven barrels to the defendant on 15 September 2020.
As instructed by his co-conspirator, Shek Kai-fat, the defendant received the seven barrels downstairs from his home in Pak Tin Estate. He stored them all overnight in his premises and on the following day arranged for them to be delivered by GoGoVan to premises rented that same day in an industrial building in Kwun Tong. He was given the key and the address of the premises in the form of a rental receipt dated that same day by Shek. He accompanied the GoGo driver to the premises. The defendant took them upstairs and locked the seven barrels in a room.
The police had those barrels under observation from 15 September 2020. Nobody dealt with those barrels on 17 September 2020. The defendant was driven to the industrial building just before 11.00 pm on 18 September 2020 by Shek. He went up to install a CCTV camera inside the room by himself. He was arrested coming out of the room. Shek has since been put on a wanted list by the police.
During a house search the following morning, the police found a small quantity of herbal cannabis in a drawer in the defendant’s bedroom. Under caution, the defendant admitted it was for his own personal consumption.
The defendant’s evidence was that Shek asked him to store the barrels overnight and they contained construction material. Shek did appear on 15 September when it was apparent the defendant could not physically move the barrels from the pavement up to his home by himself. Shek then asked the defendant to move them to the industrial building, again as a favour. Two days later, again at the request of Shek, he agreed to go upstairs to the industrial building and install a CCTV camera inside the room. He and Shek were very good friends, but he did not know that the barrels contained any drugs. He trusted Shek but was deceived and used by him.
After his arrest he did not make any admissions or confessions as suggested by the police and evidenced by post-recorded statements, statement under caution and video-recorded interviews.
There was a voir dire hearing prior to trial where I ruled all admissions and confessions admissible and voluntary. The defendant’s evidence was that he had been assaulted, induced, threatened and oppressed to sign notebooks, Notices to Persons in Custody, as well as coached to give incriminating answers in both video-recorded interviews.
Mitigation
The defendant was born and educated in Hong Kong. He is now 26 years old, single, and was at the time of his arrest living with his family. He had a clear record when he was arrested. In mitigation, Mr Wong has said all he can say on the defendant’s behalf. There is not much that can be said after trial but he does ask for leniency.
Sentencing
Charge 1
I have taken into account the latest authority relating to sentencing the offence of traffic in dangerous drugs as laid down by HKSAR v Herry Jane Yusuph [2020] HKCA 974. I have considered the six step sentencing approach taken from that authority. It applies also to the offence of conspiracy to traffic dangerous drugs. In this case I accept and am satisfied that the defendant was a conspirator who can be categorised as acting like a drug mule in that he was tasked with collecting barrels, storing them and dealing with them.
It is a charge of conspiracy to traffic dangerous drugs, but in this case, a crime was in process, was detected and we have the exact amount of drugs involved. Therefore, the court has a ready means of identifying an appropriate starting point. Though quantity is not the only fact relevant to the assessment of the gravity of this offence. I do not know or I have no evidence that this conspiracy was long-term or confined to these barrels and those few days. Hence, there will be no increase for that reason which I will consider.
The sentencing regime for trafficking in ketamine is governed by guidelines laid down in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. Here the quantity is 99,618.5 grammes of a solid containing 3,437.08 grammes of ketamine.
For such a large quantity of the drug, I have referred myself and Mr Wong has referred me to HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and HKSAR v Chow Yau Ching [2014] 2 HKLRD 639, where the Court of Appeal endorsed the rationale behind Sin Chun Kin and reaffirmed the analysis in that authority.
In Sin Chun Kin the court determined that for trafficking in 2,000 grammes of ketamine the starting point should be no less than 18 years’ imprisonment. For trafficking in 3,000 grammes, the starting point should be no less than 20 years’ imprisonment. If there is more than 3,000 grammes involved, the starting point will exceed 20 years and then becomes the discretion of the sentencing court. The Court of Appeal has said these cases are not laying down guidelines, but rather, making it clear that the larger the quantity of the drug involved, the more severe the sentence will be.
Having considered the authorities, the facts of the case, the defendant’s role in this conspiracy, the quantity of drugs and everything said in mitigation, especially his previous clear record, I find this amount of ketamine will attract a starting point of 20 years’ imprisonment for Charge 1. The defendant was convicted after trial and there are no other factors to consider a reduction in that starting point.
Charge 2
I have taken into account the drug here is herbal cannabis and a very small quantity. I have also considered the fact the defendant previously had a clear record. I will take a starting point of 6 months’ imprisonment for Charge 2. I have considered the facts of this case and I find it appropriate to ultimately make the sentences for both charges concurrent.
Lastly, I have taken into account the sixth and last step of Herry Jane Yusuph which is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender to ensure that it is not a crushing sentence. This would be particularly relevant to cases involving multiple offences or where there are several aggravating factors which mean multiple enhancements. Here there are no other aggravating factors that enhance the starting point.
In approaching this principle, I have weighed it against the sentence of 20 years’ imprisonment, quantity of drugs and the facts of the case. Standing back, it is a very significant term of imprisonment, but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Defendant, please stand up. Accordingly, for Charge 1, you are sentenced to 20 years’ imprisonment. For Charge 2, you are sentenced to 6 months’ imprisonment. I will order that both sentences be served concurrently. Therefore, the total sentence will be one of 20 years’ imprisonment.