COURT: I do not propose to keep you in suspense. You are going to prison for 18 years and 8 months. When I have left court, your lawyers will explain to you when you are likely to be released, bearing in mind the rules about remission of sentence and the length of time you have been in custody.
You have to be sentenced for trafficking in the ketamine found on you at the time of your arrest, that is Charge 1, and for trafficking in the ‘Ice’, heroin and ketamine found shortly afterwards in the flat in Kwun Tong where you were living, that is Charge 2. In addition, though, the police found in your flat the equipment needed to recrystallise ketamine. Much of that equipment had traces of ketamine on it. That is why you have to be sentenced for conspiring to manufacture ketamine, that is Charge 3. The Summary of Facts sets out the factual basis on which you should be sentenced, and where that is unclear, I propose to sentence you on the basis of those facts which are most favourable to you.
I deal first with the first two charges. Following your arrest, you told the police that you had collected the ketamine found on you in your flat “as instructed by [your] boss” a week or so earlier, and that you were taking the ketamine found on you to Tsim Sha Tsui. There is nothing in the Summary of Facts which tells me what you had collected the ketamine from your boss for, or who you were delivering the ketamine found on you to, for example, whether you were delivering it to the end users or simply to the next person in the chain of distribution by which it was to get to the ultimate consumer.
The same applies to the ‘Ice’ and the heroin found in your flat, save that you also told the police three things. First, that the drugs you collected had not been sold because there were not any customers for them. Secondly, that the heroin needed to be dried before it could be sold. And thirdly, that once the heroin had dried, you would press it into brick form to enable it to be sold at a higher price. Again, there is nothing in the Summary of Facts which tells me whether when you referred to selling the drugs, you would be selling them yourself or whether you would be passing them further up the chain of distribution to be sold by someone else. The antecedent form tells me that you are dependent on drugs yourself, though you do not suggest that any of these drugs were for your own use. Even if they had been, they would not have had an impact on your sentence as they would have represented only a tiny proportion of the drugs the police recovered.
You will have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in drugs. The guidelines are based on their narcotic content. The weight of the narcotic content of the drugs in your case was as follows: 9,000 grammes of ‘Ice’; 1,321 grammes of heroin; and about 869 grammes of ketamine, leaving aside the ketamine in liquid form whose quality you were in the process of improving. I acknowledge that had you been arrested a week earlier or a week later, the quantities of the drugs you would have had may have been less. It was therefore a matter of chance that when you and your flat were searched, there happened to be these quantities of drugs in total. But what was on you and in your flat at the time is the only basis on which the court can sentence you on Charges 1 and 2.
The sentencing guideline for ‘Ice’ says that the appropriate range for someone who is convicted of trafficking in between 4,000 to 15,000 grammes of ‘Ice’ is 26 to 30 years’ imprisonment. The sentencing guideline for heroin says that the appropriate range for someone who is convicted of trafficking in 1,200 to 4,000 grammes of heroin is 23 to 26 years’ imprisonment. The sentencing guideline for ketamine says that the appropriate range for someone who is convicted of trafficking in 600 to 1,000 grammes of ketamine is 12 to 14 years’ imprisonment. These are the appropriate ranges for someone who has been convicted after pleading not guilty.
The guidelines to which I have referred were set for defendants who were involved in trafficking at the lowest level of culpability, namely as a courier or storekeeper. The Court of Appeal has recently identified the hierarchy of roles of those who traffic in dangerous drugs. Had you been intending to deliver the drugs to your boss’ customers, your role might be said to have been more than that of a courier who was simply passing the drugs on to the next person in the chain of distribution by which the drugs were eventually to reach the ultimate consumer.
But the Summary of Facts does not permit me to sentence you on the former basis, and I propose therefore to sentence you on the basis of the latter; in other words, as a courier whose role was at the lowest level of culpability. Having said that, there needs to be a modest enhancement of the notional starting point for the heroin as you were taking steps to improve its quality. On a purely arithmetical approach, the guidelines laid down by the Court of Appeal would have resulted in your case in a notional starting point for sentence of about 27 years’ imprisonment for the ‘Ice’, about 23 years’ imprisonment for the heroin, and about 13 years’ imprisonment for the ketamine. That is what the guidelines laid down by the Court of Appeal say.
However, it would not be fair if I simply took the appropriate sentence for each of the drugs and then aggregated them. The fairer and much more realistic approach is to take the longest sentence which would have been passed on you if you had to be sentenced for trafficking in just one of those drugs, in this case the ‘Ice’, and then to take into account the fact that you were trafficking in heroin and ketamine as well. In that context, I have borne in mind that the Court of Appeal has said that trafficking in a variety of drugs is an aggravating factor. But at the same time, I must be careful not to sentence you twice over for the same thing. That is called double counting, and Mr Cheung rightly warns me against taking a course which involves that. I have also borne in mind what the Court of Appeal has said about the various tests - the absurdity test, the conversion test, and the ratio test - for checking whether the overall starting point which the court has in mind in cases such as yours where the offender has been convicted of trafficking in more than one drug is broadly correct.
I turn to the 3rd charge. This was not a particularly sophisticated manufacturing operation. Indeed, it looks as if it constituted the manufacturing of ketamine in a somewhat technical sense. You were not manufacturing it from scratch. You simply used the ketamine powder you had collected and turned it into a purified crystallised form by heating it and melting it with a small amount of solvent and then cooling it down. Mr Chan for the prosecution has confirmed that that did not even amount to converting the raw material into a saleable commodity. It simply amounted to improving the quality of the ketamine you had.
You admitted to the police that you had not been instructed to do that, it was something you chose to do. But the Summary of Facts does not say that you accept that what you told the police about that was true. And you now say that that was something which you were instructed to do. Nor is there anything in the Summary of Facts which reveals how long you had been improving the quality of the ketamine in this way. Indeed, it is more than possible that the only ketamine whose quality you improved in this way was the ketamine included in the 1st and 2nd charges. The form of the Summary of Facts means that all this represents the factual basis on which you have to be sentenced on the 3rd charge. It is unnecessary for me to say what sentence I would have passed in these circumstances had I had to sentence you on the 3rd charge alone. It is sufficient for me to say that the notional overall sentence for the two trafficing offences will have to be enhanced only in a modest way to incorporate your criminality on the 3rd charge.
In the light of the role you played in this operation, that of a courier who improved the quality of the heroin and ketamine you were delivering, the quantity and variety of the drugs you were trafficking in, and the rudimentary nature of the process by which you were improving the quality of the ketamine, I propose to take 28 years’ imprisonment as my overall starting point.
In deciding on that overall starting point, I have borne in mind two additional things. First, there is your age. You are now 59 years old and you will be in old age when you are eventually released. Although you have many previous convictions, including convictions for serious drugs offences, and have been to prison many times before, this will be by far the longest sentence you have ever had to serve. I acknowledge that it is a crushing sentence for a man of your age.
Secondly, and absolutely fundamentally, I have to bear in mind the principle of totality which requires me to stand back and check that the overall sentence is not disproportionate to the totality of your offending. You are entitled, of course, to have your sentence reduced by one-third because of your plea of guilty on the return date when you were committed to the High Court for sentence. That means that the overall sentence I propose to pass on you is one of 18 years and 8 months’ imprisonment.
I need to identify the sentences to be passed on each charge, bearing in mind that the charges relate to different types of offence and involve different drugs in different quantities. On Charge 1, the sentence is 8 years’ imprisonment. On Charge 2, the sentence is 17 years’ imprisonment, and on Charge 3, the sentence is 10 years’ imprisonment. All those sentences will be served concurrently with each other, save that 1 year and 8 months of the sentence on Charge 3 will be served consecutively to the concurrent sentences on Charges 1 and 2. That makes 18 years and 8 months’ imprisonment in all.