COURT: Defendant pleaded guilty to three charges of trafficking in a dangerous drug on 10 October 2022 and was committed to the Court of First Instance for sentence. She now confirms her plea and admission of the Summary of Facts.
The particulars of the 1st Charge are that the defendant, on 3 May 2021, outside the Ground Floor of Tower 5B, Century Link, 6 Ying Hong Street, Tung Chung, New Territories, unlawfully trafficked in dangerous drugs, namely, 144.9 grammes of a crystalline solid containing 139.6 grammes of methamphetamine hydrochloride, ‘Ice’, 45.72 grammes of a solid containing 39 grammes of ketamine, and 8.8 grammes of a solid containing 7.65 grammes of cocaine.
The particulars of 2nd Charge are that the defendant, on the same day at Flat 8, 1st Floor, Tower 5B, unlawfully trafficked in dangerous drugs, namely, 1,406.74 grammes of a crystalline solid containing 1,359.9 grammes of ‘Ice’, 622.65 grammes of a solid containing 412.01 grammes of ketamine, 6.66 grammes of a powder containing 5.77 grammes of ketamine, 19.8 grammes of a solid containing 17.25 grammes of cocaine, 18.99 grammes of a mixture
containing 15.2 grammes of heroin hydrochloride, 181.35 grammes of cannabis in herbal form, 59.85 grammes of a solid containing 0.92 grammes of methamphetamine and 4.35 grammes of what is known as ‘Ecstasy’, and 56.2 grammes of a powder containing 0.95 grammes of methamphetamine and 4.03 grammes of ‘Ecstasy’.
The particulars of the 3rd Charge are that on the following day at Room 1724, Kai Fai House, Choi Wan Estate, 55 Clear Water Bay Road, Wong Tai Sin, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 6,917 grammes of a powder containing 5,760 grammes of ketamine and 513 grammes of a crystalline solid containing 512 grammes of ‘Ice’.
The Facts of Case
At around 7.30 pm on 3 May 2021, the police intercepted the defendant as she came out of Tower 5B, Century Link. They searched a brown bag she was carrying and found all the drugs of the 1st Charge. She was arrested for trafficking in dangerous drugs and under caution admitted the drugs belonged to her.
The police already had a search warrant for Flat 8 on the 1st Floor of Tower 5B and opened the door with one of two sets of keys found on the defendant when she was intercepted downstairs. The premises were searched and the police found all the drugs of the 2nd Charge in these premises. They also found paraphernalia associated with weighing and packaging dangerous drugs, including four electronic scales, two heat sealers, scissors, a cutter, and a substantial quantity of empty transparent resealable plastic bags.
The defendant was arrested and cautioned again for trafficking dangerous drugs. She admitted she was employed to distribute and sell the drugs found inside those premises. She admitted to the police that there were more drugs in her home in Choi Wan Estate which belonged to her and had nothing to do with her family members.
The defendant was taken back to her family home and the door was opened to Room 1724 using the other set of keys found on her. Her bedroom was searched and inside a drawer, the drugs of Charge 3 were seized by the police. She was arrested and cautioned again and admitted that a friend asked her to keep custody or look after those drugs.
The defendant admits that messages found on her mobile phone related to instructions to pick up, pack, and distribute
drugs of different types. They were referred to in the messages as ‘Perfume’, ‘Pork’, ‘Finger’, ‘Candy’, ‘Happy Powder’, ‘Chair’, and ‘Soft Drinks’. And a narcotics expert opined those names represented ketamine, methamphetamine, nimetazepam, ‘Ecstasy’, a powder or liquid containing ‘Ecstasy’, heroin and cocaine respectively.
She also sent photographs of packed drugs to the same person. She would report in when deliveries were made and received a salary and travel expenses.
The defendant admits that at the material time, the estimated street value of the ‘Ice’ was $1,125,229. The value of the cocaine was $35,092 if sold in powder form or $48,506 if converted into crack cocaine. The value of the ketamine was 3,985,816. The value of the cannabis was $27,203. And the heroin hydrochloride seize was $21,516. The total estimated street value of all the dangerous drugs seized was therefore between 5,194,856 to $5,208,270.
Mitigation
Defendant at the time of her arrest was 17 years old and is now 20. She left school in February 2021 whilst in Form 3. She was part of a complete and loving family until January 2017 when her father sadly passed away suddenly. This left the family in some financial difficulty and her mother had to find employment to support the defendant who was 15 at the time and her younger brother then 9 years old.
The defendant then became mixed up with undesirable peers. She was vulnerable and tempted into making money which she did not have by agreeing to storing and delivering drugs for others. Before her father died she had a normal, happy childhood and was well behaved.
She had a clear record at the time of these offences but was on bail, having been arrested and charged with possession of dangerous drugs approximately two months before these offences. She was convicted for possession in July 2021 and fined $2,000.
Mr Cheung has said all he can say in mitigation on behalf of the defendant. I have considered all mitigation put before me. I have considered the letters from family and those that care enough to write and asked for leniency and understanding and the reasons why the defendant committed these offences.
Her father’s sudden death was traumatic and led to emotional issues which then led to the defendant leaving school and losing her way. The defendant’s best mitigation is her plea of guilty at the earliest opportunity.
Trafficking Guidelines and Sentencing
I have considered the approach to sentencing those who traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take such as assessing the gravity of the offences and applicable guidelines, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just, and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized and here there are many types. Taking into account the facts of the case, I intend to take a global approach and look at all the drugs in all three charges together rather than deal with each charge separately. After all, Charges 2 and 3 were as a result of home searches after the defendant was stopped by the police and found to be in the possession of the drugs of Charge 1.
I will also say from the outset that I do not intend to take into account in my calculations the small amount of herbal cannabis and the solid containing traces of methamphetamine and ‘Ecstasy’, as well as the powder containing traces of the same drugs found in Flat 8 of the 2nd charge. Those amounts were de minimis when compared to the amounts of ‘Ice’, ketamine, cocaine and heroin in this case.
In this case, in Charges 1, 2 and 3, there was a total of 6,216.78 grammes of ketamine. The sentencing regime for trafficking in ketamine is governed by guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. However, here the quantity is 6,216.78 grammes. For such a large quantity of this drug, I have referred myself 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 Chung Kin and reaffirmed the analysis in that authority.
In Sin Chung 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 at the discretion of the sentencing court. The Court of Appeal have 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. The court held:
“...if more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity. The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case.”
Therefore, in this case the defendant would be, just for the ketamine alone, facing a starting point exceeding 20 years’ imprisonment.
Here, in Charges 1 and 2, there was a total of 24.9 grammes of cocaine. The sentencing guidelines for cocaine is found in the authority of R v Lau Tak Ming [1990] 2 HKLRD 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that sentencing guidelines in Lau Tak Ming, which are directed at trafficking heroin, are equally to be applied in cases of cocaine trafficking. Therefore, I intend to add together the 15.2 grammes of heroin of Charge 2 and the cocaine of Charges 1 and 2, which totals 40.1 grammes.
The starting point for trafficking between 10 to 50 grammes will be between 5 and 8 years’ imprisonment. Mathematically speaking, the total weight of the 40.1 grammes of cocaine and heroin here alone would attract a starting point of 7 years and 3 months’ imprisonment.
Though in this case, in Charges 1, 2 and 3, there is a total of 2,011.5 grammes of ‘Ice’. The sentencing guidelines for ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the starting point for trafficking between 1,200 grammes to 4,000 grammes of ‘Ice’ will be between 23 and 26 years’ imprisonment. Mathematically speaking, the total weight of 2,011.5 grammes of ‘Ice’ here alone will attract a starting point of 23 years and 10 months’ imprisonment.
There are a cocktail of drugs for unlawful trafficking in this case. There are different approaches to sentencing in this situation but clearly the combined approach here should apply and it will produce the more realistic sentence.
It would be sensible to take the combined approach where the total quantity of drugs will be converted into the quantity of the most serious drugs of the four types here.
The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug, and then make an upward adjustment to take into account the other drugs. I have referred to HKSAR v Chan Yuk Leong, CACC 318/2013. In that authority, the Court of Appeal held that the court should take the most serious drug and adjust it upwards for the other drugs. The court there discussed three means of cross-checking whether the sentence was manifestly excessive. The first test being the absurdity test, the second test being the conversion test, and the third test being the ratio test.
The quantity of ‘Ice’ here is significant and more potent than the ketamine, therefore I will take ‘Ice’ as the base for sentencing and convert the other drugs into ‘Ice’ to calculate an appropriate starting point.
I have converted the quantity of cocaine and heroin here into ‘Ice’ which equals 13.86 grammes. Because of the ceiling of 3,000 grammes of ketamine attracting a 20-year term of imprisonment, I first calculate a conversion of 3,000 grammes of ketamine to ‘Ice’ which will equal 600 grammes. When I add 13.86 grammes and 600 grammes to the 2,011.5 grammes of ‘Ice’, this would total 2,625.36 grammes of ‘Ice’. This would mathematically attract a sentence of 24 years and 6 months’ imprisonment.
This calculation using 3,000 grammes of ketamine does not reflect the full amount of ketamine trafficked in this case. The full amount, I repeat, is 6,216.78 grammes. Being mindful of the Court of Appeal’s view that where the amount of ketamine is over 3,000 grammes, the increase in sentence should not be proportional to the increase in the drug quantity. I therefore intend to take a starting point of 25 years and 6 months’ imprisonment. The additional 12 months will reflect the balance of 3,216.78 grammes of ketamine yet to be taken into account.
The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. It would appear from the evidence that she was tempted by money and paid to act as a storekeeper and a courier. There is not enough evidence to prove she was actually trafficking the drugs. Therefore, I will determine the starting point of her overall sentence from the relevant tariffs and quantity of dangerous drugs I have taken into account.
Considering the third step of where within the guidelines the defendant should lie, I accordingly take a starting point of 25 years and 6 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any mitigating factors. I find no aggravating factors exist serious enough for me to enhance the starting point of 25 years and 6 months’ imprisonment. There are no other mitigating factors other than the defendant’s plea of guilty at the earliest opportunity and what I have heard from Mr Cheung and taken on board.
However, after hearing and taking into account all mitigation, I intend to reduce that starting point by 40 per cent which would reduce that starting point to 15 years and 3 months’ imprisonment.
The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just, and balanced in all the circumstances of not only these offences but also the defendant. 15 years and 3 months’ imprisonment is not so harsh a sentence that it is unfair, imbalanced, or unjust. I see no reason to deduct any of that sentence in consideration of this last step.
Accordingly, the defendant is sentenced to 15 years and 3 months’ imprisonment for each charge.
All three sentences will be served concurrently. Therefore, the defendant is sentenced to a total of 15 years and 3 months’ imprisonment.