COURT: The defendant pleaded not guilty to one count of trafficking in a dangerous drug. On 28 September 2022, inside a private vehicle in Hong Kong, together with another person or persons unknown, he unlawfully trafficked in dangerous drugs, namely, 96.17 grammes of a solid containing 77.54 grammes of ketamine, 37.5 grammes of a crystalline solid containing 28.8 grammes of methamphetamine hydrochloride, and 7.09 grammes of a solid containing 5.82 grammes of cocaine. He was convicted after trial by a jury with a majority of six to one.
The facts are straight forward. His vehicle was pulled over at a roadblock in Sham Shui Po at about 9.30 pm that evening. He was alone in his own vehicle. He failed to stop when instructed by the roadblock police officer. When he failed to stop, that police officer shouted out aloud and the defendant did come to his senses and stopped.
He had no excuse for failing to stop, so his vehicle was pulled over. It was searched, and in the glove compartment the police found two small paper boxes containing plastic bags of dangerous drugs. In a grey cross-shoulder bag found on the back seat of the vehicle, the police found more transparent plastic bags of drugs. There was a total of 127 bags of dangerous drugs. The Government Chemist determined three types of drugs: ketamine, cocaine, and ‘Ice’.
The defendant was arrested and cautioned at the scene, and under caution told the arresting officer that the drugs were all for his own consumption. The following day, a video-recorded interview was conducted. There, he admitted that he was a drug courier. He had been instructed to go to Tsuen Wan to pick up the grey bag full of drugs. He was to drive to Sham Shui Po and conduct a drugs transaction, collecting $2,000. He explained that he owed a large debt and was repaying it by delivering drugs.
During this trial his defence was that his girlfriend had left the drugs in his vehicle earlier that day, and he had no idea the items contained dangerous drugs. The admissions relied upon by the prosecution were not voluntary, nor of his own free will. His defence was not believed by the majority of the jury.
Mitigation
The defendant was 28 years old at the time of his arrest. He had a clear record. He was divorced with a child. At the time of his arrest, he was working as a transportation worker. At the time of his trial, he was working in a food and beverage business again.
Mr Arthur has said all he can say on behalf of the defendant in mitigation. There is not much he can say of any weight, especially with the defendant being convicted after trial. However, he has highlighted some letters from the defendant, his family and a supervisor. I have read and considered the contents.
Trafficking guidelines
I have considered the approach to sentencing those that 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 as 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 offence and applicable guideline, 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 drugs seized. Here, there are three types of drugs, and the most serious drug is ‘Ice’.
The sentencing guidelines for ‘Ice’ is found in the authority of the HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 10 grammes and 70 grammes of ‘Ice’ will be between 7 to 11 years’ imprisonment. Mathematically speaking, the total weight of 28.8 grammes of ‘Ice’ here alone would attract a starting point of 8 years and 3 months.
The sentencing guidelines for cocaine is found in the authority of R v Lau Tak Ming [1992] HKLR 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming, which are directed at trafficking heroin, are equally to be applied in cases of trafficking cocaine.
The starting point for trafficking up to 10 grammes will be between 2 and 5 years’ imprisonment. Mathematically speaking, the total weight of 5.82 grammes of cocaine here alone would attract a starting point of 3 years and 9 months’ imprisonment.
The sentencing guidelines for ketamine is found in the authority of Secretary for Justice v Hii Siew Cheng, and the starting point for trafficking between 50 to 300 grammes of ketamine will be between 6 to 9 years’ imprisonment. Mathematically speaking, the total weight of 77.54 grammes of ketamine here alone would attract a starting point of 6 years and 4 months’ imprisonment.
I will take into account the three types of drugs I have referred to, “a cocktail of drugs”. The individual approach would obviously be unfair here. All agree the combined approach should be adopted using ‘Ice’ as the base drug as ‘Ice’ is the most potent and serious drug. I intend to convert the quantity of cocaine and ketamine into ‘Ice’ to find a mathematical starting point. After the conversion I calculate a total of 38.99 grammes of ‘Ice’, which will attract a starting point of 8 years and 11 months’ imprisonment.
The second step of the six steps is to assess the defendant’s role and culpability based upon the evidence. He admitted to the police he was a drug courier instructed to pick up drugs packed ready for sale and distribution at point A, and at the time of his arrest was on his way to point B to deliver some of the drugs and collect $2,000.
This leads me to the third step of where within the guidelines this defendant should lie, what is his role and culpability. Taking into account his role as a courier, I intend to take the mathematical starting point of 8 years and 11 months.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any mitigating factors. The defendant was convicted after trial. I find there to be no mitigating or aggravating factors.
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 this offence, but also the defendant. This sentence is not so harsh, it is unfair, imbalanced or unjust. I see no reason to interfere with it.
Accordingly, I sentence the defendant to 8 years and 11 months’ imprisonment.