COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug and one charge of trafficking in dangerous drugs before a magistrate on 15 September this year, and admitted the Summary of Facts in support.
In respect of the 1st charge, it is alleged that on the 23rd day of June 2024, outside a flat on the 1st Floor of Fok Kwan Building on Boundary Street, Mong Kok, he unlawfully trafficked in 0.45 grammes of cocaine narcotic.
In respect of the 2nd charge, it is alleged that on the same day, at Room 6 of the same flat in that building, he unlawfully trafficked in 35.47 grammes of cocaine narcotic, and 2.59 grammes of ketamine narcotic.
I shall now come to the Summary of Facts in support of those two charges. In the evening of 23 June 2024, police officers laid ambush in the vicinity of Fok Kwan Building on Boundary Street in Mong Kok. At about 9.16 pm, the defendant was seen leaving Flat B of the 1st Floor. He was intercepted. Upon body search, two transparent resealable plastic bags containing all the drug particularised in the 1st charge was found inside the wallet kept in the right rear pocket of his trousers. Also he had with him a mobile phone and cash of $6,250 at that time. He admitted under caution that all the drugs found was for sale.
Upon further enquiry the police found that he lived at Room 6 of that flat, and he provided the password of accessing the door of the room. At about 9.23 pm on the same day, the police entered the room with the password provided by the defendant.
Upon search, they found a total of 166 plastic bags containing all the drugs particularised in the 2nd charge and a quantity of packaging paraphernalia including a digital scale, a metal tray, a spoon, a pair of scissors, a calculator, a stapler, empty plastic bags and a vacuum sealer. Cash of $1,700 was also found on the table.
Upon his further arrest, he stated under caution that he had received $800 to sell the drugs in the room.
The estimated street value of all the drugs in the 1st and the 2nd charges is about HK$41,293.94.
The defendant now accepts and admits that at the material times, he knowingly possessed all the drugs in respect of the two charges for the purpose of unlawful trafficking.
The defendant is now 35 years of age, and he was 33 years old at the time of the offences. He has attained education up to Form 5 standard, and he was unemployed at the time of his arrest. He is single and lives together with his family members.
I was informed by the prosecuting counsel that indeed earlier, on 27 January this year, he was sentenced to a total of 14 months’ imprisonment for the offence of dealing with property known or believed to represent proceeds of indictable offence. In short, I will call that the money laundering offence. And at the time when he committed the present offences, he was not being released on bail of any kind in respect of that matter.
According to the chronology submitted by the prosecution, he was indeed arrested for the present offence on 23 June 2024, and thereafter, on 3 December 2024, he was rearrested for the money laundering case and charged to court.
Eventually, on 27 January 2025 he pleaded guilty in Shatin Magistrates’ Courts and was sentenced to 14 months’ imprisonment for the money laundering offence. He also pleaded guilty on 15 September 2025 in the Magistracy in the present case. He has already completed his term of imprisonment for the money laundering offence on 23 October this year. So, to put it short, he was a person of clear record at the time when he committed the present offences.
In mitigation, defence counsel Mr Kenneth Wong informed me that the defendant’s father had passed away in 2008. His elder sister is married and she is planning to migrate to Australia with her family. His mother is 65 years of age and not of good health.
In mitigation, a letter was prepared by the defendant himself and also a letter was written by his mother. In his own mitigation letter, the defendant stated that he committed the present offences out of greed, that his grandmother passed away during his remand in custody and now he has decided to turn a new leaf.
In the letter prepared by the mother, she said that about two years ago he was under the influence of bad peers and started to be involved in gambling, and he was indebted. Eventually the creditors came up to press him for the debt and made a lot of nuisances to trouble the family. That might have led the defendant to commit the present offences.
As I have stated, the defendant was a person of clear criminal record when he committed the present two offences.
Since the two charges were offences committed on the same day at different locations, counsel relied on the legal principle in the case of HKSAR v Wan Lau Mei [2014] 4 HKC 75 and asked this court to deal with both charges together as if the drugs had been found together and formed one count of trafficking in dangerous drugs. I agree to that principle.
Originally counsel submitted that he was only acting as a courier or storekeeper in this case. However, his attention was drawn to the fact that a large number of packaging paraphernalia was also seized in the premises. Counsel admitted that the defendant was given money to do the packaging of the drugs in the flat as well.
In respect of mitigation, counsel asked this court a not to enhance the sentence because for the multiple types of drugs, that means two types of drugs were found, because only a small quantity of ketamine was involved. But counsel also rightly conceded that the real mitigating factor here is the defendant’s guilty plea so that he is entitled to the full one-third discount.
In respect of his sentence for the money laundering matter, as he had already completed his sentence in October this year, counsel urged this court to exercise its discretion to give a further reduction in his sentence. So, taking into account that if both cases had come before this court at the same time, a partly concurrent sentence might have been imposed.
In this case, the 1st charge involved a total of 0.45 grammes of cocaine narcotic. The 2nd charge involved 35.47 grammes of cocaine narcotic and 2.59 grammes of ketamine narcotic.
According to the case of Wan Lau Mei, the Court of Appeal stated that where different quantities of dangerous drugs were found in a defendant’s possession on the same day, but at different locations, the judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another, so as to do justice to the case. This is the approach that I will follow in sentencing the defendant.
So, adopting the principles stated in the case of Wan Lau Mei, I should look at the total quantity of narcotic involved in both charges. The total narcotic involved is 35.92 grammes of cocaine narcotic and 2.59 grammes of ketamine narcotic. That means 93.3 percent of the total quantity of the drugs was cocaine, and 6.7 percent of the drugs was ketamine.
According to the sentencing guideline, for 35.92 grammes of cocaine narcotic the starting point would be 6 years and 11 months’ imprisonment, and the starting point mathematically for 2.59 grammes of ketamine would be 2 years and 4 months’ imprisonment.
If I adopt the individual approach by adding up the two sentences together, the total would be 9 years and 3 months’ imprisonment which is unfairly high and does not properly reflect the justice of the case. So I will adopt the combined approach which can achieve a more reasonable and realistic sentence. This approach involves the upward adjustment from the starting point of the base drug to take into account the remaining drug and the fact that there were two types of drugs involved.
As between cocaine and ketamine, cocaine is the more serious drug in terms of potency, and also in this case in terms of quantity. So I will adopt cocaine as the base drug in this case.
In determining the adjustment for the remaining ketamine narcotic, I will examine the overall starting point by checking the starting point for trafficking in 35.92 grammes of cocaine narcotic against the absurdity test, the conversion test and the ratio test.
According to the absurdity test, if all the drugs seized were cocaine, then the starting point would be about 7 years and 1 month’s imprisonment. If all the drugs seized were ketamine, then the starting point would be about 5 years and 5 months’ imprisonment.
Under the conversion test, treating all the drugs as cocaine would result in a starting point of 7 years’ imprisonment, and treating all the drugs as ketamine would result in a starting point of 6 years and 11 months’ imprisonment.
Under the ratio test, the starting point would be one of 6 years and 11 months’ imprisonment.
Bearing in mind all the circumstances of this case and the result of the three tests, I consider that the appropriate starting point before I assess the role and culpability of the defendant should be one of 7 years’ imprisonment.
In assessing the role and culpability of the defendant in this matter, I do bear in mind that he was more than a pure storekeeper or courier. Indeed he was both a courier and a storekeeper as well as a person responsible for packaging the drugs inside the premises as one can see from the quantity of packaging paraphernalia found in the premises. Counsel also admitted at the time of mitigation that he was given money to do the packaging in the flat as well. For that reason I will enhance the starting point by 6 months to 7½ years’ imprisonment.
Altogether two types of dangerous drugs were found. That means the trafficker has the ability to cater for a wider market, and there is also the aggravating feature of the effects of the combination of the dangerous drugs on the users.
However, as counsel has pointed out, the quantity of ketamine involved was much smaller than that of the cocaine. Only 2.59 grammes, that is about 6.7 percent, of ketamine was involved. This quantity is not so small that I should ignore its presence, but I consider that the degree of increase in sentence for this reason should also be relatively low because of the small quantity of ketamine involved. I will say the presence of two types of drugs would justify, in the circumstances of this case, a further increase of the overall starting point by 3 months. So the notional sentence after trial should be 7 years and 9 months’ imprisonment.
The defendant was a person of a clear record at the time when he committed the present offences. However the cases are clear that a clear record cannot be used as a useful or meaningful mitigating factor. I agree with counsel that other than his early plea of guilty which would entitle him to the full one-third discount, there is no meaningful mitigation factor here.
So, giving him the full one-third discount from 7 years and 9 months’ imprisonment, he is sentenced to a total of 5 years and 2 months’ imprisonment for both charges. Adopting the approach stated in the case of Wan Lau Mei, I will impose 5 years and 2 months for each of Charge 1 and Charge 2, and order the two sentences to be served wholly concurrent with each other. So the ultimate sentence for both charges is, again, 5 years and 2 months’ imprisonment.
I do bear in mind that even though the present offences was not committed while he was released on bail, he was indeed, earlier this year, sentenced to 14 months’ imprisonment for the money laundering offence, and he has completed all the 14 months sentence imposed in that case. As counsel had rightly pointed out, had both cases come before this court together I would have ordered a partly concurrent sentence on the two cases in order to arrive at a fair and just and balanced sentence according to the principles of totality.
To achieve that result I would exercise my discretion and reduce a further 6 months from the present sentence of 5 years and 2 months’ imprisonment. That means he is sentenced to a total of 4 years and 8 months for each of Charge 1 and Charge 2, and both sentences to be served wholly concurrent to each other.
So the ultimate sentence to be imposed for each of the charges is 4 years and 8 months’ imprisonment, and 4 years 8 months is also the total sentence to be imposed for the two charges.