COURT: Defendant, you confirmed your plea to the charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and your agreement to the Summary of Facts.
The particulars of the offence is that you on 12 January 2025, at the junction of Kimberly Road and Austin Avenue, Tsim Sha Tsui, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 3.83 grammes of a solid containing 3.11 grammes of cocaine; 22.03 grammes of a solid containing 17.41 grammes of ketamine; and 60.91 grammes of a crystalline solid containing 60.81 grammes of methamphetamine hydrochloride.
The Facts
The charge arises from these facts.
At about 11.50 pm on 12 January 2025, police officers on mobile patrol observed a private car parked on double yellow lines at the junction of Kimberley Road and Austin Avenue, Tsim Sha Tsui, with its headlights on.
The defendant was the driver and sole occupant. He appeared nervous, kept looking around and grabbed hold of the steering wheel with both hands. At about 11.52 pm, the defendant alighted for inquiry. He suddenly turned right and fled towards Austin Avenue. Police officers gave chase and intercepted him at No. 18 Austin Avenue, about 30 metres from the car. He kept struggling and was then handcuffed. Nothing suspicious was found on his person.
Upon search of the private car, dangerous drugs as particularised in the charge were found concealed under the carpet of the driver’s seat and the front passenger seat, contained in transparent resealable plastic bags and subdivided into smaller plastic bags.
The defendant stated under caution that he concealed the cocaine in the private car and that he delivered the cocaine for sale. In a subsequent video-recorded interview, the defendant stated that he drove the private car to Austin Avenue and waited for a purchaser of the dangerous drugs; that the large bags contained methamphetamine hydrochloride and the small bags contained cocaine; that he rented the private car in December 2024 for one month at a rent of $5,500 and had never let others drive it; and that the cash of $10,901 found in the sling bag on the front passenger seat was his savings.
The defendant admits that he unlawfully possessed the dangerous drugs for the purpose of trafficking.
Background and Mitigation
The defendant is 29 years of age. He was born in Hong Kong. His father passed away when he was about 1 year old. His mother remarried and left the defendant and his elder sister in the care of their grandmother, who died when the defendant was 14 years old. Thereafter, the defendant ceased schooling at Form 2 level. He worked as a casual worker earning about $10,000 a month and was unemployed at the time of arrest.
The defendant was convicted on two occasions previously. On 26 February 2019, he was convicted of, amongst two other charges unrelated, trafficking in dangerous drugs, for which he was sentenced to 32 months’ imprisonment. On 8 February 2024, he was convicted of simple possession of dangerous drugs, for which he was fined $5,000.
In mitigation, counsel for the defendant submitted that the individual approach should be preferred given the disparate quantity and potency of drugs seized, and that the appropriate overall starting point should be 10 years and 1 month and 10 years and 8 months.
Counsel asked the court not to enhance the starting point on account of the previous trafficking conviction, submitting that it was more than 7 years ago, relying on the case of HKSAR v Li Wai Keung, CACC 178/2011 and HKSAR v Cheng Sok In, CACC 83/2007.
Counsel further emphasised the defendant’s unfortunate family background and his participation in voluntary work with the Hong Kong Christian Service, for which he received a certificate of commendation. Counsel also urged this court not to enhance the sentence for the fact that the defendant committed the present offence whilst on bail.
Mitigation letter from defendant and urine test result from the Correctional Services Department have been placed before and considered by this court.
Sentencing consideration
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, I now consider the six-step approach as set out in the case of Herry Jane Yusuph.
The present charge involves three types of dangerous drugs: cocaine, 3.11 grammes; ketamine, 17.4 grammes; and methamphetamine hydrochloride, 60.81 grammes. Where multiple drug types are involved, I first consider the combined approach as set out in HKSAR v Islam Majharul and HKSAR v Chan Yuk Leong.
First step: identifying the relevant guideline band. I identify methamphetamine hydrochloride as the base drug. It constitutes the substantial majority of the drug seized, namely, 74.8 per cent of the total weight of 81.33 grammes. Further, it has been taken more seriously due to its effect on drug abusers and the society.
The relevant guideline for trafficking in methamphetamine hydrochloride is set out in HKSAR v Huang Ruifang, which provides that trafficking in 10 to 70 grammes of methamphetamine hydrochloride attracts a starting point range of 7 to 11 years’ imprisonment. On a mathematical basis, 60.81 grammes attracts a notional starting point of 10 years and 4 months, namely, 124 months.
The relevant guideline for cocaine is also set out in Huang Ruifang. Trafficking in up to 10 grammes of cocaine attracts a starting point range of 2 to 5 years’ imprisonment. On a mathematical basis, 3.11 grammes of cocaine attracts a notional starting point of 2 years and 11 months, namely, 35 months.
The sentencing tariff for ketamine is set out in Secretary for Justice v Hii Siew Cheng. Trafficking in 10 to 50 grammes of ketamine attracts a starting point range of 4 to 6 years’ imprisonment. On a mathematical basis, 17.41 grammes of methamphetamine attracts a notional starting point of 4 years and 4 months, namely, 52 months’ imprisonment.
I now apply the three tests as crosschecks against the base drug starting point. For the absurdity test, assuming the total quantity of 81.33 grammes to be methamphetamine hydrochloride, the starting point would be 11 years and 2 months, 134 months. Assuming the total quantity to be cocaine, the starting point would be 8 years and 10 months, namely, 106 months. Assuming the total quantity to be ketamine, the starting point would be 6 years and 4 months, namely, 76 months.
For the conversion test, converting the ketamine and methamphetamine hydrochloride to their cocaine equivalent, the total cocaine equivalent is approximately 150.5 grammes. Applying the Huang Ruifang guideline for 50 to 200 grammes of cocaine, the starting point would be 10 years and 8 months, namely, 128 months.
For the ratio test, applying the proportional weight of each drug type, cocaine, 3.82 per cent; ketamine, 21.41 per cent; methamphetamine hydrochloride, 74.77 per cent. To the respective absurdity test starting points, the result is approximately 10 years and 1 month, namely, 121 months.
Having considered the results of the three tests, I am satisfied that the base drug approach is appropriate. The conversion test, 128 months, and the absurdity test, 134 months, confirm that the base drug starting point of 124 months is not excessive. I adopt an upward adjustment of 4 months to account for the cocaine and ketamine components. The adjusted notional starting point is 128 months, namely, 10 years and 8 months’ imprisonment.
Second step: the defendant’s role and culpability. As held by the Court of Appeal in Herry Jane Yusuph, the guidelines for trafficking in dangerous drugs are devised for those at the bottom of the trafficking hierarchy, namely, the courier or storekeeper.
I accept that on the facts, the defendant was acting as a courier who was waiting in a private car to deliver the drugs to a purchaser. There is no evidence to suggest that his role went beyond that of a courier. As such, there is no enhancement on account of the defendant’s role.
Third step: placement within the guideline band. Considering the overall role and culpability of the defendant, I find that the notional starting point of 128 months remains appropriate.
Fourth step: aggravating factors. The present charge involves three types of dangerous drugs, namely, cocaine, ketamine, and methamphetamine hydrochloride. The multiplicity of drug types reflects a wider market reach and enhanced danger to users. I refer to the case of Chan Yuk Leong. I enhance the starting point by 3 months on this account. The revised starting point is 131 months.
As to the defendant’s previous convictions, I note that he was convicted of trafficking in dangerous drugs on 26 February 2019 and sentenced to 32 months’ imprisonment. He was last released from custody on 27 December 2019. The trafficking conviction predated the present offence by approximately 6 years. While there has been some passage of time, the defendant was subsequently convicted of simple possession of dangerous drugs on 6 February 2024 and was fined $5,000, less than 12 months before the present offence.
Taking the defendant’s drug-related record as a whole, I am minded not to find it a constant repetition. Hence, I will not enhance the sentence in the view of the defendant’s criminal record.
On the other hand, the defendant committed the present offence whilst on bail for the offence of attempt to cause grievous bodily harm. Counsel urged this court not to enhance the sentence on this account for reason that there is always a chance that the defendant will be acquitted of the attempt offence. I disagree with counsel. I refer to the case of Wong Yun Fat. There should not be any difference between police bail and court bail, and I see no difference between whether a person is being sentenced when the past offence was convicted or not.
As such, given these facts, and given it is an exercise of my discretion, I enhance the sentence by 1 month. Therefore, the revised starting point is 132 months.
Fifth step: mitigating factors. The defendant pleaded guilty at the earliest opportunity, for which he is entitled to the full one-third discount. Applying the one-third discount to the starting point of 132 months, the sentence is about 88 months.
As for the personal circumstances and family circumstances of the defendant, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug trafficking cases. These matters cannot carry significant weight in the present case.
I note the defendant’s participation in voluntary work with the Hong Kong Christian Service, and also I have noted the certificate of commendation. Nonetheless, when I also take into account his personal background and the other factors as a whole, I am unable to render any discount on this factor.
Sixth step: totality and overall fairness. After the enhancements and deductions as stated, the sentence is 88 months’ imprisonment. I have stood back and considered the sentence as a whole. The sentence is undoubtedly severe. However, having regard to the seriousness of the offence and the defendant’s role and culpability, I am satisfied that the sentence is fair, just and balanced to the offence as well as to the defendant.
You are now sentenced to 88 months’ imprisonment, namely, 7 years and 4 months’ imprisonment.