COURT: Now, you have pleaded guilty to three charges arising from the same incident on 24 December 2023 at the podium, 6th floor, Wah Lok House, Wah Fu (I) Estate, 15 Wah Fu Road, Pok Fu Lam, Hong Kong. The 1st charge being that trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, in that you unlawfully trafficked in dangerous drugs namely 13.5 grammes of a crystalline solid containing 11.7 grammes of methamphetamine hydrochloride, 4.57 grammes of a solid containing 2.75 grammes of cocaine, 4.33 grammes of cannabis in herbal form, and 0.91 grammes of a solid containing 0.69 grammes of ketamine.
The 2nd charge is that on the same day and same place, you, without any lawful authority or reasonable excuse, had with you an offensive weapon, namely a knife.
And the 3rd charge, having custody or control of counterfeit currency notes, that on the same day and same place, you had in your custody and under your control, without lawful authority or excuse, two HK$500 currency notes, which you knew or believed to be counterfeits of currency notes.
The facts you admitted are these. On 24 December 2003, at about 3.51 pm, the police received a report of a fight at a podium, 6th Floor, Wah Lok House, Wah Fu (I) Estate, Pok Fu Lam. Upon arrival at about 3.56 pm, the police found only the defendant at the podium carrying a rucksack. He had been in a dispute with another male who had already left the scene. The police observed bloodstains on the defendant’s hoodie and bleeding over his lips. He declined medical treatment.
Upon searching the defendant, the police found a knife with a total length of 42 cm and a blade of 30 cm inside his rucksack. The defendant confirmed the knife belonged to him. He was arrested for possession of an offensive weapon in a public place. Under caution, the defendant stated that the knife was for self-defence.
The defendant was escorted to the Aberdeen Police Station. At about 5.45 pm, a further search of a pouch bag inside his rucksack revealed:
(a) 11 resealable plastic bags containing a total of 13.5 grammes of a crystalline solid containing 11.7 grammes of methamphetamine hydrochloride;
(b) seven resealable plastic bags containing a total of 4.57 grammes of a solid containing 2.75 grammes of cocaine;
(c) two resealable plastic bags containing four hand-rolled cigarettes containing 0.85 grammes of cannabis in herbal form and 3.48 grammes of cannabis in herbal form;
(d) one paper packet containing 0.91 grammes of a solid containing 0.69 grammes of ketamine; and
(e) cash totalling $11,470.00 and renminbi 12.00.
The estimated street value of all the dangerous drugs seized was around $13,911 to $15,652.
The defendant was arrested for trafficking in dangerous drugs. In two cautioned video-recorded interviews, the defendant remained silent.
On 19 January 2024, when the police were dealing with the exhibits, two HK$500 banknotes among the seized cash appeared to be counterfeits. The Commercial Crime Bureau confirmed that the banknotes displayed inferior printing quality, were printed by ink-jet printing method, and were devoid of security features. Both banknotes bore the same serial number “B5869289”.
The defendant admits and accepts that he had knowledge of all the dangerous drugs seized and was knowingly in possession of all the said dangerous drugs for the purpose of unlawful trafficking in their entirety. He further admits and accepts that he had with him an offensive weapon with no lawful authority or reasonable excuse. He also admits and accepts that he had in his custody or under his control two counterfeit $500 currency notes which he knew or believed to be counterfeits.
Background and mitigation
The defendant is now 41 years of age, having been born on 11 April 1985. He is single and educated up to Form 3. Prior to his arrest, the defendant had been employed as a foreman in the catering and meal preparation business at the Hong Kong International Airport since 2018, earning approximately $13,800 per month.
The defendant has 20 previous criminal convictions. These include two previous convictions for trafficking in dangerous drugs, 2011; eight for possession of dangerous drugs and Part I poison; one for rape in 2014; three for blackmail; one for robbery; one for common assault; two for assaulting a police officer and two for disorderly behaviour in public places. He was last discharged from prison on 7 September 2017 due to his conviction of rape.
In mitigation, counsel for the defence submitted that the last drug trafficking conviction dates back to 2011, approximately 12 years before the present offence.
Counsel submitted that the defendant’s history reflects a long-standing addiction and repeated relapse rather than a calculated commercial operation. Counsel further submitted that the defendant had a lawful job and stable income, which is relevant when assessing whether possession arose from addiction. Counsel submitted that the defendant bought the drugs with the intention to share the drugs with his friends during Christmas. A urine test dated 28 December 2003 was positive for amphetamine, which supports the defendant was consuming ‘Ice’ around the material time.
As to the 2nd charge, counsel submitted that the defendant was carrying a knife for self-protection after being attacked at Wah Fu Estate. The knife was kept inside the rucksack and was not taken out or used.
As to the 3rd charge, counsel submitted that the offence is limited to keeping the two counterfeit notes in his possession. There is no allegation that the defendant made the notes, had any printing tools or was part of any counterfeiting group. The two notes were mixed with his other money.
Letters in mitigation from the defendant and his elder brother have been placed before this court and hence considered by this court.
Sentencing considerations
The three charges are of different character and will be dealt with in turn.
1st charge, trafficking in dangerous drugs
I have considered the approach to sentencing those that trafficked 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 steps as set out in the case of Herry Jane Yusuph.
First step. The 1st charge involves four types of dangerous drugs: 11.7 grammes of methamphetamine hydrochloride, ‘Ice’; 2.75 grammes of cocaine, 0.69 grammes of ketamine; 4.33 grammes of cannabis in herbal form. Where multiple drug types are involved, the Court of Appeals in HKSAR v Islam Majharul and HKSAR v Chan Yuk Leong has endorsed the combined approach.
I identify ‘Ice’ as the base drug. It constitutes the most serious drug in terms of its effects on drug abusers and the society, and 11.7 grammes is the largest quantity by weight among the hard drugs seized.
The relevant guideline for trafficking in ‘Ice’ 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. The quantity of ‘Ice’ in the present case is 11.7 grammes. On a mathematical basis, the notional starting point for the base drug is 85 months’ imprisonment.
The relevant guideline for trafficking in cocaine is also set out in Huang Ruifang, which provides that trafficking in up to 10 grammes of cocaine attracts a starting point range of 2 to 5 years’ imprisonment. For 2.75 grammes, the notional starting point is 33 months’ imprisonment.
The relevant guideline for trafficking in ketamine is set out in the case of Secretary for Justice v Hii Siew Cheng, which provides that trafficking in up to 1 gramme of ketamine falls within the sentencer’s discretion. In respect of the quantity involved, 0.69 grammes, it warrants a sentence of 6 months’ imprisonment.
The quantity of cannabis in herbal form is 4.33 grammes. Having regard to the guideline in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, this is a very small quantity which contributes minimally to the overall sentence.
I now apply the three cross-check tests for the purposes of these tests. I take the total hard drug quantity ‘Ice’ plus cocaine plus ketamine as 15.14 grammes.
Absurdity test
If all 15.14 grammes were treated as ‘Ice’, the notional starting point under Huang Ruifang band 2, namely 10 to 70 grammes, attracts 7 to 11 years, would be 88 months. If all 15.14 grammes were treated as cocaine, the notional starting point under band 2, 10 to 50 grammes, 5 to 8 years, would be 64 months.
Conversion test
Converting the secondary drugs to ‘Ice’ equivalent. Cocaine at 2.75 grammes attracts 33 months, which is below the minimum of ‘Ice’ band number 1, 3 to 7 years for up to 10 grammes. The ‘Ice’ equivalent is therefore negligible. Similarly, ketamine at 0.69 grammes within the sentencer’s discretion has a negligible ‘Ice’ equivalent. The total ‘Ice’ equivalent is approximately 11.7 grammes, giving a notional starting point of 85 months.
Ratio test
Taking the proportions of the hard drugs by weight, ‘Ice’ equals 77.3 per cent, cocaine 18.2 per cent, ketamine 4.5 per cent, the weighted result is approximately 80 months.
The absurdity and conversion test produce results in the range of 85 to 88 months’ imprisonment, confirming the base drug approach is appropriate.
After considering the three test results, I adopt an upward adjustment of 3 months to account for the cocaine, ketamine, and cannabis components. The adjusted notional starting point for the 1st charge is therefore 88 months.
Second step. 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 and storekeeper. I accept it on the fact the defendant was acting as a courier. There is no evidence to indicate otherwise. As such, there is no enhancement on account of the defendant’s role.
Third step. Considering the overall role and culpability of the defendant, I find that the adjusted notional starting point of 88 months’ imprisonment remains appropriate.
Fourth step. I find two aggravating factors. First, the multiplicity of drug types. The defendant was trafficking in four different types of dangerous drugs, ‘Ice’, cocaine, ketamine and cannabis. As held in Chan Yuk Leong, this reflects a wider market and enhanced danger to users. I enhance the starting point by 3 months on this account.
Second, the defendant has two previous convictions for trafficking in dangerous drugs from 2011. As confirmed in Lee Ming Ho, this is plainly a matter relating to the particular offender that calls for an enhancement of sentence. A point that works in the defendant’s favour is that the last trafficking conviction predated the present offence by about 12 years.
However, in view of the offences I am currently dealing with, their variety and his criminal history, it is my view that there is a significant element of personal deterrence. This view is also supported by submissions that the defendant has started using methamphetamine about 20 years ago. He stayed away from drugs for about 9 years, but later relapsed when pressure built up and his life became unstable. And due to his fears, stress and emotional strain from the relationship with his girlfriend, he relapsed into drug use to numb those feelings. I note also that the defendant claimed to share the drugs in question with his friends during Christmas period.
In the circumstances, I enhance the starting point by a further 3 months. After the enhancement, the notional starting point for the 1st charge is 94 months’ imprisonment.
Fifth step, mitigating factors. The defendant pleaded guilty at the earliest opportunity, for which he is entitled to a full one-third discount. Applying the one-third discount, it results in 62 months’ imprisonment.
As for the personal and family circumstances of the defendant, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug trafficking cases. I note the defendant’s personal background, his long-term drug addiction and his family circumstances. However, these matters do not warrant any further reduction.
Counsel submitted that the defendant’s positive urine test is objective evidence of self-consumption. I have considered this point. However, the defendant was found in possession of four types of dangerous drugs, separately packaged in numerous resealable plastic bags and the aggregate quantity is large, too large for sharing with friends during Christmas. There is no evidence or submission that a significant proportion of the drugs was for self-consumption. In these circumstances, I decline to make any reduction on this account.
The sentence on the 1st charge is therefore 62 months’ imprisonment.
2nd charge, possession of offensive weapon in a public place
The maximum sentence for this offence on conviction upon indictment is 3 years’ imprisonment. There is no tariff for this offence. In HKSAR v Chan Kam Che [2017] HKCA 162, the Court of Appeal conceded a starting point of 9 months’ imprisonment for possession of a beef knife with a blade of approximately six inches. The court described the knife as a lethal weapon with a sharp edge and blade and upheld the starting point as entirely appropriate. In that case, the knife was found inside a rucksack.
In HKSAR v Ip Chi Wang (unreported HCMA 337/2003), cited in Chan Kam Che, the Court upheld 9 months’ imprisonment after trial for possession of an offensive weapon where the circumstances indicated the knife was carried in a concealed manner.
In the present case, the knife has a total length of 42 cm with a blade of 30 cm, approximately 12 inches. The knife was kept inside the defendant’s rucksack and was not taken out or used, notwithstanding that the defendant had been involved in a physical altercation shortly before his arrest. I also note the defendant’s explanation under caution that the knife was for self-defence.
Balancing the length of the blade against the fact that it remained in the rucksack and was not deployed, I adopt a starting point of 9 months’ imprisonment. After the one-third discount for the defendant’s timely plea, the sentence on the 2nd charge is 6 months’ imprisonment.
3rd charge, having custody or control of counterfeit currency notes
The maximum sentence for this offence is 3 years’ imprisonment. The Court of Appeal in Chinese, 香港特別行政區 訴 李浩然, Li Ho Yin (unreported CACC 128/2013), considered the sentencing approach for offences of having custody or control of counterfeit currency notes. The court held that there are no sentencing guidelines for these offences, but the length of sentence should be determined by the quantity, value and resemblance to genuine notes of the counterfeit notes involved.
In that case, 27 counterfeit $100 notes, total value of $2,700, attracted a starting point of 3 years and 6 months’ imprisonment for a repeated offender.
In Chinese, 香港特別行政區 訴 袁善輝, Yuen Sin Fai [2021] HKCA 946, the Court of Appeal considered a case involving three counterfeit $1,000 notes of total value of $3,000. Applying Li Ho Yin, the trial judge adopted a starting point of 5 months’ imprisonment. The Court of Appeal upheld the starting point as not excessive, noting the risk of counterfeit notes entering circulation.
In the present case, the defendant had custody of two counterfeit $500 bank notes bearing the same serial number with a total face value of $1,000. There is no evidence that the defendant manufactured the notes or was part of any counterfeiting operation. The notes were found in the mix among his other cash. In the circumstances, I adopt a starting point of 3 months’ imprisonment. After the one-third discount for the timely plea, the sentence on the 3rd charge is 2 months’ imprisonment.
Sixth step. I now consider the totality. The three offences, although arising from the same occasion on 24 December 2023 are of entirely different character, drug trafficking, possession of an offensive weapon, and custody of counterfeit currency notes. In principle, the sentences should be served consecutively to reflect the disdained criminality of each offence. However, I bear in mind the totality principle.
In the interest of proportionality, I order 4 months of the sentence on the 2nd charge shall run consecutively to the sentence of the 1st charge. 1 month of the sentence of the 3rd charge shall run consecutively to the sentence of the 1st charge, whilst the remainder of the sentence on the 2nd and the 3rd charges shall run concurrently. The resulting total sentence is 67 months’ imprisonment, that is 5 years and 7 months.
I have stood back and considered the sentence as a whole. The sentence is undoubtedly severe. However, having regarded the whole of the circumstances, I am satisfied that the sentence is fair, just and balanced to the offences as well as to the defendant.
Now, on the 1st charge, you are sentenced to 62 months’ imprisonment. 2nd charge, 6 months’ imprisonment. 3rd charge, 2 months’ imprisonment. 4 months of the sentence on the 2nd charge shall run consecutively to the sentence on the 1st charge. 1 month of the sentence on the 3rd charge shall run consecutively to the combined sentence of the 1st and the 2nd charges, whilst the remainder of the sentence on the 2nd and the 3rd charges shall run concurrently.
You are therefore sentenced to a total of 67 months’ imprisonment, that is 5 years and 7 months.
