HKSAR v. Ahmed Waqas

DCCC 1555/2024

[2026] HKDC 1609

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1555 OF 2024

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REASONS FOR SENTENCE

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1.The defendant was convicted after trial of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.The particulars of the offence are that, on 19 August 2024, on a private car bearing registration mark ZL3504, at the parking space of Parking Meter No. 29217B, Wing Lai Road, Tseung Kwan O, New Territories, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 17.09 grammes of a solid containing 13.97 grammes of cocaine and 5.26 grammes of a solid containing 4.48 grammes of ketamine.

Facts

3.On 19 August 2024, at around 2:56 am, PW1, PW2 and their colleagues saw a white private car bearing registration mark ZL3504 (“the Vehicle”) parked beside a metered parking space with its headlights off.  They approached the Vehicle and found that the defendant was sitting in the driver’s seat.  Upon searching the Vehicle, PW2 found an opened blue rectangular Tempo tissue box in the lower compartment area of the centre console between the front-passenger seat and the driver’s seat.  The Tempo tissue box was placed lengthwise over the larger compartment of the storage tray, with the opening of the tissue box facing upwards.

4.The following suspected dangerous drugs were found inside the tissue box:

(i)  One transparent plastic re-sealable bag (marked “A 黃家勇”, transliterated: Wong Ka Yung”), containing:

(a)  25 small transparent plastic re-sealable bags, which contained pellets suspected to be dangerous drugs. Each small bag was stapled at the opening; and

(b)  1 small transparent plastic re-sealable bag with a red seal, which contained pellets suspected to be dangerous drugs (collectively Exhibit P6).

(ii)  One transparent plastic re-sealable bag (marked “B 李浩明”, transliterated: Lee Ho Ming), containing:

(a)  20 small transparent plastic re-sealable bags, which contained pellets suspected to be dangerous drugs.  Each small bag was stapled at the opening; and

(b)  4 small transparent plastic re-sealable bags with a red seal, which contained pellets suspected to be dangerous drugs (collectively Exhibit P7).

(iii)  One transparent plastic re-sealable bag containing 9 small transparent plastic re-sealable bags with a red seal, which contained a crystalline substance suspected to be dangerous drugs (see: Exhibit P1(2), (5)) (Exhibit P8).

5.Exhibits P6-P8 were confirmed by the Government Chemist to contain:

Exhibit P6: 9.57 grammes of a solid containing 7.80 grammes of cocaine;

Exhibit P7: 7.52 grammes of a solid containing 6.17 grammes of cocaine;

Exhibit P8: 5.26 grammes of a solid containing 4.48 grammes of ketamine.

6.Further investigation revealed that the defendant had, on 12 August 2024, entered into a hire-purchase agreement for a white Toyota Prius (“the Prius”) with a company called Joy United Auto Limited (“the Company”) at a price of HK$198,000. The Prius was to be paid for in 36 monthly instalments of HK$5,500.  Until the full price was paid, the Prius belonged to the Company.

7.At the time of the aforesaid hire-purchase agreement, the vehicle’s registration mark was VL 9458, and its chassis number was ZVW30-1658167.  The Prius was handed over to the defendant on 12 August 2024.

8.The Drug Street Valuation Report of DSIP Li Winkie was adduced in evidence (Exhibit P3).  The average retail price of cocaine powder in August 2024 was HK$715 per gramme, and that of ketamine was HK$483 per gramme.

9.The retail price of the aforesaid cocaine sold at street level to drug abusers in August 2024 was HK$12,219 (powder).  The retail price of the aforesaid ketamine was HK$2,541.

Mitigation

10.The defendant is 29 years old.  He is educated up to Secondary 1. He is married and has a 3-year-old son.  His parents and siblings are all in Hong Kong. He worked as a construction worker.  He has a clear record. The defendant has been remanded in custody since 20 August 2024 and he does not have a drug habit.

11.Mr Allen submitted that there was nothing sinister about the background of the present case.  It was a stop-and-search case by police officers at the scene, and that a substantial body of evidence had been agreed by the defence.  He invited the Court to sentence the defendant as leniently as possible.

Sentence

12.In sentencing, I have considered the charge, the facts of the case and the mitigating submissions advanced by Mr Allen.

13.The present case involved trafficking in more than one type of dangerous drugs, namely 17.09 grammes of a solid containing 13.97 grammes of cocaine, and 5.26 grammes of a solid containing 4.48 grammes of ketamine.

14.In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the Court of Appeal laid down a six-step sentencing approach for trafficking in dangerous drug cases. As the Court of Appeal recapitulated in HKSAR v Yau Kai Fung [2026] HKCA 885, it involves:

(1)  identify the relevant guideline band by reference to the type and quantity of drug;

(2)  assess the defendant’s role and overall culpability based on the evidence before the court;

(3)  identify where in that guideline band, or exceptionally outside it, the defendant should properly fall;

(4)  identify and reflect any aggravating factors that justify an upward adjustment from that provisional position;

(5)  identify and assess any mitigating factors that justify a downward adjustment from the notional sentence after trial; and

(6)  stand back and review the overall sentence to ensure that the court guards against an overall sentence that, through the aggregation of counts or aggravating factors, is inflated or out of proportion to the defendant’s criminality.

15.The Court of Appeal in Yau Kai Fung also stated that, in light of the structured approach set out in Herry Jane Yusuph and the revised sentencing guidelines in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138, when sentencing a case involving multiple dangerous drugs, the absurdity and conversion tests no longer serve any useful or principled purpose as cross-checks.  The ratio test, while conceptually straightforward and consistent with the differentiated guidelines for hard and soft drugs, is appropriately deployed in a secondary role as a cross-check.

16.According to R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 (which is the same as that under the revised sentencing guidelines in Huang Ruifang (No 3) for present purposes), the applicable guideline band for trafficking in 13.97 grammes of cocaine is 5 to 8 years’ imprisonment.  On a pure mathematical basis, it would yield a notional starting point of around 63.5 months’ imprisonment. 

17.According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the applicable guideline band for trafficking in 4.48 grammes of ketamine is 2 to 4 years’ imprisonment.  On a pure mathematical basis, it would attract a notional starting point of around 33 months’ imprisonment. 

18.The Court of Appeal in HKSAR v Yip Wai Yin & Another [2004] 3 HKC 367 stated that a sentencing court may adopt either the “individual” approach or the “combined” approach when sentencing for trafficking in multiple dangerous drugs.  The Court of Appeal further stated in paragraph 10 that:

“10. Whichever approach is appropriate will depend on the circumstances of the case, but we are of the view that the combined approach will often be the correct one to enable the judge to sentence fairly, realistically and in a commonsense manner.”

19.Taking into account the overall circumstances of the present case, including the nature and quantity of the dangerous drugs and the aggregate of the notional starting points stated above, I am of the view that the “combined” approach is to be preferred.

20.I shall apply the “combined” approach and adopt 13.97 grammes of cocaine as the base drug.

21.The bulk of the dangerous drugs in the present case was cocaine.  It was packed in two larger plastic bags which in turn contained 26 and 24 smaller plastic bags respectively.  The ketamine was packaged in one larger plastic bag which in turn contained nine smaller plastic bags.  All were stored in an opened tissue box in the lower compartment of the centre console of the Vehicle.

22.Although the dangerous drugs were divided into numerous smaller packs, which tends to suggest that the defendant was in a position to sell or distribute to others separately, the smaller packs were contained in three larger plastic bags, two of which bore Chinese names written on them.  This gives rise to the suggestion that the defendant was merely a courier.  At the same time, there is no admissible confession made by the defendant in the present case.  The sum of HK$680 seized in the present case also does not conclusively point to the proposition that the defendant was an actual/ direct trafficker.

23.Taking into account the defendant’s role and overall culpability, I adopt a starting point of 63 months’ imprisonment.

24.Having regard to the quantity of the ketamine and the overall circumstances of the case, I would enhance the base starting point of 63 months’ imprisonment by 7 months to reflect the presence of ketamine, and a further 2 months to reflect the aggravating factor that the defendant trafficked in two types of dangerous drugs.

25.On the other hand, I find there are no mitigating factors that warrant any reduction to the sentence.

26.Lastly, applying the totality principle, I reduce the total enhancement from 9 months to 6 months, resulting in a term of 69 months’ imprisonment.

27.By way of cross-check, the ratio test would yield a figure of around 63.9 months’ imprisonment, calculated as follows.  The total quantity of narcotics in the present case was 13.97g + 4.48g = 18.45g.  Assuming this whole quantity were cocaine, it would yield a starting point of around 67.6 months’ imprisonment.  Assuming this whole quantity were ketamine, it would yield a starting point of around 53 months’ imprisonment.  Cocaine constitutes approximately 75.7% of the total narcotics, whereas ketamine constitutes approximately 24.3%.  

Dangerous Drug	Starting Point	Proportion	Starting Point according to Ratio
Cocaine	67.6 months	75.7%	51.1 months
Ketamine	53 months	24.3%	12.8 months
			63.9 months

28.I am aware that the imprisonment term of 69 months exceeds the figure produced under the ratio test.  However, as pointed out by the Court of Appeal in Yau Kai Fung:first, the ratio test has limitations and must remain only as a cross check.  Second, the ratio test does not take into account one’s role and culpability or the aggravating factor of trafficking in multiple drugs.

29.I am satisfied that the total sentence of 69 months’ imprisonment is fair, just and balanced having regard to all the circumstances of the present offence and of the defendant.