COURT: Defendant plead guilty to two counts in the Magistrates’ Court. 1st count is trafficking in dangerous drugs. He was charged on the 11th day of November 2023, outside No. 21 Yuk Yat Street in Hung Hom, trafficked in dangerous drugs, namely, 32.47 grammes of a crystalline solid containing 31.91 grammes of methamphetamine hydrochloride, 28.25 grammes of a solid containing 23.7 grammes of ketamine and 6.14 grammes of a solid containing 4.42 grammes of cocaine.
In the 2nd count, he was charged with possession of dangerous drugs. Charging him on the same day and the same place, possessed dangerous drugs, namely, 0.9 grammes of a crystalline solid containing 0.86 grammes of methamphetamine hydrochloride and 0.03 grammes of a solid containing methamphetamine.
The facts are quite straightforward. Summary of Facts read as follow.
At about 1652 hours on 11 November 2023, police officers intercepted defendant outside No. 21 Yuk Yat Street, Hung Hom, Kowloon. Defendant was carrying a black shopping bag. A search was conducted on defendant and his black shopping bag. Upon search, following items were found from defendant’s black shopping bag:
(1) P1: one glass bottle with two openings, one glass tube with a bulb shape at one end and one glass tube with a bulb shape at one end and one plastic tube. All four items were examined and found to contain a total of 0.03 grammes of a solid containing methamphetamine.
(2) P2: one tissue paper wrapping a transparent plastic bag containing dangerous drugs, namely, one plastic bag containing 0.9 grammes of a crystalline solid containing 0.86 grammes of methamphetamine hydrochloride.
(3) A black waist bag, which contained the following items:
(I) Six foil packs containing a total of 59 tablets containing clozapine (a listed Part 1 poison).
(II) P3: two plastic bags containing a total of 27.5 grammes of a crystalline solid containing 27.5 grammes of methamphetamine hydrochloride.
(III) A small bag containing:
(i) P4: eight plastic bags containing a total of 13.4 grammes of a solid containing 11.3 grammes of ketamine.
(ii) P5: five plastic bags containing a total of 3.46 grammes of a solid containing 2.90 grammes of ketamine.
(iii) P6: four plastic bags containing a total of 2.75 grammes of a solid containing 2.30 grammes of ketamine.
(IV) Another small bag containing:
(i) P7: a transparent resealable plastic bag containing one plastic bag containing 0.25 grammes of a solid containing 0.18 grammes of cocaine.
(ii) P8: nine plastic bags containing a total of 2.56 grammes of a solid containing 1.88 grammes of cocaine.
(iii) P9: seven plastic bags containing a total of 8.64 grammes of a solid containing 7.2 grammes of ketamine.
(iv) P10: 13 plastic bags containing a total of 3.08 grammes of a solid containing 2.18 grammes of cocaine.
(v) P11: one plastic bag containing 0.25 grammes of a solid containing 0.18 grammes of cocaine.
(4) A black and beige bag with the word “LUCKY” printed thereon, which contained three plastic bags containing a total of 4.97 grammes of a crystalline solid containing 4.41 grammes of methamphetamine hydrochloride (“P12”).
Arrested and cautioned, defendant had nothing to say. Two mobile phones and $2,332.30 were seized from defendant upon arrest. House search was conducted at defendant’s residence with no contraband found.
Estimated retail value of the dangerous drugs particularised in Charge 1 are as follows: methamphetamine: HK$15,456; ketamine: HK$17,572l; cocaine: HK$6,152 (powder form) or HK$8,172 (in crack form).
Defendant admits and accepts that at all material times, he was unlawfully trafficking in all the dangerous drugs contained in P3 to P12, namely, 32.47 grammes of a crystalline solid containing 31.91 grammes of methamphetamine hydrochloride, 28.25 grammes of a solid containing 23.7 grammes of ketamine and 6.14 grammes of a solid containing 4.42 grammes of cocaine.
Defendant admits and accepts that at all material times, he was in possession of the dangerous drugs contained in P1 to P2, namely, 0.9 grammes of a crystalline solid containing 0.86 grammes of methamphetamine hydrochloride and 0.03 grammes of a solid containing methamphetamine.
Defendant was born in 1978. He is now 48. He does have previous convictions, 14 of them. None of them related to dangerous drugs. He was arrested in 2021 for offences relating to triad society and was placed on police bail. While he was on bail, he committed the present offence. He had received education up to secondary school and at the time of the arrest, he was a taxi driver. He was married but divorced now.
Now, in the 1st count, it involved three types of drugs: ‘Ice’, cocaine and ketamine. ‘Ice’ is the largest quantity and the most potent drug among the three. For 31.91 grammes of ‘Ice’, pure from mathematical calculation, it comes around to 8 years and 6 months.
I have to consider to what extent the 8½ years for the quantity of ‘Ice’ should be enhanced as a starting point for the three types of drugs. For 23.7 grammes of ketamine, sentence will be around 4 years and 8 months. For 4.42 grammes of cocaine, according to the guideline, up to 10 grammes of cocaine, it is 2 to 5 years.
In the case of Yau Kai Fung, CACC 208/2024, paragraph 44 of the judgment:
“The quantity of cocaine is relatively small, namely, 1.95 grammes. It falls within the first band under the sentencing guideline for trafficking in heroin or cocaine, namely, up to 10 grammes, which carries a sentencing range of 2 to 5 years’ imprisonment. This band is structured both to provide a deterrent effect through the applicable range of imprisonment and to confer on the sentencing court a discretion, where appropriate, to adopt a starting point below 2 years’ imprisonment in cases involving very small quantity of the drugs. In such circumstances, a sentencing court should undertake an evaluative assessment in determining an appropriate starting point rather than simply engage in a purely mathematic exercise that treats 2 years as the baseline for sentencing.”
The cocaine in this case is 4.42 grammes. According to the calculation in ratio test, which helpfully set out in the written mitigation prepared by Mr Yuen, it comes to 8½ years as well, so the same as for 31.91 grammes of ‘Ice’. It cannot be right for me to use 8½ years as a notional starting point after trial for three types of drugs.
In the case of Yau Kai Fung, quote from paragraph 40:
“Under Herry Jane Yusuph, at Steps 1 to 3 of the structured approach, the court must identify the applicable guideline bands, assess the offender’s role and culpability, and fix a notional sentence after trial. In cases involving a cocktail or combination of drugs, this exercise necessarily requires translating more than one band into a single notional starting point. The primary task of fixing that notional sentence remains a matter of principled evaluative judgment, informed by the guideline authorities. Each drug is first matched to its own guideline band. The sentencing court then assesses, in composite terms, the overall seriousness of the offending, considering both the potency and the quantity of each drug, and the relative contribution of hard and soft drugs. It then identifies a single notional sentence after trial that falls within a range consistent with the engaged bands.
Within that structure, the ratio test is appropriately deployed in a secondary role as a cross-check. When properly applied, it uses, rather than displaces, the drug specific guideline structure. It is less complex and elaborate than the conversion test, and more precise and structured than the absurdity test. It may assist the court in testing the provisional notional sentence for internal coherence and consistency with the underlying guideline bands. However, it should not be treated as a substitute for the guideline-based evaluative exercise required at Steps 1 to 3.
The ratio test nevertheless has limitations and must remain only as a cross-check. Applied mechanically, it may yield comparatively severe results. The ratio test, while conceptually straightforward and consistent with the differentiated guidelines for hard and soft drugs, is to be used only in that secondary role.”
I bear in mind the significant quantity of ketamine in this case and the not-negligible quantity of cocaine. I adopt 10 years as the notional sentence after trial. In doing so, I accept your role as a courier.
There is one aggravating factor in this case in that you commit the present offence while you were on bail for acting as a member of triad society. For that aggravating factor, I enhance the starting point that I have adopted by 6 months.
There is nothing in your background which amounts to any mitigation factor. The only mitigation in your case is only your plea of guilty. I will give you one-third discount for that, and therefore the sentence on the 1st count that I passed on you is one of 7 years.
As to Count 2, you are found in possession of inhaling apparatus. Though there are four of them, and also one tissue paper containing 0.86 grammes of methamphetamine hydrochloride. I adopt 6 months as starting point for this simple possession charge in view of the circumstances that the latent risk is relatively low.
For your plea, I reduce it to one of 4 months. I further order this 4 months to run concurrently with the sentence on the 1st count.
So for both offences which you have plead guilty, the total sentence is one of 7 years’ imprisonment.
