COURT: The second defendant has pleaded guilty to two counts, one count of trafficking in a dangerous drug, namely 66.19 grammes of a powder containing 31.53 grammes of ketamine, 43.10 grammes of a crystalline solid containing 42.01 grammes of methamphetamine hydrochloride, and 30.84 grammes of a solid containing 30.29 grammes of cocaine.
In the 2nd count, he also pleaded guilty to possession of a dangerous drug, which is namely 94 millilitres of a liquid containing 0.24 grammes of methamphetamine.
On the day of the offence, police officers, acting on information, mounted an anti-dangerous drug operation at the address specified in the indictment. When the door of the subject premises was opened by the 1st defendant in this case, police officers gained entry and executed a search warrant.
Inside the flat was found three persons, and the 2nd defendant in this case, Chan Yuk-leong, was one of them. The 2nd defendant immediately picked up a yellow/white recycled bag, which is Exhibit 1, and tried to rush into the toilet. When the police stopped the 2nd defendant, inside the bag which he was holding was subsequently found to contain the dangerous drugs the subject matter of the 1st count, subdivided into many plastic bags.
On the 2nd defendant’s person were found three keys, one of which could open the door of the flat. A search of the premises revealed that from a drawer of the bedside table more drugs were found, and also in a blue bag was found many resealable plastic bags and stickers. Also found on the premises were electronic scales and finger covers, a metal plier, a spoon, and also “Ice” inhaling devices. Inside the four “Ice” inhaling devices were found a total of 94 millilitres of liquid containing 0.24 grammes of methamphetamine which became the subject of the 2nd count.
Thus it is clear that the premises was used not only for consuming dangerous drugs, but also for weighing and packaging them.
The street value of the total of the dangerous drugs seized was in the region of HK$76,920.
The defendant is aged 26 and has a clear record. In mitigation, Mr Ma says that the defendant was suffering from work pressure and had fallen into the company of bad peers and therefore committed the present offences, and he is very remorseful.
The only mitigation in this case is really the fact that the defendant had indicated his willingness to plead at an early stage and therefore court’s time had not been wasted.
In the case of HKSAR v Yip Wai Yin, and Another [2004] 3 HKC 367 the Court of Appeal dealt with sentencing for trafficking in dangerous drugs where the drugs was in the form of a cocktail of drugs. The court there looked at a combination of previous cases where an individual approach - that means where the sentencing judge looks at each component of the cocktail and then added up the different sentences - and also looked at a combined approach where the court looks at the overall quantity of drugs rather than in individual parcels.
The Court of Appeal in that case, the presiding judge was the Honourable Chief Judge of the High Court, Mr Justice Ma, as he then was, approved the combined approach which was used in the case of HKSAR v Cheung Kwok Leung, Lawrence, which was an unreported case, CACC 539/2002, where the court in that case said that they took into account the more or most serious drug, and they were not referring to quantities but to seriousness in terms of the potency of the drug, and then after determining the sentence for that more serious drug, then made an upward adjustment to take into account the less serious drugs in the cocktail to arrive at a proper sentence.
However, the Court of Appeal in Yip Wai Yin did say that whichever approach - that is, whether it is the combined approach or the individual approach - is appropriate will depend on the circumstances of the case, and I quote here at paragraph 10 of the judgment that:
“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.”
In this case I have decided to adopt the combined approach as stipulated in the case of Yip Wai Yin because I think it would be unfair in this case to adopt an individual approach because the combined sentence would be in the region of 20 years as a starting point.
In this case the cocktail of drugs are ketamine, methamphetamine hydrochloride and cocaine, so I will take the methamphetamine hydrochloride as the base of the sentence.
In this case there is 42.01 grammes of methamphetamine hydrochloride. In the case of Ching Kwok Hung [1991] 2 HKLR 125, the sentencing guidelines for methamphetamine hydrochloride, the Court of Appeal had recommended that for trafficking in 10 to 70 grammes of methamphetamine hydrochloride, a recommended guideline sentence would be 7 to 10 years after trial.
So for the amount in this case, which is 42.01 grammes, I consider that a starting point sentence appropriate would be 8½ years. Making an upward adjustment to take into account the other drugs, particularly the cocaine and ketamine, I consider that the overall sentence should be one of 12 years’ imprisonment.
Giving the defendant the full one-third discount, he is therefore sentenced to 8 years’ imprisonment on the 1st count.
As for the 2nd count, I consider that an appropriate sentence would be 18 months’ imprisonment, reduced to 12 months because of his plea.
So the defendant goes to prison for 12 months on the 2nd count, but it will be served concurrently with that of the 1st count.
So in total, the defendant will go to prison for 8 years.
Please refer to CACC318/2013 for the relevant appeal(s) to the Court of Appeal.