COURT: Defendant, you have pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Both charges were committed a few hours apart.
The 1st Charge relates to you importing into Hong Kong from China at the Customs Arrival Hall, Lo Wu Control Point, an amount of 280.90 grammes of a crystalline solid containing 274.23 grammes of methamphetamine hydrochloride, otherwise known as “ice”.
After you were arrested, you were taken back to your residence in Fanling in the early hours on 25 November and there at home was found 271.53 grammes of a solid containing 221.42 grammes of ketamine, 7.31 grammes of a crystalline solid containing 7.13 grammes of methamphetamine hydrochloride, and 50.18 grammes of cannabis in herbal form. Also found was some packaging paraphernalia, namely an electronic scale, a spoon and resealable plastic bags.
You had admitted when you were stopped at the Customs Arrival Hall in Lo Wu that the “ice” that you had in your possession, you were to deliver to somewhere in the vicinity of a pedestrian subway in Fung Ying Sin Koon in Fanling for a reward of $6,000. As to the drugs that were found at your house, you admitted that they all were for distribution to others.
In November 2013, the retail value of the dangerous drugs was estimated to be around HK$200,000.
Defendant, you are 58 years of age. You have 11 previous convictions; four related to dangerous drugs, which are all of possession of dangerous drugs and none are similar to trafficking in dangerous drugs. Your last conviction was in 1997, now some 17 years ago.
Up until March 2013, you were receiving Comprehensive Social Security assistance, but after that date you worked as a parallel goods deliverer, earning $6,000 to $7,000 a month.
Your counsel, Mr Chase Pun, has mitigated fully and thoroughly on your behalf. I have taken into account all that he has had to say and also the letter of mitigation submitted to me, written by your daughter who is now aged 31. She informs me that you have been a good father and grandfather, responsible and, now having pleaded guilty, recognise that you clearly are responsible for your own wrongdoings.
In respect of charges for trafficking in dangerous drugs, there are guidelines laid down by the Court of Appeal.
For trafficking in “ice” the relevant case is The Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.
For the amount of drugs of “ice” between 70 to 300 grammes, a starting point after trial of 10 to 14 years is appropriate. In respect of ketamine, the relevant case is The Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1.
For cannabis the relevant case is that of The Attorney General v Tuen Shui Miing & Another [1995] 2 HKCLR 129.
For the ketamine, the amount in Charge 2 was the amount of 221.42 grammes, that falls within the bracket of 50 to 300 grammes of ketamine, where 6 to 9 years after trial as a starting point is appropriate.
For up to 10 grammes of “ice”, 3 to 7 years after trial is appropriate.
For under 2,000 grammes of cannabis, a sentence of up to 16 months is appropriate.
I turn now to deal with the individual charges. The drugs in Charge 1 was that only of the drug “ice”. The drugs in Charge 2 was a cocktail of drugs, being ketamine, “ice” and cannabis. I would take the combined approach in sentencing you for all these drugs in both charges 1 and 2.
I refer to a recent case of HKSAR v Chan Yuk Leong CACC 318/2013, where the court there discussed various forms of sentencing for a cocktail of drugs. They alluded to three tests as methods whereby the court cross-checks whether the total sentence is appropriate. In my view, the conversion test is the most appropriate test to be taken in this case; that is where the courts compare the tariffs applicable to different drugs to arrive at a conversion rate so that a single tariff for one drug could then be applied to the entire quantity.
As for Charge 1, that charge solely concerns a quantity of “ice”. The quantity of “ice” involved in that charge is 274.23 grammes of “ice”. In following the guidelines set out, that would mean a starting point of 13 and a half years’ imprisonment.
However, it is clear on the facts of this case that you had come from China and were importing the drugs into Hong Kong and therefore involved a cross-border trafficking. In following the case of Abdallah, that is an aggravating factor and the starting point should therefore be enhanced. For that aggravating factor, I enhance the sentence by 6 months, to one of 14 years’ imprisonment.
Giving you full credit for your plea of guilty, that term shall be reduced to 9 years and 4 months’ imprisonment.
As for Charge 2, there was a cocktail of drugs involved there. For the “ice” of 7.13 grammes, if taken individually, that would be a sentence of 5 years 9 months after trial and reduced to 3 years 10 months taking into account your plea of guilty. For the ketamine of 221.42 grammes, that would be a starting point of 8 years’ imprisonment, which after trial would be reduced to 5 years 4 months. The quantity of cannabis involved is of a nominal amount and I will ignore that for the purposes of sentencing, as it was only 50.18 grammes.
For the “ice”, adding it to the first charge of quantity of “ice” would make a total amount of “ice” of 281.36 grammes, that would still fall within a bracket of 13.6 years. For the ketamine, if I converted ketamine to a comparable amount of “ice” in terms of years of imprisonment, that would be approximately 30 grammes of “ice”.
Therefore, if I converted the whole amount of drugs into “ice” it would be 30 grammes, plus 281.36 grammes, which equals 311.36 grammes, that would be equivalent to a starting point of 14 years after trial for the total amount of drugs involved in both charges. I must, however, still consider onto that an enhancement of 6 months for the importation.
Therefore the total sentence for these two charges as a starting point I would take would be 14 years 6 months’ imprisonment. Giving you full credit for your plea of guilty, that term should be reduced to 9 years and 6 months’ imprisonment.
Defendant, for Charge 2, I would have taken a starting point of 8 years’ imprisonment after trial and reduced that term to 5 years 4 months’ imprisonment.
I order 2 months of Charge 2 to run consecutive to Charge 1, which should make a total of 9 years and 6 months’ imprisonment.
MR PUN: Sorry, my Lady, I missed the individual sentence for Charge 2.
COURT: 8 years starting point, 5 years 4 months’ after trial.
MR PUN: Yes, very good, I’m grateful.
COURT: So let me just rephrase the terms.
The sentencing point is 14 years for Charge 1, reduced to 9 years 4 months. A starting point of 8 years on Charge 2, reduced to 5 years 4 months.
The totality starting point would be 14 years 6 months, which would be reduced to 9 years 8 months.
Therefore 4 months of Charge 2 is to run consecutive to Charge 1. Making a total term of 9 years and 8 months imprisonment.