COURT: Defendant, on 6 November 2023, you pleaded guilty to five charges of trafficking in dangerous drugs before a magistrate at the Eastern Magistracy. As a result of your pleas of guilty, you were committed here to the Court of First Instance for sentence.
The 1st charge of trafficking was committed on 6 December 2021 whilst the Charges 2 to 5 were committed on 22 December 2021.
In Charge 1, you admitted that, on 6 December 2021, at the rear lane, No 41 D’Aguilar Street, you unlawfully trafficked in two plastic bags containing 1.07 grammes of a solid containing 0.90 grammes of ketamine.
In Charge 2, you admitted that, on 22 December 2021, outside No 524 Lockhart Road, Causeway Bay, you unlawfully trafficked in two plastic bags containing 1.06 grammes of a solid containing 0.91 grammes of ketamine.
In Charge 3, you admitted that, on 22 December 2021, on an occasion other than that referred to in the 2nd count, at the same address as in the 2nd count, you trafficked in 28 plastic bags containing 17.1 grammes of a solid containing 15.3 grammes of cocaine and 93 plastic bags containing 114.5 grammes of a solid containing 93.7 grammes of ketamine.
In Charge 4, you admitted that, on 22 December 2021, at Room 1901, 19th Floor, M1 Hotel at Nos. 28-32 Portland Street, Yau Ma Tei, you trafficked in 22.6 grammes of a solid containing 17.2 grammes of cocaine; 444.1 grammes of a solid containing 362.4 grammes of ketamine; and 249 grammes of a crystalline solid containing 247 grammes of methamphetamine hydrochloride, otherwise commonly known as ‘Ice’.
In Charge 5, you admitted that, on 22 December, whilst you were at Wan Chai Police Station, No. 1 Arsenal Street, you trafficked in one plastic bag which contained 13.9 grammes of a solid containing 11.5 grammes of ketamine.
I turn now to the facts of this case. You admitted as correct the Summary of Facts dated 1 November 2023 and as amended by the underlining and dated 27 June 2024.
In Charges 1 and 2, a decoy police officer pretending to be a drug buyer, called the mobile phone number 90841142 on 6 and 22 December 2021 to purchase drugs (these refer to Charges 1 and 2). He met with you, defendant, at the offence locations in both charges and you then sold him the drugs as quantified in the charge. In Charge 1, he paid you $800; in Charge 2, he paid you marked money of $750.
After purchasing the drugs in Charge 2, the operation turned overt. You were arrested. You admitted the trafficking offence under Charge 2. Upon a body search, the drugs as quantified in Charge 3 were found from your handbag. Also found was a hotel key card and the police marked money of $750, cash of $53,413.90 and two mobile phones.
You were escorted back to the hotel room at M1 Hotel. The key card found in your possession was used to open the hotel room door. Upon search of the hotel room, in a locked piece of luggage, was found the quantity of drugs in Charge 4. Also found were three electronic scales, one electric heat sealing machine, a metal sieve, two pairs of scissors, a cutter, a large amount of empty transparent resealable plastic bags, cash of $4,000, a hotel receipt in your name and a tax receipt in your name.
You were arrested and cautioned. You admitted that all the items found, as I have mentioned, were for drug trafficking.
You were then taken to Wan Chai Police Station where a thorough body search was conducted. Inside your brassiere, the quantity of drugs as stated in Charge 5 was found. You had rented this hotel room since 1 October 2021.
The estimated street value of all the drugs seized in the five charges in December 2021 was $320,643 for the drug ketamine, $42,955 for the drug cocaine and $150,396 for the drug ‘Ice’. The total estimated value of all the drugs was in the sum of $513,994.
I turn now to your background and mitigation. Defendant, you are 34 years of age, single. You are of clear record, that is you have no previous convictions. You have been educated to Secondary Form 5 level. You lived with your family before your arrest, that is your parents, elder sister and brother. You have had various jobs ranging from a real estate agent, a saleslady and a part-time sales person in a finance company. Your monthly salary was about $18,000.
Defendant, your counsel, Mr Michael Cheung, has said that you committed this very serious crime because you were in debt as a result of your gambling habit. He says that you eventually went to the point of no return and had to pay off a debt of $1 million. However, fortunately with your family’s support, to which your mother loaned you $100,000 and your sister loaned you $800,000, you were able to pay off those debts in one go.
I am informed that your sister, who is divorced, spent all her fortune to help you pay off your debt. As you felt your future life is insecure, you took the risk to traffic in drugs to pay off your sister’s loan to you. You trafficked in drugs at the instigation of bad friends to make quick money regardless of the severe consequences under the law.
Before your arrest, you worked as a salesperson for a finance company and helped make more money to repay the money owed to your sister as soon as possible. Since your remand in prison, you have found religion and you hope to start afresh when you have served your term of imprisonment.
Father John Witherspoon has written a letter in mitigation. He informed this court how you contributed to his campaign by submitting your story of how your gambling background led to the involvement in these offences of trafficking and the sad effects it has had upon you and resulted in your detention. Father John asks for a 3-month deduction for your participation in this anti-drug campaign.
Mr Cheung, your counsel, has informed me that you had offered to assist the prosecution as a prosecution witness but, despite your efforts, they were in vain. Mr Cheung has said that he accepts that this may not entitle you to a reduction but you had attempted to give assistance.
I have read the letters of mitigation written by yourself and your sister. You both express deep remorse for your involvement in the serious crime and your reason for committing this crime is clearly trying to make quick money to pay off your sister.
I turn now to deal with your sentence. The sentence approach to sentencing in drug trafficking cases are the ones laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in Lee Ming Ho [2024] HKCA 150.
There are five charges of trafficking in dangerous drugs. In sentencing you, defendant, I shall add up the total amount of drugs in the five charges and arrive at a total sentence, then sentence you for each individual charge reflecting the total global sentence.
There were three types of drugs involved in these five charges of trafficking. They were ketamine, cocaine and methamphetamine, otherwise known as ‘Ice’. In sentencing you, defendant, I adopt the global approach by adding up all the drugs in the five charges, and then taking the combined approach to convert all the drugs to ‘Ice’ which is the most potent drug.
The tariff case for the drug ketamine is set out in the authority of the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The tariff case for the drug cocaine is set out in Lau Tak Ming [1990] 2 HKLR 370. The tariff case for the drug ‘Ice’ is set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
The total amount of ketamine was 469.41 grammes which was trafficked. Pursuant to the tariff case of Hii Siew Cheng, this amount falls within the band of 300 to 600 grammes. The Court of Appeal decided the starting point should fall within the band between 6 to 9 years’ imprisonment. 469.41 grammes by itself would, arithmetically speaking, attract a starting point of imprisonment of 10 years and 6 months. In converting that amount to ‘Ice’, that would be equivalent to about 64 grammes of ‘Ice’.
The total amount of 32.5 grammes of cocaine was trafficked. Pursuant to the tariff case of Lau Tak Ming, that amount falls in the band between 10 to 50 grammes where the Court of Appeal decided that the starting point should be between 8 to 12 years’ imprisonment. 32.5 grammes would, arithmetically speaking, attract a starting point of 6 years and 6 months’ imprisonment. In converting that amount to ‘Ice’, that would be equivalent to about 10 grammes of ‘Ice’.
The total amount of 247 grammes of ‘Ice’ was trafficked. Pursuant to the tariff case of Tam Yi Chun, that amount falls in the band between 70 to 300 grammes. The Court of Appeal decided the starting point should be between 11 years to 15 years’ imprisonment. 247 grammes would, arithmetically speaking, attract a starting point of 14 years’ imprisonment.
If the ketamine and cocaine were converted to ‘Ice’, that would amount to 74 grammes of ‘Ice’, that is the 64 grammes plus 10 grammes. The total of all drugs in the five charges, if they were ‘Ice’, would equal to 74 plus 247, and which would equal to 321 grammes of ‘Ice’ to which you were trafficking in all five charges.
Now I turn to the application of the principles and steps as laid down in the case of Herry Jane Yusuph.
The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. Pursuant to the tariff case of Tam Yi Chun, where 321 grammes of ‘Ice’ is trafficked, the band falls between 300 and 600 grammes and the starting point should be between 15 years to 20 years’ imprisonment. Here the amount of 321 grammes by itself would, arithmetically speaking, attract a starting point of 15 years and 3 months’ imprisonment.
The second step is to assess the role and culpability of the defendant based on the evidence. The defendant, you have shown here to be dealing in dangerous drugs to others in the sense that you were actually or directly trafficking. You had sold the drugs to the undercover police officer on two separate occasions. When you were arrested, you were found with 53,000-odd dollars cash on your person. The transaction made on both occasions with the undercover officer was in cash.
The cash found on you was clearly in connection with your drug trafficking activities. $4,000 cash was found locked together with the other drugs in the hotel room. Those drugs in the hotel room were also for the purposes of trafficking, that is selling to others. It appears that you would have made quite a substantial gain from your trafficking in drugs.
The third step is to identify where in the relevant band you come given the circumstances of the offence and your role. Taking into account the third band, I have considered that an appropriate starting point should be one of 15 years and 5 months’ imprisonment.
The fourth step is a consideration of any aggravating factors. In this case, defendant, there are a multiplicity of drugs involved, that is ketamine, cocaine and ‘Ice’. You, defendant, a trafficker, would be able to cater to a far wider market than the trafficker in only one kind of drugs, and as such an enhancement of sentence of 1 month is warranted, making the notional starting point 15 years and 6 months’ imprisonment.
The fifth step is to consider all mitigating factors. Bearing in mind that in this particular branch of sentencing, personal circumstances would generally count for little. That obviously includes your circumstances as to why you committed this offence. Those count for none.
Defendant, you have contributed to the campaign by sharing your story on the Voice for Prisoners website as well as Father John’s own anti-drug website. As the Court of Appeal has said in its judgments in HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249 and HKSAR v Akinyi Grace Sylvia, CACC 324/2015, assessing the value, if any, to Hong Kong of an applicant’s participation in Father Witherspoon’s programme is a matter that the executive is best equipped to perform, to which I shall do.
Defendant, I am informed by Mr Cheung you disclosed or tried to disclose information related to the drugs to the police sometime in January 2024 but the information was of little value. Mr Cheung informs me that you did not indicate to the police your intention to offer assistance until late 2023. Defendant, you were arrested in December 2021. You did not begin to offer assistance until at least two years later. It is of course no surprise that whatever you had attempted to offer was of little value. Your assistance has not borne fruit and led to nowhere. I am therefore satisfied that no discount can be afforded to your sentence as no positive assistance was rendered.
The most significant mitigating factor is, defendant, your plea of guilty at the earliest opportunity, and as a result of that you will benefit from a one-third discount to your sentence.
The starting point I have taken, being 15 years and 6 months, shall be reduced to that of 10 years and 4 months’ imprisonment, to which you shall serve.
Defendant, you are charged with five separate offences and I must sentence you separately for all offences to reflect that total sentence I have just stated.
Defendant, for Charge 1, you were trafficking in 0.90 grammes of ketamine. That amount falls in the band of up to 1 gramme, which is within my discretion. In the circumstances of this case, I take a starting point of 2 years’ imprisonment and reduce that to 1 year and 4 months’ imprisonment.
On Charge 2, you were trafficking in 0.90(0.91?) grammes of ketamine. That amount falls in the band of up to 1 gramme, which again is within my discretion. In the circumstances, had you been convicted after trial, I would have taken a starting point of 2 years. I reduce that term to 1 year and 4 months’ imprisonment.
I turn now to Charge 3. This charge involved two different kinds of drugs, that is ketamine and cocaine. I adopt the conversion approach and convert the ketamine to cocaine as that is the more potent drug. Defendant, you were trafficking in 93.7 grammes of ketamine. The amount falls in the band of between 50 to 300 grammes which warrants a sentence of between 6 to 9 years’ imprisonment. I will take 6 years and 6 months’ imprisonment as the appropriate and notional starting point. In converting that amount to the drug cocaine, that would amount to about 33 grammes of cocaine. Adding that amount to 15.3 grammes of cocaine totals 48.3 grammes of cocaine. That amount falls in the band of between 10 to 50 grammes, which warrants a sentence of between 5 to 8 years’ imprisonment.
I take 7 years and 9 months’ imprisonment as the notional starting point and after a one-third discount reduce that term to 5 years and 2 months’ imprisonment for Charge 3.
I turn to Charge 4. There were three types of drugs in Charge 4, ketamine, cocaine and ‘Ice’. I adopt the conversion approach and convert the ketamine and cocaine to the more potent drug ‘Ice’. The quantity of ketamine was 362.4 grammes. That amount falls in the band of between 300 to 600 grammes, which warrants a sentence of between 9 to 12 years’ imprisonment. For this quantity of ketamine, that would attract a term of 9 years and 6 months’ imprisonment. In converting the ketamine to ‘Ice’ that would amount to about 50 grammes of ‘Ice’.
The quantity of cocaine was 17.2 grammes. That amount falls in the band of between 10 to 50 grammes which warrants a sentence of between 5 to 8 years’ imprisonment. For this quantity of cocaine, that would attract a term of 5 years and 6 months’ imprisonment. In converting the cocaine to ‘Ice’, that would amount to about 6 grammes of ‘Ice’.
The converted drugs of ketamine and cocaine amount to 56 grammes of ‘Ice’, that is 50 plus 6, plus the ‘Ice’ of 247 grammes makes a total of 303 grammes of ‘Ice’ for Charge 4. The amount of 303 grammes falls in the band of between 300 to 600 grammes, which attracts a sentence of between 15 to 20 years’ imprisonment. For 303 grammes, I will take 15 years’ imprisonment as the appropriate notional starting point and after a one-third discount reduce that term to 10 years’ imprisonment for Charge 4.
For Charge 5, defendant, you were trafficking in 11.5 grammes of ketamine. That amount falls in the band of 10 to 50 grammes, which attracts a term of 4 to 6 years’ imprisonment. I take 4 years as the appropriate starting point after trial and reduce that term to 2 years and 8 months’ imprisonment for Charge 5.
Defendant, as I mentioned to you earlier, the total term of imprisonment to which you shall serve is 10 years and 4 months’ imprisonment. To reflect that sentence of 10 years and 4 months’ imprisonment, I make the following orders: 4 months of Charge 3 is to run consecutive to Charge 4 and all the other terms are to run to concurrent to each other.
The sixth step of Herry Jane Yusuph is to observe the overall sentence passed to ensure that it is fair, just and balanced, and in all the circumstances of this case, I consider it to be so.