The defendant is charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
The particulars of the charge avers that the defendant on 1 June 2021, outside Nos. 19 to 21 Jordan Road, Yau Ma Tei, Kowloon, unlawfully trafficked in dangerous drugs, namely, (1) 0.45 grammes of a solid containing 0.36 grammes of ketamine; and (2) 10.74 grammes of a crystalline solid containing 10.66 grammes of methamphetamine hydrochloride.
The defendant pleaded guilty and admitted the Summary of Facts at the Eastern Magistracy on 2 May 2023. The case was committed to the Court of First Instance for sentence. This morning she confirmed the plea and admissions of the summary of facts.
The Facts
According to the amended Summary of Facts, on 1 June 2021, shortly before 1023 hours, two police constables observed that the defendant and a male, Shek Ka-sing had acted furtively outside 19 to 21 Jordan Road, Yau Ma Tei. So they were intercepted for enquiry. Upon search, in a brown shoulder bag (Exhibit 1) carried by the defendant, it was found to contain one transparent resealable plastic bag with red line (Exhibit 2) which contained the followings:
(1) One transparent resealable plastic bag containing 0.45 grammes of a solid containing 0.36 grammes of ketamine (Exhibit 3);
(2) one transparent resealable plastic bag with red line containing 2.10 grammes of a crystalline solid containing 2.10 grammes of methamphetamine hydrochloride (a salt of methamphetamine) (Exhibit 4);
(3) 14 transparent resealable plastic bags with red line (Exhibit 5), and four transparent resealable plastic bags (Exhibit 6); and
(4) one transparent resealable plastic bag with red line (Exhibit 7), containing six plastic bags containing a total of 8.64 grammes of a crystalline solid containing 8.56 grammes of methamphetamine hydrochloride (a salt of methamphetamine) (Exhibit 8).
The defendant was arrested and under caution, she admitted that all dangerous drugs were for her self‑consumption.
The government chemist confirmed that Exhibit 3, 4 and 8 to be:
(1) 0.45 grammes of a solid containing 0.36 grammes of ketamine; and
(2) 10.74 grammes of a crystalline solid containing 10.66 grammes of methamphetamine hydrochloride (a salt of methamphetamine).
The estimated market price of Exhibit 3 (0.36 grammes of ketamine) was HK$192.24 and the estimated market price of Exhibit 4 and 8 (10.66 grammes of ‘Ice’) was $5,831.02.
Defendant now admitted that she was on the date in question and place trafficked in dangerous drugs, namely, Exhibit 3, 4 and Exhibit 8.
Defendant’s background
The defendant is now 36 years old. She was born and brought up in Hong Kong. She was educated up to Form 3 secondary level. As far as her past criminal records, she was brought up to the court in no less than eight occasions in the past between 2002 and 2018, and in particular in 2011, she was convicted of a similar offence of trafficking in dangerous drugs for which she was given a sentence of 40 months’ imprisonment in the District Court. Apart from this, she had about six records of possession of dangerous drugs.
According to her counsel, Ms Wong, her father passed away when she was very small and her mother, now age 58, supported the living of the family by working as a packing worker. Defendant also has an elder brother. As far as marriage is concerned, the defendant is divorced. She is a single mother with a 4 years old daughter.
The defence also submitted a psychiatric report of the defendant. According to the medical report and the medical notes from Queen Mary Hospital, Kwai Chung Hospital and Kwong Wah Hospital, it was stated that she was diagnosed with long history of polysubstance abuse including ketamine, methamphetamine and other drugs since 12 years old.
She also maintained abstinence from substance abuse and reinstated amphetamine and ketamine use from time to time. Also, the urine toxicology screening in the two days after her arrest was found to be positive in cocaine, ketamine, amphetamine and methamphetamine. At the moment, she is still being treated with psychiatric medication by Kwai Chung Hospital.
Prior to the offence, defendant was unemployed and she was a recipient of CSSA and Disability Allowance at a total amount of $7,925 a month.
In mitigation, Ms Wong had stressed the guilty plea by the defendant at the first opportunity. Ms Wong also said that it can be shown clearly in her medical report and conviction records that she was psychiatrically dependent on dangerous drugs.
As a single mother, the defendant relied on the CSSA and she experienced heavy financial burden to support her daughter who was only 1 year old at the time when the defendant was arrested.
On the date of offence, Ms Wong told the court that the defendant was asked by the drug dealer to deliver drugs and in return, she would be given the pack of 0.36 grammes of ketamine (Exhibit 3), the pack of the 2.1 grammes of methamphetamine (Exhibit 4) and also $500 as rewards.
Due to her financial situation, defendant committed the offence in order to earn money as well as to get the drugs for free to ease her drug addition. Ms Wong told the court that although in the past, the defendant has experienced imprisonment sentence before, she stressed that this is still the first time that the defendant have to face this imprisonment after her daughter was born. The defendant regretted her wrongdoings especially when her mother had to spend a long time travelling to bring her young daughter to visit her regularly in the prison.
At the moment, defendant is still undergoing medical treatment and defendant hopes that her polysubstance abuse problem could be treated and that she can turn over a new leaf after discharge from prison. I was told also that during her detention, she had attended religious courses as she is determined to make a change in her life.
She also had completed a “Food Hygiene” course to equip herself for her future and work in the society. Ms Wong told the court that she is now on the right track of rehabilitation.
Sentencing principles and tariffs
Now it is well established that trafficking in dangerous drugs is a very serious offence. In the Court of Appeal case of Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstances are far less important than the sentencing principles of denunciation, deterrence, and punishment.
In sentencing, as urged by counsel from both sides, I shall follow the six-steps approach as laid down in the case of Herry Jane Yusuph. The first step is to assess the gravity of the offence. In this case there are two different types of drugs involved, namely, ketamine and methamphetamine.
Ketamine
The sentencing guideline for trafficking in ketamine is found in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. According to the sentencing guidelines, for the quantity of up to 1 gramme of ketamine, the sentence is within the court’s discretion. The starting point for over 1 gramme is 2 years’ imprisonment.
Methamphetamine
The sentencing guideline for trafficking in methamphetamine (or what is commonly known as ‘Ice’) is found in the HKSAR v Tam Yi Chun CACC 524/2011. According to the sentencing guideline, for the quantities between 10 and 70 grammes of ‘Ice’, the starting point is 7 to 11 years’ imprisonment.
The second step is to assess the defendant’s role and culpability based upon the evidence. As was held in Herry Jane Yusuph at paragraph 59:
“The guideline for trafficking in dangerous drugs are based upon the courier or storekeeper; that is, the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
Consequently, it would not be possible to properly apply the guidelines until the court takes a view of the role and the culpability of the defendant.
The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside the band whether above or below given the circumstances of offence and the role of defendant.
The assessment made in the second step is also relevant in determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for least culpable of drug traffickers, and courier fall into this category.
Now the facts of this case revealed that the defendant was intercepted by the police on the street when she was carrying a brown shoulder bag which contained the dangerous drugs (Exhibit 3 to 4 and 7). Based on this, I will sentence the defendant in accordance with the guidelines on the basis that she is a courier.
Overall starting point
In determining the proper overall starting point, I have reminded myself of the sentencing principle of trafficking in cocktail drugs. There are three means of cross‑checking the appropriateness of the overall starting point in the case of a trafficking involving different types of dangerous drugs. The so-called absurdity test, conversion test and the ratio test respectively (see the case of Yip Wai Yin [2004] 3 HCCC 367 and Chan Yuk Leong CACC 318/2013.)
To achieve a reasonable and realistic sentence, in this case, I will adopt the combined approach which involve an upward adjustment from the starting point of the base drug. As the total amount of ‘Ice’ in this case represents about 97% of the total drugs, it was the more or most serious drug in terms of potency. Therefore, I will use ‘Ice’ as the base drugs to calculate the starting point.
According to the sentencing guideline for 10.66 grammes of the ‘Ice’ narcotic, the starting point is 7 years and 1 month’s imprisonment. In determining the upward adjustment for the remaining 0.36 grammes of ketamine narcotic, I examine the overall starting point by checking it against the results of the three tests above.
According to the calculations done by the prosecution, to which the defence raised no objection, the absurdity test is 7.07 years, the conversion test is 6.97 years and the ratio test produced similar results as the absurdity test result which is 7.04 years. But the results are based on pure arithmetical calculation.
In any event, as properly submitted by the defence, the quantity of ketamine in this case can be regarded as insignificant in the overall sentence. After consideration of the matter, I shall adopt an overall starting point of 7 years’ imprisonment.
In determining the appropriate overall starting point, I also take into account the role and the culpability of the defendant. As I said, I consider the role of the defendant to be only a courier, so I will not increase the starting point on account of the role played by the defendant.
The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance this starting point. Now despite her previous conviction records for possession of dangerous drugs, this is only her second conviction for trafficking in dangerous drugs and her first conviction was already 13 years ago back in 2011. Hence, I shall not enhance the starting point on account of her previous record.
Also in this case, the trafficking involved two different types of dangerous drugs. In the case of Chan Yuk Leong, the fact that the seizure of the two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.
However, due to the relatively small amount of ketamine seized in this case, I will not enhance the starting point on account of the presence of the two types of the drugs.
Fifth, I am required to have regard to all mitigating factors. As the Court of Appeal made clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal circumstances will count for little unless they are exceptional.
Apart from the defendant’s timely plea, Ms Wong in her mitigation also relied on self-consumption which were the pack of the 0.36 grammes of ketamine (Exhibit 3) and also another pack of 2.1 grammes of ‘Ice’ (Exhibit 4). In support, Ms Wong referred to the defendant’s past drug abuse record and history, the urine test result, the psychiatric and medical reports, also the packing of both Exhibit 3 and 4.
Ms Wong also very sensibly accepted that the relevant part for self-consumption is still far from significant in this case but be that as it may, she still urged the court to exercise a discretion to further reduce the sentence.
Considering the matter in the round, finally I am prepared to reduce the sentence by 33 months, which represents around 39% (that is incorporating the one-third discount on account of her plea) discount to the defendant. The resulting sentence is reduced to a term of 4 years and 3 months’ imprisonment.
The sixth and the final step is to stand back and to look at the overall sentence. In my judgment, this is a fair, just and balanced sentence in all the circumstances of the offence and offender due to the reasons above and there is no other reason existing in this case to further adjust the sentence that I seek to impose.
Order
The final sentence that I will impose is therefore 4 years and 3 months’ imprisonment.