The search revealed:
(1) 21 plastic bags containing a total of 24.07 grammes of a solid containing 18.63 grammes of ketamine;
(2) 25 plastic bags containing a total of 6.28 grammes of a solid containing 5.31 grammes of cocaine; and
(3) 12 plastic bags containing a total of 44.42 grammes of a crystalline solid containing 43.81 grammes of methamphetamine hydrochloride.
The first two items were found in the shoulder bag carried by the accused. Item (3) was found in the underpants of the accused.
In addition, the police found just over $37,000 in a wallet of the accused and also a mobile phone.
Further search was conducted at the residence of the accused. Nothing of moment was found there.
At the scene of the interception and search, the accused was arrested and cautioned. He made an admission that he trafficked in dangerous drugs for money because he was on no-pay leave. Subsequently, the accused was interviewed under caution in a video-recorded interview. The accused made full admissions including outlining the system whereby he was instructed by another as to the sale of the drugs. He admitted in the video-recorded interview that he received $80 per bag for the drugs sold and that the cash seized on him was the proceeds of his sales. If that was literally true, he must have sold in excess of 400 bags of dangerous drugs.
Counsel submits that - and there is no opposition to this submission - that this was his first day on the job and accordingly, the theory that he sold something of the order of 400 bags of dangerous drugs does not seem to work out. In any event, he told the police he was not, himself, a drug addict.
Criminal Proceedings
Following his arrest, he was put up before a magistrate on 23 May 2020. On 24 May 2021, he pleaded guilty to the charge in the file and admitted the Summary of Facts. He was ordered by Mr Daniel Tang Siu-hung, sitting as a permanent magistrate to be committed to this court for sentence. He has by his counsel confirmed his plea and his admission to the Summary of Facts. He is accordingly convicted.
Antecedents and Mitigation
The accused is a 40-year-old man who was born in Hong Kong. He was formerly married but is now divorced. He was educated to Form 5. He has no previous convictions. His mother and father are 60 years old and 62 years old respectively. He has a 12-year-old daughter from his marriage. I am informed by counsel that his mother and his fiancée are present in court and that is a significant matter.
Counsel for the accused told me, and I accept, that the daughter of the accused lives with his ex-wife. She is a high school student and the accused is responsible for a contribution of $3,000 per month to support his daughter. He lived alone before his arrest. He was originally a cook earning $15,000 per month. However, he was laid off from his work and was unable to find the means of supporting his daughter. He succumbed to the temptation through an invitation of another person to sell drugs to make ends meet.
Counsel submits, and, again I accept, that the court can proceed upon the basis that his conduct in agreeing to sell drugs was out of character and was done simply to meet his obligations to his daughter. Prior to succumbing to the temptation to earn money in this way, he had been throughout his working life gainfully employed.
I am informed, and I accept, that the accused is very remorseful for his conduct.
Sentencing Principles
Seriousness of the Offence
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as those which are the subject of the charge and perhaps particularly cocaine and methamphetamine hydrochloride. It is easy to see why, particularly in relation to cocaine and methamphetamine hydrochloride. Both drugs have terrible consequences for the individual. They are addictive and perhaps particularly methamphetamine hydrochloride is savagely addictive. Ridding oneself of that addiction is, to say the least, a very arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to either methamphetamine hydrochloride or cocaine is fraught with instances of disappointment. There are consequences - sometimes serious ones - for the families of those who become addicted to those drugs.
The view of the Hong Kong community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of the charge in this case.
So far as ketamine is concerned, the relevant sentencing guidelines are to be found in Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For quantities of between 10 grammes and 50 grammes, the suggested sentencing range is between 4 and 6 years’ imprisonment.
The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming and Others [1990] 2 HKLR 370. Other cases confirmed that this guideline is applicable for cocaine. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable sentencing guideline provides for a sentence for quantities of up to 10 grammes is a sentence of between 2 and 5 years’ imprisonment.
In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. For between 10 grammes and 70 grammes of ‘Ice’, the suggested guideline is between 7 and 11 years. The range in question is for a sentence following conviction after trial. That is the basis upon which the starting point is calculated.
Role of the Accused
It is critical to determine the role of the accused in the crime (see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, §49, 58-61, 64-68). In that case, the Court of Appeal recognised that although the analytical starting point for the sentencing guidelines for drugs such as cocaine start on the premise of sentencing for a courier or a storekeeper, there is a range of culpability even if the trafficker can be characterised as a courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking in dangerous drugs where the sentence was based solely on narcotic content.
Discount for Plea of Guilty
The well-accepted principles of sentencing recognise that where an accused person pleads guilty at the earliest practicable moment that a discount from the appropriate starting point of 33 per cent would be applicable.
Cocktail of Drugs
In this case, the accused was trafficking in three separate dangerous drugs. This requires a consideration of the appropriate sentence, taking account of the relative potency of the drugs in question. Generally speaking, to simply aggregate the sentences appropriate for the individual drugs would be to produce an unjust result. That would be so in the present case. The injustice of such approach is self-evident. As a result of that, the Court of Appeal in such cases as HKSAR v Chan Yuk Leong CACC 318/2013 propounded a series of tests which should be considered to arrive at the appropriate sentence.
The obvious tests in this case are the conversion test and the ratio test. These tests produce results as follows:
(1) conversion test, on the premise that methamphetamine hydrochloride is the most serious drug: 9 years and 7 months;
(2) ratio test: 9 years and 5 months.
It is to remember these are tests which involve their own artificiality and produce a number of reference points which indicate approximate justice.
Application of Sentencing Principles
The role of the accused is that of retail seller. Worse still, he was carrying not just one drug but a range of drugs and was providing a mode of choice to his customers. He is not a mere courier or a storeman which is the basis upon which the guidelines are formulated, and but for the fact that at least a major part of the motivation of the accused was to ensure the continuity of his financial support for his daughter and but for the fact that he was a person of previous good character and in employment and is wholly remorseful and is a person fallen on hard times through no fault of his own, I would have fixed the starting point which was, to a degree, in excess of the arithmetic mean for each of the sentencing bands of the relevant drugs. But for those factors I would have sentenced over the arithmetic mean.
Accepting the imperfection of the various tests where a cocktail of drugs is involved, my view of the approximate justice of the situation based on the arithmetic mean to each sentencing case is a starting point of 9 years and 6 months.
The accused has taken responsibility for his conduct and is entitled to a full one-third discount. Even so, he will be in prison and away from his beloved daughter, his fiancée and his family for a long time. There would be, in my view, a compelling argument for this man to take advantage of courses and educational opportunities offered by and through the Commissioner of Correctional Services to ensure that he leaves prison well-equipped for the challenges he will face.
Would the accused please stand up? Taking account of your background and circumstances and the motivation for you committing this crime which was your first ever crime, the least sentence I can pass upon you is a sentence of 6 years and 4 months’ imprisonment and that is the order of the court.