COURT: The defendant pleaded guilty to one count of conspiracy to traffic in a dangerous drug and one count of trafficking in a dangerous drug. He was committed on 9 November 2023 to the Court of First Instance for sentence, and today confirms his pleas and admission of the Summary of Facts which have been amended twice. Charge 1 is a conspiracy to traffic in a dangerous drug, and the particulars of the offence are that the defendant, between a date in July 2021 and 20 October 2021, conspired together with a person known as “Fung Ho-tat” to unlawfully traffic in ketamine in Hong Kong.
Charge 2 is a trafficking in a dangerous drug offence, and the defendant, on 20 October 2021 at Room 3316, Hong Ching House, Kai Ching Estate, Kai Tak, Kowloon, together with the same man Fung Ho-tat, unlawfully trafficked in a dangerous drug, namely, 2,076.48 grammes of a solid containing 1,095.04 grammes of ketamine.
The Facts
On 20 October 2021, the police had information and acting upon it, entered the defendant’s home at Room 3316, Hong Ching House, and found the drugs of Charge 2 in 16 bags, as well as three electronic scales, many mesh strainers, one bucket of paint remover, $21,370 in total, six mobile phones a large quantity of resealable plastic bags.
The defendant was arrested and under caution admitted that he had been processing ketamine given to him by Fung Ho-tat. Fung had taught him how to extract ketamine from solids delivered to him. He would receive parcels on the 35th floor of his building passed to him by children acting on instructions from Fung.
At home, he would then deal with the parcels and contents by repacking the ketamine into bags of about 200 grammes each. Once he had completed the job, Fung would arrange for someone to collect the bags from him. He would receive approximately $20,000 for each parcel and had earned about $60,000 in total. To prepare the 16 bags found by the police, he had received two parcels.
He admitted that Room 3316 was essentially a storage centre. He admitted that the estimated street value of the seized ketamine from his home was $1,385,012. He admits conspiring with Fung to traffic ketamine from a date in July 2021 until the date he was arrested. He admitted that he stored the drugs found at home for the purposes of trafficking.
Mitigation
The defendant is now 25 years old, single, and at the time of his arrest working as a bartender and earning approximately $13,000 a month. He lived in those premises with his parents and an elder sister. He does have one previous conviction but it is totally unrelated to dangerous drugs.
Ms Wu has said all she can say in mitigation on his behalf. I have taken into account everything she has said relating to his background, family members’ illnesses and the reason he committed these offences. I have read a letter from the defendant. His best mitigation is his plea of guilty at the earliest opportunity.
Ms Wu has submitted, despite what the defendant admitted to the police about other packages or package received and dealt with, the subject of Count 1, I should take the same starting point for both charges based on the amount of drugs of Charge 2.
Sentencing
Count 2
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and the applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just, and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug. The sentencing regime for trafficking in ketamine is governed by guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, where between 1,000 to 2,000 grammes of ketamine is trafficked, then the starting point should be between 14 and 18 years’ imprisonment. Here, mathematically, the starting point for 1,095.04 grammes is 14 years and 5 months’ imprisonment.
As far as the second step is concerned, assessing the role and culpability, I accept the submission that the defendant appears to have stored the drugs, acting as a storekeeper. He also admits it was his duty to pack drugs upon instructions to be collected. But I take that to be part of his job as a storekeeper.
Therefore, taking into account the third step, his sentence is to be determined by the relevant tariff. I intend to take a mathematical approach to the starting point. If the defendant only faced this one charge of trafficking in ketamine, I would have taken that starting point of 14 years and 5 months’ imprisonment.
However, there is another charge of a conspiracy to traffic in the same drug based on the admissions made by the defendant. From his admissions, I find it possible to approximately quantify the drugs of that conspiracy offence. Therefore, in my view it would be appropriate and sensible to take a global approach and add up the drugs of both counts.
I nevertheless proceed to consider the fourth and fifth steps required of me under the six step approach. That is to consider whether there are any aggravating factors or any exceptional mitigating factors. I do not find either factors here.
The defendant pleaded at the earliest opportunity and is entitled to a one-third discount. If there were only the sole charge of trafficking, then after that discount is applied, I would have sentenced the defendant to 9 years and 7 months’ imprisonment for Count 2.
The last step to take is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of not only the offence but also the defendant. It is a significant term of imprisonment, but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced, or unjust.
Let me now turn to Count 1. In this case, I accept and am satisfied that the defendant was a conspirator who can be categorised as acting like a drug mule and storekeeper, in that he was tasked with collecting packets, repackaging them for collection, and clearly subsequent distribution.
It is a charge of conspiracy to traffic dangerous drugs but in this case the crime was in process, was detected, and we have some of the drugs involved in the total conspiracy. On the defendant’s own admission, he dealt with more drugs than was found on the date of his arrest. The quantity is not the only fact relevant to the assessment of gravity.
I have been referred to the Court of Appeal authority HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799 and the principle that where a conspiracy to traffic in an unspecified quantity of dangerous drugs was concerned, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts of the case. Unless clear cut, such inferences and assumptions would inevitably lean in favour of the defendant.
In this case, this charge only came about because of the admissions made by the defendant under caution. He told the police he was working with and for Fung Ho-tat. He told the police Fung had arranged for him to collect parcels of ketamine on the 35th floor of his building. When he received a parcel, he would unpack the ketamine and repack it into bags of around 200 grammes each. Once he had repacked the ketamine, Fung would arrange a courier to collect those bags that he had packed from the defendant.
He admitted he had received two parcels to repack into the 16 bags containing 2,076.48 grammes of a solid containing 1,095.04 grammes of ketamine, the drugs of Charge 2. He said he had received parcels on two to three occasions before his arrest. He would be paid about $20,000 for each parcel and he had earned about $60,000 in total.
As I have said, Ms Wu has asked me to find there to be insufficient evidence of other drugs received besides those drugs of Charge 2 found on the date of his arrest. That would enable the court to “properly derive inferences and assumptions that the defendant had indeed trafficked in drugs other than those seized”. She submits I should take the same starting point for Charges 1 and 2.
With respect, that cannot be right. Upon the defendant’s own admissions I have highlighted above, he dealt with more drugs than those found on the date of his arrest. The question is how much more.
The drugs of Charge 2 consisted of 16 bags of approximately 130 grammes of a solid containing ketamine. The defendant has explained that he received two parcels to make up those 16 bags. That means those two parcels contained a total of 2,076 grammes of a solid containing 1,095 grammes of ketamine, or if divided by 2, 138 grammes per parcel containing 547 grammes of ketamine.
The defendant admitted he had received parcels on two to three occasions before he was arrested. He also admitted that he would receive a reward of about $20,000 for dealing with each parcel and had earned about $60,000. This would mean he had dealt with three parcels. If I were to give him the benefit of the doubt and assumed he earned about $40,000 for the two parcels involving the drugs of Charge 2, then there would be one parcel outstanding. I am assuming that the parcels were of approximately the same weight if he earned the same amount per parcel. Therefore the one outstanding parcel would weight approximately 1,038 grammes of a solid containing approximately 547 grammes of ketamine.
The defendant’s admissions were not clear-cut, nor did the police clarify his admissions, but I believe my interpretation of what he admitted is fair to him. My assumption is derived from what he said. If I were to add 547 grammes of ketamine to the ketamine of Charge 2, this would add up to 1,642.04 grammes which would, according to the guidelines of Secretary for Justice v Hii Siew Cheng, attract a starting point of 16 years and 7 months’ imprisonment.
Now, I am very much alive to the fact that without those admissions, there would be no prosecution for an offence of conspiracy to traffic in ketamine. I have also taken into account the mathematics of the amount of drugs and the purity of ketamine for the outstanding parcel is based on assuming similar quantities and purity of the ketamine of Charge 2.
I am therefore inclined to reduce that starting point I have calculated, that is 16 years and 7 months’, to 16 years’ imprisonment for both Charges 1 and 2.
The defendant has pleaded guilty at the earliest opportunity and is therefore entitled to the full one-third discount. After that discount is applied to a starting point of 16 years’ imprisonment, the appropriate sentence is one of 10 years and 8 months’ imprisonment.
Considering the last step of the six-step approach to sentencing those that traffic in dangerous drugs again, the term of 10 years and 8 months’ imprisonment is a significant term, but a severe sentence is not by that reason alone necessarily unfair, imbalanced, or unjust.
Accordingly, the 1st count of conspiracy to traffic in ketamine, the defendant is sentenced to 10 years and 8 months’ imprisonment. For the 2nd count of trafficking in ketamine, the defendant is sentenced to 10 years and 8 months’ imprisonment.
As I have taken the global approach to these two counts, it is only right that I order both sentenced to be served concurrently.
Defendant is therefore sentenced to a total of 10 years and 8 months’ imprisonment.