On 24 July 2019, officers of the Customs and Excise Service examined an inbound postal parcel which had originated in Thailand. There were a number of food items in the parcel and in examination the five Pringles potato chips cans and two Nutella plastic bottles inside the parcel revealed a quantity of ketamine. The ketamine found in the parcel was analysed by the Government Chemist and was found to be 868 grammes of a powder containing 729.9 grammes of ketamine.
Other officers of the Customs and Excise Service attempted a controlled delivery. These officers attended the address on the parcel but were unsuccessful. In the course of this attempted delivery, a collection notice was left at this address. This occurred on 25 July 2019. The next day, the accused attended at the Yuen Long Post Office by producing the collection notice left the previous day by officers of the Customs and Excise Service at the consignee’s address. The accused stated that he was collecting the parcel on someone else’s behalf and the consignee’s name was Lam. He left the counter for a while but returned shortly after. The request to take delivery of the parcel was processed and the accused provided the parcel’s particulars including the airway bill number, the consignee’s name, the consignee’s address and the consignee’s phone number. The accused acknowledged receipt of the parcel by signing his name and showing his Hong Kong identity card. He produced his Hong Kong identity card for verification.
The accused collected the parcel and left the post office with the parcel in his possession. He was intercepted by the officers of the Customs and Excise Service outside the post office. Thereupon he threw the parcel on the ground and attempted to escape. He was almost instantly intercepted and the parcel was retrieved. Following that, the accused was arrested and cautioned. In answer to the caution he said he did not know what was in the parcel.
At a later stage, the officers opened the parcel in the presence of the accused and the suspected dangerous drugs were shown to him. In answer to a caution, the accused said he was collecting the parcel for a person by the name of ‘Wai Tsai’. Following that, the accused said he was prepared to participate in a controlled delivery. I will return to the topic of the controlled delivery in a little while.
He then was taken by officers of the Customs and Excise Service to his residence in Pak Sha Tsuen in Yuen Long. The door of the premises was opened by officers using a key seized from the accused. Following a search of the premises, the following items were found:
(1) one plastic bag containing 11.4 grammes of a solid containing 8.28 grammes of ketamine and 0.62 gramme of methamphetamine;
(2) one plastic bag containing 1.44 grammes of a crystalline solid containing 1.43 grammes of methamphetamine hydrochloride;
(3) three plastic spoons containing traces of a powder containing ketamine, cocaine and fluorodeschloroketamine;
(4) five plastic straws containing a total of 0.06 gramme of a powder containing ketamine;
(5) two electric scales; and
(6) 94 resealable plastic bags.
The aggregate amount of drugs found in the premises occupied by the accused was, on analysis by the Government Chemist, a total of 11.4 grammes of a solid containing 8.28 grammes of ketamine, 0.62 gramme of methamphetamine and 1.44 grammes of a crystalline solid containing 1.43 grammes of methamphetamine hydrochloride.
The accused was arrested and cautioned in relation to the drugs seized on the premises and asserted that the dangerous drugs were ketamine and that they were for his own consumption and the paraphernalia was used for consumption. The accused was further invited to undertake a video-recorded interview but he declined to be interviewed.
At the time of the entry to the premises, the accused was the tenant of those premises and paid a monthly rent of $7,000 per month.
The estimated retail value of the dangerous drugs found in the parcel from the post office was 509,000 and from the premises of the accused, $7,225.
Procedural history
The accused was taken before a magistrate on 29 July 2019. After a number of adjournments, he appeared before Mr Cheang Kei-Hong sitting as a permanent magistrate on 7 December 2020. On that day, he pleaded guilty and admitted to a Summary of Facts contained in the committal file. The accused was committed to this court for sentence.
Background and Mitigation
The accused is a Hong Kong-born person who is 24 years of age. At the time of his arrest, he was single and lived at the address the subject of the search in Yuen Long. At the time he worked as a construction worker with a monthly income of about $20,000 a month.
He has a minor criminal record starting in 2010. He has only one previous conviction which relates to dangerous drugs which was a charge of possession of dangerous drugs in 2019 whereupon he was sentenced to imprisonment for 2 months suspended for 24 months.
It is contended that his motivation for committing this offence was that he was in urgent need of this money to support his parents.
In mitigation, he told me that he got nothing out of carrying the drugs from the post office. He did that at the behest of his drug supplier. The benefit to the accused was, in essence, keeping to wait for this supplier. The supplier was to pick up the drugs later.
The controlled delivery
The accused took part in a controlled delivery of sorts. At first, he and the customs officers waited for a call on a mobile phone of the accused. However, that was ineffective because, so the accused asserted, the phone was locked and he, the phone owner, could not remember the password. The SIM card was taken out of the phone and placed in another phone and he was able to dial the number of the suspect which he repeatedly did but without success. No drugs were delivered through the controlled delivery.
Sentencing Principles
Trafficking in ketamine - starting point
For many years, the community of Hong Kong has taken a severe view of drug trafficking-particularly in relation to drugs such as ketamine, methamphetamine and methamphetamine hydrochloride. However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who ingests these drugs.
The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance that provides for convictions on indictment, the maximum sentence is life imprisonment and 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 which are the subject of the charge in this case.
In relation to ketamine, the guidelines for trafficking in ketamine which were outlined in Secretary for Justice v Hii Siew Cheng [2009] HKLRD 1. That case laid down guidelines for up to 1,000 grammes of ketamine. For quantities between 600 grammes to 1,000 grammes of ketamine, a range of sentence between 12 and 14 years’ imprisonment is indicated. In relation to the ketamine in Charge 2, the sentencing band for up to 10 grammes is imprisonment between 2 and 4 years.
In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that sentence, the Court of Appeal suggested guidelines for up to 600 grammes of ‘Ice’. In this case, the relevant range is for quantities up to 10 grammes, and the relevant range is between 3 years and 7 years. It is appropriate to treat the methamphetamine and methamphetamine hydrochloride together for this purpose.
Role of the accused
It is critical to determine the role of the accused in the crime: HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, [2020] HKCA 974, § 49, 58, 61, 64 - 68 is the authority for this. In this case, the Court of Appeal recognised that although the starting point of the sentencing guidelines for drugs such as cocaine and ketamine, ‘Ice’ and others start upon the premise of sentencing for a courier or a storekeeper, there is a range of culpability even if a trafficker can be so characterised.
Controlled delivery, assistance to the authorities
There was the controlled delivery. The process has been described earlier in these reasons. The attempts on the part of the accused to assist the authority appear to me to be somewhat superficial and perfunctory. He deserves minimal credit for this. From the eyes of the prisoner, of course, every bit helps and I accept the risk of accusation of tinkering with the sentence by adding to the discount by 2 per cent. Frankly, he is lucky to get that.
Discount
The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent: HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.
Activation of previous suspended sentence
We are within the period of the suspension but towards the end of it. I do not propose to activate this sentence.
Application of sentencing principles
In order to fix the starting point for this case, an assessment of the role of the accused is critical. Although there are two charges in this case, all on the same day and, in my judgment, they should be viewed collectively rather than individually. If I was to view the matter individually, it might be possible to view the accused as a minor league player picking up a substantial quantity of drugs for somebody else. However, the alternative viewpoint is that the narcotic was being picked up at the post office is the same one as the predominant quantity of drugs at the residence of the accused. The value of those drugs is quite substantial even when one allows for the bulk likely to cost less than the street value in the agreed facts and that is taken together with the array of scales and empty bags found in the premises, it would be open to me to infer that this is a person who is either running a packing or storage business and was replenishing his stock or assisting others to do so. The problem is that to take such a view would be to significantly aggravate the role played by the accused and that is dependent in the end on proof. Of the more serious aggravated view of this matter, there is no proof apart from a deep deep suspicion on my part.
Accordingly, I propose to sentence the accused upon the conclusion that the accused is just some minor league flunkey going to pick up somebody else’s drugs to store them, and then pack them at his place. If that was true then a sentence below the arithmetical mean for this sentencing band might be appropriate.
I am certainly satisfied beyond reasonable doubt that something more than a minimal view of the role of the accused is justified but on the premise I have just outlined given the arithmetical mean is about 12 years and 6 months, I propose to opt for a slightly lower starting point.
In relation to the 1st charge, I consider a starting point of 12 years and 3 months to be appropriate, allowing for the role of the accused.
In relation to the 2nd charge, the position is somewhat more complex due to the other drugs involved. It is well-recognised that where the trafficking involves more than one drug, that the analysis becomes somewhat more complex. The application of the starting point for methamphetamine hydrochloride taken together with the methamphetamine is a total of 2.05 grammes and the arithmetical starting point for that would be 3 years and 10 months. For ketamine found in the residence which is a total of 8.28 grammes, the mathematical calculation would create a starting point of 3 years and 7 months.
Plainly, if the drugs seized in the residence were treated separately, then a sentence of 7 years 5 months would be the outcome of the mathematical mean for both drugs. That would be both unacceptably high and unjust.
The courts have developed a series of tests to determine how best to sentence in such a situation. In this regard, the court has the benefit of written submissions both by the prosecution and counsel for the accused. These submissions as to the calculation for the appropriate starting point are in accord and at least as far as the base for the calculation, I gratefully accept their assistance.
The first test which is traditionally considered is the absurdity test. In this one, the sentence, that combines the whole quantity of drugs which will be 10.33 grammes in the present case, if one assumed that was only ketamine, then the starting point would be 4 years. If the quantity contained only methamphetamine hydrochloride, the starting point would be something of the order of 7 years.
The next test is commonly known as the conversion test. If all the drugs were converted into ketamine, then a starting point on the mathematical mean would result of a starting point of 4 years and 4 months. If all the drugs were converted into methamphetamine, a starting point of 4 years and 5 months would be appropriate.
The ratio test produces a starting point of something of the order of 4 years and 7 months.
In this case, it appears to me that the approach which approximates the justice of the case is to recognise that the vast majority-over 90 per cent - of the narcotic, is ketamine. On the conversion test, this produces a sentence of the order of 4 years and 4 months. Viewed in isolation, this seems to me to be about right.
As I have already indicated, it is right to consider the role played by the accused. In my judgment of his role, I would be justified in sentencing on just below the arithmetical mean. The accused is pretty much a minor league player. On the other hand, he was actively involved in storing the drug and that is a serious matter.
Accordingly, applying the discount to the 1st charge of 35 per cent, a starting point of 12 years and 3 months would produce a sentence of 7 years and 11 months. Applying the same discount for the drugs in the 2nd charge upon the basis if the starting point was 4 years and 4 months produces a sentence of 2 years and 9 months.
However, the reality is if that the quantity of drugs in the 2nd charge were added to the 1st charge, the effect on the starting point would be minimal. Plainly, consecutive sentences for the different charges would produce a totality which would be manifestly unjust. In my judgment, the just disposition of the case would be to order that sentence for the two counts to run concurrently.
Disposition
The order of the court is that on the 1st charge, the accused is sentenced to a term of imprisonment of 7 years and 11 months. On the 2nd charge, the accused is sentenced to a term of imprisonment of 2 years and 2 months. I order that those sentences run concurrently.