The defendant pleaded guilty on 7 November 2024 in the magistracy to two charges of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one charge of conspiracy to traffic in dangerous drugs, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134, and sections 159A and 159C of the Crimes Ordinance, Cap 200. He admitted the Summary of Facts dated 31 October 2024. He was committed to the Court of First Instance for sentence.
On 18 February 2025, the prosecution filed a set of amended Summary of Facts. The main amendments being a difference of 0.1 gramme in the quantity of a solid that contained ketamine included in Charge 1. In fact, the Charge 1 to which the defendant pleaded guilty in the magistracy lacked that 0.1 gramme also. In the circumstances, pleas were taken from the defendant before me, in respect of all three charges with the correct quantities.
He pleaded guilty to all three charges. The amended Summary of Facts was read to the defendant. He admitted the same.
Admitted Facts
The facts of the case that the defendant has admitted can be summarized as follows for the present purpose.
On 13 April 2022, the police intercepted the defendant in the street near his home. The police found 105.1 grammes of ketamine narcotic and 75.2 grammes of cocaine narcotic in the white paper bag that the defendant was carrying. These dangerous drugs are the subject matter of Charge 1. Upon arrest for trafficking in dangerous drugs, the defendant admitted under caution that he would sell the dangerous drugs to others and that his mother was not involved.
The police then brought the defendant back to his home, where he lived with his mother. Inside the defendant’s bedroom, the police found packing paraphernalia, including three electronic scales, one heat sealing machine and numerous resealable plastic bags, plastic bags and paper bags, and 1,051.5 grammes of ketamine narcotic and 313.16 grammes of cocaine narcotic, which were packed into numerous resealable plastic bags. These dangerous drugs are the subject matter of Charge 2.
Under caution, the defendant admitted sole ownership of the dangerous drugs and that he would sell them to others. The police also found $8,400 in cash and a wallet containing $30 in cash inside the shoulder bag on the defendant’s bed.
In a subsequent video-recorded interview taken under caution, the defendant made certain statements. They are stated in the amended Summary of Facts and numbered from (a) to (u). Those that are relevant to the assessment of the defendant’s role and culpability in all three charges, and of the scope of Charge 3, that is the conspiracy charge, are cited below with their original numbering.
(c) The defendant owed debt of $250,000 due to investment failure.
(d) The defendant met an unidentified male 阿峰 three months ago and was invited to take part in trafficking in dangerous drugs activities for earning quick cash. He agreed.
(e) The defendant knew the dangerous drugs involved were cocaine and ketamine.
(f) The defendant would first obtain dangerous drugs from unknown males arranged by 阿峰. Every time, 阿峰 would first call him and tell him the time and place for him to receive the dangerous drugs from those unknown males.
(g) After receiving the dangerous drugs, he would take them home by taxi and repack the dangerous drugs into smaller plastic bags at home.
(h) As instructed by 阿峰, he used spoons and scales to weigh the dangerous drugs. He put 0.36 grammes to 0.37 grammes of ketamine, or 0.16 grammes to 0.17 grammes of cocaine in each small plastic packet. The small packets would then be put into large plastic bags. For each large plastic bag, there would be 40 to 80 small packets.
(i) After repacking, the defendant would pass them to other unknown males as arranged by 阿峰.
(j) For the past three months, he had received dangerous drugs from unknown males arranged by 阿峰 about three to four times in total.
(k) The dangerous drugs seized from his home were provided to him by an unknown male the day before.
(l) For the past three months, he had delivered dangerous drugs to other unknown males for about three to four times a week.
(m) 阿峰 would call him the night before every delivery day as to the amount of dangerous drugs to be delivered by him the next day.
(n) At 9.00 am the next day, an unknown person would call the defendant and inform him to take the dangerous drugs to a fast food restaurant and pass the dangerous drugs to other unknown males.
(p) He received cash as reward every time he received dangerous drugs.
(q) The defendant earned HK$50,000 to HK$80,000 per month from the drug trafficking activities. For the past three months, he had earned in total about HK$100,000 to HK$200,000. He used the money to repay his debt.
(t) When he repacked the dangerous drugs into smaller packages, he would lock the door so that his family members would not enter his room.
In addition to the above, he asserted that the cash inside his shoulder bag was his own savings.
There is no information as to the estimated street value of the dangerous drugs in this case.
Background and Mitigation
Based on the defendant’s antecedent statement and the submissions of Ms So, who represents the defendant, the defendant’s background is as follows.
The defendant is single. He was 25 years old at the time of offence, now almost 28 years old. He was educated up to Form 4 level. He has no previous conviction record. His parents are divorced. He used to live with his father, but he moved to live with his mother when he was around 16 years old until the present case. When he was 12 years old, he lost his sister in a car accident, which has greatly affected him. He maintains a harmonious relationship with his family.
He used to be employed as a technician to maintain gaming machines, earning around $18,000 per month. Subsequently, he and his friends invested in a gaming shop for a few years, but the business was poor and deteriorated even more during the COVID pandemic. He was not able to gain any money from the shop, and he owed money to his business partners. As a result, he foolishly succumbed to trafficking in dangerous drugs to make quick money.
Ms So submitted that the defendant was cooperative since his arrest by the police, and he pleaded guilty at the earliest opportunity. Ms So also submitted that the defendant was remorseful. Ms So submitted letters written by the defendant’s mother, father and maternal uncle, who raised the defendant until he was 3 years old. They all attested to the defendant’s good character. They informed the court that the defendant was greatly affected by his parents’ divorce and his sister’s passing, which eventually got him into making acquaintance with dubious characters.
For the sentence, Ms So submitted that the combined approach should be adopted in relation to Charges 1 and 2. Having conducted the absurdity, conversion and ratio tests, she submitted that the lowest overall starting point for Charges 1 and 2, on a purely mathematical basis, is one of 17 years 2 months’ imprisonment. Mr Lee, for the prosecution, confirmed the accuracy of Ms So’s calculations.
As for the conspiracy charge, Ms So submitted that unless the facts which give rise to inferences and assumptions are clear-cut, otherwise they will lean in favour of the defence.
Finally, Ms So stressed that had it not been the defendant’s own confession, the police would not be aware of the conspiracy in Charge 3.
Sentence
Charge 3
I deal with Charge 3 first. The reason is that the defendant admitted in his video-recorded interview that he had received dangerous drugs about three to four times during the past three months, that is between 13 January 2022 and 13 April 2022. This is exactly the offence period in Charge 3.
He also admitted in his video-recorded interview that the dangerous drugs found in his home, that is the subject matter in Charge 2, were received by him the day before his arrest on 13 April 2022. Absent any evidence that he had received a further batch of dangerous drugs on 13 April 2022, the irresistible inference is that the dangerous drugs in Charge 2 must be the last batch he received during the said three-month period. The quantity of dangerous drugs involved in Charge 3 must therefore be the largest amongst the three charges.
Moreover, the dangerous drugs in Charges 1 and 2 were, in all likelihood, part of the dangerous drugs that the defendant had received pursuant to the conspiracy. Therefore, the sentences for all three charges will run wholly concurrently.
According to HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, quoting HKSAR v Chan Kam Loi, CACC 410/2012 (unreported), where a conspiracy to traffic in an unspecified quantity of dangerous drugs is involved, 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 the facts which give rise to the inferences and assumptions are clear-cut, they will inevitably lean in favour of the defence.
In his video-recorded interview, the defendant stated to the effect that for the offence period of 3 months in Charge 3, he had received dangerous drugs about three to four times. He had earned $100,000 to $200,000 in the same period. However, he did not say how much he would earn for each delivery, nor the quantity of dangerous drugs in each delivery.
He asserted that the dangerous drugs found at his home, which is the subject matter in Charge 2, were provided to him the day before. There are 1,051.5 grammes of ketamine and 313.16 grammes of cocaine in Charge 2.
He did not say in his video-recorded interview whether he would always receive cocaine and ketamine together. It is noted, however, that when he was intercepted outside his home for Charge 1, he also had with him both cocaine and ketamine.
Ms So submitted that the defendant was on the way to deliver the dangerous drugs at that time. It can therefore be inferred that when the defendant was dealing with dangerous drugs, he was dealing with both cocaine and ketamine. Taking the most favourable view for the defendant, that is assuming he had only received dangerous drugs for three times (not four times) in Charge 3, the quantities in Charge 2 represent the amount he received before any delivery to others (otherwise the quantities used as the basis for calculations will be larger), and disregarding the dangerous drugs in Charge 1, the defendants could have received about 3,154.5 grammes of ketamine and about 939.48 grammes of cocaine in the three-month period specified in Charge 3.
A further adjustment in the defendant’s favour has to be made to take account of the possible margin of variation or uncertainty in his account, and the fact that but for his admissions, the prosecution would not have known of the details of the conspiracy. In the circumstances, I find it appropriate to further adjust the quantities downwards, thus resulting in 3,000 grammes of ketamine and 900 grammes of cocaine.
I have asked Ms So to make submissions on this sentencing approach. Ms So indicated that she has no submissions to make.
In the circumstances, I used 3,000 grammes of ketamine and 900 grammes of cocaine as the quantities of dangerous drugs involved in Charge 3.
For cocaine, the Court of Appeal has laid down new sentencing guidelines on 5 March 2025 in the case of HKSAR v Huang Ruifang [2025] HKCA 234. Following the new guidelines, trafficking in 900 grammes of cocaine will result in a starting point that is lower than following the previous guidelines. Although Charge 3, indeed all three charges, was committed before the new sentencing guidelines have been laid down, Article 12(1) of the Hong Kong Bill of Rights stipulates that,
“If subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”
Therefore, the new tariffs shall be followed. For a quantity of 900 grammes of cocaine, the starting point for sentence on a purely mathematical basis, is one of 17 years 7 months’ imprisonment.
For a quantity of 3,000 grammes of ketamine, HKSAR v Sin Chung Kin [2013] 1 HKLRD 622 stipulates a starting point for sentence of 20 years’ imprisonment.
Counsel have assisted me in conducting the absurdity, conversion and ratio tests. These tests yield three figures: 21 years, 22 years 9 months and over 20 years.
The defendant was an active player in the conspiracy. He was a courier, storekeeper, and at the same time, the one who repackaged the dangerous drugs. He would use spoons and scales to prepare small packets of dangerous drugs of precise weights, and he would then place them into large plastic bags. There were numerous small and large plastic bags in his home. There was also a heat sealing machine in his home.
He received cash as reward every time he received dangerous drugs. On his own admission, he received $100,000 to $200,000 in the above mentioned three-month period. It is clear from the evidence that multiple males were involved in the conspiracy, and there were two kinds of dangerous drugs involved, which could cater for a larger market.
Having considered all the circumstances of the case and the defendant, I take 20 years of imprisonment as the starting point for Charge 3.
I do not regard the defendant’s personal or family circumstances as any mitigating factor. As the Court of Appeal emphasized in HKSAR v Abdallah [2009] 2 HKLRD 437, at paragraph 32:
“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally - dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”
The only mitigating factor open to the defendant is his pleading guilty at the earliest opportunity. For that, he is entitled to a full one-third discount. The sentence for Charge 3 is therefore 13 years 4 months’ imprisonment.
As stated earlier, the projected quantities in Charge 3 would have included the quantities in Charge 2, and most likely also Charge 1, and double-counting has to be avoided in the overall sentence in this case. That will be achieved by making the sentences in all three charges wholly concurrent with each other.
Charges 1 and 2
I now deal with the overall starting point and sentence for Charges 1 and 2, although the sentence will be concurrent with that of Charge 3.
I follow the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeals guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
Step one is to identify the relevant guideline band applicable to the quantity of narcotics concerned. There are two charges of trafficking in dangerous drugs in this case. Given both charges concern the same two types of dangerous drugs, the close proximity in terms of date, time and place of offence, and the fact that the quantities of dangerous drugs in Charge 2 are much higher than those in Charge 1, I agree with Ms So that the combined approach should be adopted. That being the case, the total quantity of cocaine is 388.36 grammes, and that of ketamine is 1,156.6 grammes.
According to HKSAR v Huang Ruifang, trafficking in between 200 and 500 grammes of cocaine attracts a starting point for sentence of 12 to 16 years’ imprisonment. For 388.36 grammes of cocaine, the starting point should be 14 years 6 months on a purely mathematical basis (if following the previous sentencing tariffs, the figure is 14 years 10 months, which is higher).
According to HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking in over 1,000 grammes of ketamine should attract a starting point of 14 years upwards. There is a total of 1,156.6 grammes of ketamine in the present case, I adopt a starting point of 14 years 6 months.
Having considered the absurdity, conversion and ratio tests, the appropriate overall starting point covering both Charges 1 and 2, is one of 17 years 2 months’ imprisonment.
Step two is to assess the role of the defendant. Based on his own statement made in his video-recorded interview, I find that his role was more than a mere courier and storekeeper, as he was also responsible for repackaging the dangerous drugs. The presence of electronic scales and numerous resealable plastic bags corroborates this finding.
Step three is to decide where within the guidelines the defendant should lie. Given my assessment of his role, I enhanced the starting point by 6 months to 17 years 8 months.
Step four deals with aggravating factors. Trafficking in a cocktail of dangerous drugs is an aggravating factor (see HKSAR v Islam Azharul [2020] 1 HKLRD 644). For this, I enhance the starting point by 4 months to 18 years.
Step five considers the mitigating factors. I have explained that I do not regard the defendant’s personal or family circumstances as any mitigating factor. The only mitigating factor open to the defendant is his pleading guilty at the earliest opportunity. For that, he is entitled to a full one-third discount. That brings down the overall sentence for Charges 1 and 2 to 12 years of imprisonment. In the circumstances of the present case, it is impractical to specify individual starting points and sentences for Charge 1 and Charge 2.
The final step is to ensure that the overall sentence is one that is fair, just and balanced in all the circumstances of the offences and the defendant. As explained, the sentences for all three charges are to run wholly concurrently. The sentence for the whole case is 13 years 4 months’ imprisonment. This means that in effect, the conspiracy charge has only added 1 year 4 months to the sentence for the trafficking charges. I consider that this sentence is fair, just and balanced in all the circumstances of the offences and the defendant.
The defendant is therefore sentenced to 13 years 4 months of imprisonment accordingly.