The defendant pleaded guilty on 29 January 2024 in the Magistrates’ court and was committed to this court for sentence on one charge of trafficking in two different kinds of dangerous drugs, namely:
(1) 76.4 grammes of a solid containing 66.2 grammes of ketamine; and
(2) 43.92 grammes of a solid containing 38.31 grammes of cocaine.
Before this court, he confirmed his plea and his agreement to the prosecution’s Summary of Facts.
The Facts
The facts are familiar and straight-forward. In the evening of 30 December 2022, the defendant was intercepted by officers of the Customs and Excise as he was leaving Kam Po Building in Yuen Long.
He was then taken back to a subdivided room in that building which he had rented. On the table inside the subdivided room, the officers found 61 plastic bags containing ketamine, 109 plastic bags containing cocaine and a tray containing cocaine, all of which were the subject matters of the charge. There was also an electronic scale, a spoon, gloves, and a batch of ziplock bags.
Under caution, the defendant admitted that the drugs were ‘K chai’ and ‘coke’, and they belonged to him. He also admitted that the tools found were for packing the dangerous drugs.
According to the Summary of Facts, the street values of the dangerous drugs were as follows:
(1) Ketamine, HK$44,388.40; and
(2) Cocaine, HK$34,409.68
Defendant’s Antecedent
Defendant was born in Hong Kong and educated up to college level. He is now aged 49, is married with a son who is aged 15, and they lived in a public housing estate in Lok Fu. He worked in the construction field, earning a monthly income of HK$8,000.
Prior to the present offence, he had three court appearances on 2 November 2006, 19 November 2019 and 23 August 2023 respectively, involving a total of six previous convictions, four of which were drug-related, including three trafficking and one possession.
My attention is drawn to the fact that the defendant’s last court appearance on 23 August 2023 was about trafficking and possession of dangerous drugs, which took place on 21 October 2021 (“the 2021 Offences”). I am told that at which time the defendant was sitting on the rear passenger seat of a taxi when he was intercepted by the police. Under caution, the defendant admitted possession of the dangerous drugs found on his person but denied trafficking of other dangerous drugs found inside the taxi. However, the defendant’s co-accused in that case, who was the taxi driver, remained silent under caution.
As far as the defendant was concerned, he was initially put on police bail for the 2021 offences but was released on 6 May 2022 by the police without charge. Despite this, given that the defendant had admitted possession under caution, he must have realised that he would later be asked to account for it. That eventually happened in June 2023
when he was formally charged for the 2021 offences. At
which time, however, the defendant had already been remanded in custody for the present offence. On the defendant’s plea to the 2021 offences, he was sentenced to a concurrent term of 22 months’ imprisonment on 23 August 2023. That sentence has been served by the defendant on 8 September 2024.
Sentence
The sentencing approach for the offence of trafficking is laid down in HKSAR v Herry Jane Yusuph, which is further clarified in HKSAR v Lee Ming Ho. One of the more salient features of this approach is the moving away from a rigid arithmetical approach, with starting points and sentences based purely on narcotic quantity, to a more discretionary approach involving an assessment of the offender’s role and culpability. However, the quantity of the dangerous drug involved remains the primary determinant in sentencing.
Following the sentencing approach in HKSAR v Herry Jane Yusuph, the first step is for this court to identify the relevant guideline bands. As to this, I note that:
(1) for trafficking in 66.2 grammes of ketamine, the applicable guideline band is 6 to 9 years’ imprisonment: Secretary for Justice v Hii Siew Cheng. By a pure arithmetical approach, trafficking in this quantity of ketamine alone would attract a sentence of 74.33 months’ imprisonment.
(2) for trafficking in 38.31 grammes of cocaine, the applicable guideline band is 5 to 8 years’ imprisonment: Attorney General v Pedro Nel Rojas applying HKSAR v Lau Tak Ming & Ors. By a pure arithmetical approach, trafficking in this quantity of cocaine alone would attract a sentence of 85.48 months’ imprisonment.
As two different kinds of dangerous drugs were involved, with a combined weight of 104.51 grammes, in order to assist me in identifying the starting point of the offence, I conducted the absurdity test, conversion test and ratio test, as explained in HKSAR v Chan Yuk Leong for the purpose of cross-checking. The results are as follows:
| • Absurdity test: | 79.85 months (assuming that all were ketamine) 113.44 months (assuming that all were cocaine) |
| • Conversion test: | the most potent drug, and treating 66.2 grammes of ketamine as equivalent to 25.92 grammes of cocaine for sentencing purpose and applying the sentencing band of 8 to 12 years) |
| • Ratio test: | 92.97 months |
Having considered the above results in the round, and taking into account the presence of more than one type of dangerous drug, which enabled the defendant to cater to a wider market than trafficking in only one kind of dangerous drug, I consider that the starting point of 102 months’ imprisonment would be appropriate in the present case: HKSAR v Yim Hung Lui Ricky. This is before any consideration of the defendant’s role in the offence.
Secondly, concerning the defendant’s role and culpability, I am of the view that he was not a mere courier or storekeeper, but was at least one rank higher in the drug business. This is in view of his involvement in weighing and packaging the dangerous drug, albeit not in a large scale, and also the fact that the subdivided room was rented for the purpose of the drug business by the defendant.
Thirdly, in view of my aforesaid findings of the defendant’s role and culpability, I consider that 6 months should be added to the starting point, making 108 months’ imprisonment as the notional sentence after trial.
Fourthly, there is the aggravating factor of the defendant’s previous conviction for similar offences. For this, there should be an enhancement of 6 months to the notional sentence after trial. Thus, the defendant’s sentence would be one of 114 months’ imprisonment before considering any mitigation.
Although technically speaking, the defendant did not commit the present offence while he was on bail for the 2021 offences, the blunt fact was that he committed the present case while he must have known that his previous case remained outstanding at the time. That, in my view, constitutes an aggravating factor which justifies an enhancement of sentence. However, in the special circumstances of the present case, I find it more convenient to deal with this aggravating factor when I consider the issue of totality.
Fifthly, having fully considered the mitigation put forward by Mr Tze, who I trust has said all that could be said on
the defendant’s behalf, I consider that the only mitigating
factor which may reduce the defendant’s sentence is his timely plea. And after deducting the customary one-third discount for plea, the defendant’s sentence is reduced to 76 months’ imprisonment.
Lastly, there is the issue of totality in the broader sense. The present case and the 2021 offences were separate and distinct offences with a time gap of more than a year in between. Therefore, the 2021 offences and the present offences cannot be considered as part and parcel of each other.
Given their similar nature and the fact that the 2021 offences remain outstanding when the defendant was remanded in custody for the present offence, there are case authorities to the effect that the two cases could and should have been dealt with together. See, for example, R v Bennett, R v Lee Chi Ping, and R v Savage (No.4) and Secretary for Justice v Mak Wai Hon.
Had that course been taken, the court would have been in a position to adjust the overall sentence of the two cases by ordering partly consecutive and partly concurrent sentences. Now that the defendant has already served his sentence for the 2021 offences, that course was no longer possible. It is perhaps also unfortunate that the original day fixed for the sentence on 21 August 2024, before another judge, had to be refixed to today through no fault of the defendant.
Out of fairness to the defendant, and in order to achieve a proper totality of the sentences of the present case and the 2021 offences, however, this court could suitably reduce the sentence for the present case so as to prevent the present sentence from becoming excessive when viewed with that of the 2021 offences, HKSAR v Lee Ming Yin and HKSAR v Leung Yui Ming (Judgment in Chinese).
The question before the court now is to what extent, if any, the sentence of the present offence should be adjusted for totality. Having stepped back far enough and looked at the matter in the round, bearing in mind, on the one hand, that the present offence was committed when the defendant knew that the 2021 offences remained outstanding, and on the other hand, that the defendant has already served a 22-month sentence for the previous case, I am satisfied that it would be fair that 2 months be deducted from the defendant’s sentence for the present offence. That brings it down from 76 months’ to 74 months’ imprisonment.
Conclusion
Therefore, the defendant is sentenced to 74 months’ imprisonment.