COURT: The defendant pleaded guilty to two counts of trafficking in dangerous drugs. The 1st count involved the following drugs:
(1) 73.22 grammes of a crystalline solid containing 71.66 grammes of methamphetamine hydrochloride, which I will simply refer to as ‘Ice’;
(2) 13.6 grammes of a solid containing 10.6 grammes of ketamine; and
(3) 0.27 grammes of a solid containing 0.22 grammes of cocaine.
The 2nd trafficking count involved the following drugs:
(1) 235.81 grammes of a crystalline solid containing 227.69 grammes of ‘Ice’;
(2) 480.81 grammes of a solid containing 379.18 grammes of ketamine; and
(3) 59.18 grammes of a solid containing 46.47 grammes of cocaine; and
(4) 294.9 grammes of a mixture containing 227.2 grammes of heroin and 106.23 grammes of cannabis.
On 26 March 2021, police officers mounted an operation targeting Room B, Flat D, 3rd Floor, Diamond Building, No. 99 to 103 Wuhu Street in Hung Hom, which I will simply refer to as ‘the Room’.
At 1957 hours, two officers saw the defendant coming from the direction of Flat D holding a black paper bag. Police officers intercepted the defendant near the ground floor lift lobby. The defendant was then searched and the black paper bag that the defendant was holding contained:
(1) Three transparent resealable plastic bags containing suspected dangerous drugs; and
(2) a yellow envelope containing nine resealable plastic bags containing suspected dangerous drugs.
The defendant was then arrested. Under caution, the defendant said he could not find work and he therefore helped others to deliver drugs, and inside the bag was ketamine, ‘Pork’ and ‘Coke’.
A government chemist subsequently confirmed that the drugs seized from the defendant contained a total of 71.66 grammes of ‘Ice’, 10.6 grammes of ketamine and 0.22 grammes of cocaine.
The police officers then escorted the defendant to the Room. After police officers gained entry to the Room, the police found and seized various types of drugs and drug trafficking paraphernalia inside the unit.
Under caution, the defendant admitted that all the drugs inside the unit were for him to deliver when he worked and he would sometimes pack the drugs before distribution.
A government chemist subsequently confirmed that the drugs found inside the Room were a total of 227.69 grammes of ‘Ice’, 46.47 grammes of cocaine, 227.2 grammes of heroine, 379.18 grammes of ketamine and 106.23 grammes of cannabis.
The combined street value of all the dangerous drugs seized from the defendant and the Room was approximately $914,449.
The defendant’s background and mitigation
The defendant was 32 years old at the time of the offence, now aged 36. He was educated up to Form 5 in Hong Kong. His most recent job prior to his arrest was as a delivery driver. The defendant married his long-term girlfriend just a month prior to his arrest.
I have been informed that the defendant’s income was greatly affected by the pandemic and during those difficult times, the defendant foolishly resorted to drugs, making him vulnerable to drug traffickers who persuaded the defendant to help with delivering and packing drugs in return for payment. Defendant has three previous criminal convictions but none of them concern trafficking in drugs.
I have read letters submitted by the defendant and his wife. The defendant is viewed as a responsible husband, hard worker and a filial son to his own family as well as his wife’s family. The defendant himself has expressed remorse and regret for what he had done and the burden that he has caused to his wife and family.
The defendant has also positively used his time in prison to take courses and to better equip himself for reintegration into society once he completes serving his sentence.
Sentencing considerations
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drugs concerned. The sentencing tariffs for trafficking in ‘Ice’ are provided for in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For quantities of 70 grammes to 300 grammes, the sentencing band is 11 to 15 years.
The sentencing tariffs for trafficking in ketamine are provided for in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For quantities of 300 grammes to 600 grammes, the sentencing band is 9 to 12 years.
For cocaine and heroin, the relevant tariff can be found in R v Lau Tak Ming [1990] 2 HKLR 370. For quantities of 10 grammes to 50 grammes, the sentencing band is 5 to 8 years. For quantities of 200 grammes to 400 grammes, the sentencing band is 12 to 15 years.
The sentencing tariffs for trafficking in cannabis are provided for in R v Tuen Shui Ming and Another [1995] HKCA 36. For quantities of 0 grammes to 2,000 grammes, the sentencing band is 0 to 16 months.
In respect of Counts 1 and 2, the combined narcotic content is:
(1) 299.35 grammes of ‘Ice’;
(2) 389.78 grammes of ketamine;
(3) 46.69 grammes of cocaine;
(4) 227.2 grammes of heroin; and
(5) 106.23 grammes of cannabis.
Following HKSAR v Wan Lau Mei [2014] 4 HKC 75, the Court of Appeal held that where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations, the sentencing court should impose sentences on both offence for the total narcotic content and then make the sentences concurrent with one another.
Adopting that combined approach, the mathematically calculated starting points for each type of drug is as follows:
(1) For 299.35 grammes of ‘Ice’, the starting point would be 14 years and 11 months’ imprisonment after rounding down.
(2) For 389.78 grammes of ketamine, the starting point would be 9 years and 10 months’ imprisonment after rounding down.
(3) For 46.69 grammes of cocaine, the starting point would be 7 years and 9 months’ imprisonment after rounding down.
(4) For 227.2 grammes of heroin, the starting point would be 12 years and 4 months’ imprisonment after rounding down; and
(5) For 106.23 grammes of cannabis, the starting point would be less than 1 month’s imprisonment.
In the case of trafficking in multiple drugs, according to HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367, the court will first need to consider whether the “individual approach” or the “combined approach” should be used.
For the purposes of this case, I will adopt the combined approach and use heroin as the base drug, since it is the more potent drug. I will then apply the three means of cross-checking, namely, the “absurdity test”, the “conversion test” and the “ratio test”. For the purposes of these calculations, I will also ignore the 106.23 grammes of cannabis since the volume of cannabis does not materially add to the defendant’s culpability.
Under the absurdity test, the quantity of all drugs seized minus the cannabis, that is 963.02 grammes, are assumed to be the same drug. For that amount of heroin, the starting point will be 21 years and 9 months’ imprisonment after rounding down.
Under the conversion test, by converting the ketamine and ‘Ice’ into cocaine or heroin, this will give a total of 121.16 grammes and 399.24 grammes of cocaine or heroin respectively. The starting point for a total of 794.29 grammes of cocaine or heroin will be 20 years and 11 months’ imprisonment after rounding down.
I also cross-checked the difference if ‘Ice’ was used as the base drug. If the ketamine, cocaine and heroin sentence were converted into ‘Ice’, this will give a total of 53.47 grammes, 21.28 grammes and 150.96 grammes of ‘Ice’ respectively, and the starting point for a total of 525.06 grammes of ‘Ice’ would be 18 years and 9 months.
I have been informed by the prosecution that her calculations came to 19 years’ imprisonment after rounding down if ‘Ice’ was used as the base drug. The difference would appear to be whether one combines the heroin, cocaine as one drug for the purposes of the conversion test.
Under the ratio test, again, ignoring the cannabis, 31.08 per cent of the quantity is ‘Ice’, 40.47 per cent of the quantity is ketamine, 4.85 per cent of the quantity is cocaine and 23.59 per cent of the quantity is heroin. Applying the ratio test would result in a starting point of 18 years and 6 months’ imprisonment.
Taking into account the results of the various tests mentioned, I will adopt a notional starting point of 20 years and 6 months’ imprisonment in respect of each of Counts 1 and 2. In respect of the presence of a cocktail of drugs, thus allowing it to cater for a wider market, I will further enhance the starting point by 3 months.
On the evidence, there is nothing to suggest that the defendant had any role beyond the culpability of an ordinary courier. I therefore assess his culpability as with any other courier.
I have borne in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44, where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities.
Although I accept that the defendant is genuinely remorseful, personal circumstances in cases of this nature, do not constitute mitigating factors and cannot provide the defendant with any further sentencing discount.
The only mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount of the starting point which brings the sentence down to 13 years and 10 months’ imprisonment for each of Counts 1 and 2. The sentences on both counts are to be served concurrently.
Defendant, I sentence you to 13 years and 10 months’ imprisonment.