COURT: On 17 August 2020, the defendant pleaded guilty in the Eastern Magistrates’ Court to one charge of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. This morning, he confirmed his plea before me and accepted the Summary of Facts read to him.
(4) 0.96 grammes of F-ketamine.
The total estimated street value of all the dangerous drugs seized was around HK$149,786 to HK$150,423.
Having been arrested and cautioned, the defendant admitted he was trafficking in the dangerous drugs for others because he was indebted.
A further search revealed that the defendant was in possession of cash $24,700 found inside the defendant’s bag, two mobile phones and a car key of the private vehicle.
Subsequently, a video-recorded interview was conducted with the defendant. Under caution, the defendant stated that in July 2019, he acquainted a Chinese male named “Coke” inside Ma On Shan Playground. Coke communicated with him via WeChat and instructed him to traffic dangerous drugs and collect money from the customers. He would earn HK$3,000 per day for trafficking the dangerous drug for Coke. The private vehicle was registered in his name. The only car key was in his possession. He was indebted for about $200,000. Two mobile phones were seized from him, one to contact Coke, the other one for his private use. He knew the drugs found in the private vehicle included Ice, cocaine and ketamine. He would pick up dangerous drugs in Kowloon City and the pickup location varies every time. He admitted the $24,700 cash found in his possession was the proceeds of trafficking in dangerous drugs.
The defendant now admits and accepts that at the material time he was knowingly in possession of the subject dangerous drugs seized for the purpose of unlawful trafficking.
Mitigation
The defendant is now 31 years old. He and his wife were separated since July 2019. He has two sons aged 7 and 6 respectively. He has no prior conviction in Hong Kong. The defendant lived with his father aged 64 and his mother aged 63.
Ms Maria So, counsel for the defendant, submitted a written skeleton for mitigation. Counsel informed the Court that the defendant was educated up to Form 2 and he quit school thereafter. He worked as a part-time cook earning around $500 per day until 2018. He later worked as a lorry driver to deliver goods until around August 2019. On average, he earned about HK$20,000 per month. He would give around $10,000 per month to his family.
Ms So also stated that the defendant was indebted for about $200,000. Since he was unemployed in August 2019, he was unable to repay the loan and keep up with the daily financial expenses. He was tempted to earn quick money to relieve the financial pressure. Ms So also submits that the defendant pleaded guilty at the earliest possible opportunity. She also states that on the material day, he was told to arrive at Kowloon City to pick up the drugs and to wait for instructions. The defendant’s role was only a messenger.
Counsel urged this Court to exercise leniency and stressed that the defendant is very remorseful.
I have received and considered mitigation letters from the defendant himself, the parents, his sister and his wife.
Dealing first with the defendant, he writes that he recognises the mistakes he has made and now realises the seriousness of the conduct to which he has pleaded guilty. His letter tells me that he is deeply remorseful. He promises the Court that he would not reoffend and would equip himself with better skills in prison in the hope of becoming a chef after serving his sentence. His letter concludes with a heartfelt plea to receive as low a sentence as is possible.
His parents have also written letters to the Court. They blame themselves for the conduct of the defendant and for not giving too much care and attention. They tell me that their son has reiterated his remorse for his conduct and the consequences for his parents. They say, and parents are usually a pretty good judge of this, that they think he is deeply remorseful for his crimes.
I have also read the letters submitted from his wife and his sister which show a different person than the one who decided to commit this crime.
I am sure that the defendant learned a bitter lesson from his conduct and in view of the sentence which is my duty to pass upon him, he will suffer the consequences of his mistakes and his remorse will be continued for some time to come. I expressly hope that while he is in prison, he continues with his educational pursuits as he will need every little bit of assistance that such studies will provide him, given the difficult road ahead of him. I have no doubt that he now realises the impact he has had on his parents, and himself and his sons.
The defendant admits that all quantity of drugs is for trafficking.
Sentencing Considerations
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the type and quantity of the drugs involved, the background of the defendant and the mitigation put forward on his behalf.
The defendant had trafficked in four types of dangerous drugs, namely Ice, cocaine, ketamine and F-ketamine.
In this case, F-ketamine, a new psychoactive substance, is involved and at present, there is no sentencing tariff in relation to this drug. However, the prosecution has put before me an expert report from Dr Tony Mak Wing-lai, the Consultant Chemical Pathologist of the Hospital Authority Toxicology Reference Laboratory which laboratory specialises in the detection of new psychoactive substance. His report has been accepted by the sentencing Judge in other cases: eg. HKSAR v Cheung Ho Nam, HCCC 13/2020 and HKSAR v Chung Ka Yan, HCCC 41/2020. According to Dr Mak, F-ketamine has potential for being abused and has been used by local substance abusers since 2019. Its potency is similar to, or slightly higher than, ketamine with slower onset of actions. Further, the physical, psychological and clinical effects of F-ketamine are found to be comparable to that of ketamine.
Given the characteristics of this new drug, I consider the sentencing tariffs for ketamine should apply. Ms So for the defendant also accepts the application of the ketamine guidelines to F-ketamine. Given the small amount of 0.96 grammes of F-ketamine, it will be added to the total amount of ketamine(67.95 grammes + 0.96 gramme = 68.91 grammes).
In the circumstances, the tariffs for trafficking in Ice, cocaine and ketamine are applicable in this case and they were respectively laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, R v Lau Tak Ming & Ors [1990] 2 HKLR 370, AG v Rojas [1994] 2 HKCLR 69, HKSAR v Abdallah [2009] 2 HKLRD 437 and Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.
For 70 to 300 grammes of Ice, a term of imprisonment of 11 to 15 years is called for. For up to 10 grammes of cocaine, a term of 2 to 5 years is called for. Finally, for 50 to 300 grammes of ketamine, a term of 6 to 9 years is called for. There is no reason in the present case to depart from these guidelines.
Since the charge to which the defendant pleaded guilty involved a variety of different drugs, there are two sentencing approaches, that is, the individual approach and the combined approach. See HKSAR v Ko Ka Hing [2009] 4 HKLRD 856. I have also had regard to the principles enunciated by the Court of Appeal in the cases of HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013, and more recently HKSAR v Islam Majharul [2020] HKCA 300 or CACC 67/2019.
Dealing with each of the quantities individually, according to the sentencing guidelines, and on a pure arithmetical calculation, for 117.2 grammes of Ice, the starting point would be around 11 years 9 months. For 8.22 grammes of cocaine, the starting point would be around 4 years and 5 months. For 68.91 grammes of ketamine, the starting point would be around 6 years and 2 months.
To sentence an accused on the individual approach would produce a sentence of about 22 years 4 months’ imprisonment, which would be too high and does not properly reflect the justice of the case.
To achieve a reasonable and realistic sentence, I will use the combined approach which involves upward adjustment from the starting point of the base drug. In the present case, the four drugs attract heavy sentence, but there is dissimilarity in the level. Having considered all the circumstance including the fact that Ice made up the bulk of the narcotics seized, and that Ice is the more serious drug in terms of its potency and the sentencing tariff, I will use Ice as the base drug in the calculation.
As stated above, the starting point for trafficking in 117.2 grammes of Ice is 11 years and 9 months(141 months) imprisonment. In determining the upward adjustment for the remaining 8.22 grammes of cocaine and 68.91 grammes of ketamine narcotic, I examine the overall starting point by checking it against the absurdity test, the conversion test and the ratio test.
Under the absurdity test, the overall starting point based on the Ice sentencing guidelines would be about 13 years and 1 month’s imprisonment; based on the cocaine sentencing guidelines, it would be about 11 years 10 months’ imprisonment; based on the ketamine sentencing guidelines, it would be about 7 years 8 months’ imprisonment.
Under the conversion test, the overall starting point based on the Ice sentencing guidelines is about 12 years’ imprisonment; based on the cocaine sentencing guidelines, it is 12 years and 4 months’ imprisonment; and based on the ketamine sentencing guidelines, it would be 12 years and 3 months’ imprisonment.
The overall starting point based on the ratio test is about 11 years’ imprisonment.
Ms So for the defendant urges the Court to use the ratio test of about 11 years in sentencing. However, as stated above, 117.2 grammes of Ice already attracted a starting point of 11 years and 9 months. To use the ratio test as suggested would not properly reflect the criminality of the offence given the nature and seriousness of the multiplicity of drugs involved in this case.
As stated in HKSAR v Yim Hung Lui Ricky(CACC 266/2011), the ‘absurdity’ test is used to crosscheck the appropriateness of the total sentence. It highlights the difference between the ‘individual approach’ and the ‘combined approach’. However, as is apparent from the authorities, the issue ultimately is whether the totality is correct.
Taking all these matters into account, I consider it fair to make an upward adjustment of 3 months, resulting in an overall starting point of 12 years’ imprisonment, that is, 144 months.
In the present case, four different drugs were seized at the same time. Given the multiplicity of drugs in which the defendant trafficked unlawfully, there are two aggravating features, namely (1) the ability of the trafficker to cater to a wider market and (2) the effect on users of combination of dangerous drugs. The combination of methamphetamine and ketamine were far more potent and dangerous when taken in combination than separately and would pose a greater danger to an abuser: see HKSAR v Cheung Kwok Leung Lowence (CACC 539/2002). And in HKSAR v Ma Sin Yee, CACC 379/2018, [2019] HKCA 942, the Court of Appeal reaffirmed that it is recognised as an aggravating factor to traffic in two different types of dangerous drugs, for the trafficker is then able to cater for a wider market than the trafficker in only one kind of drug. For those two aggravating factors, having taking into account the mitigation advanced on your behalf by Ms So, I am only going to enhance the sentence by 3 months. Therefore, the global starting point which I am going to adopt after enhancement is one of 12 years and 3 months’ imprisonment, that is, 147 months. This starting point could be described as lenient given the number and quantities of the drugs involved.
In relation to the mitigation advanced before me, while it is disheartening for the family to see the law-abiding and caring defendant going to prison, it remains a fact that drug trafficking is a serious offence which brings huge harm to the community.
Conclusion
As pointed out earlier, the defendant pleaded guilty at the committal stage. He would receive the full one-third discount for that. Other than his guilty plea, there is nothing in this case which would warrant any further reduction in sentence. 12 years and 3 months, that is 147 months, reduced by one‑third is a term of 98 months’ imprisonment. I therefore sentence the defendant to 98 months.
Defendant, please stand up. For the matters I have mentioned, I sentence you to an imprisonment term of 8 years and 2 months.