COURT: The accused pleaded guilty to two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The 1st charge alleged that on the 12th day of January 2021, he unlawfully trafficked in 747 grammes of a solid containing 640 grammes of ketamine outside Village Hall of Tin Liu Tsuen in Yuen Long.
The 2nd charge alleged that on the same day, at the 2nd floor of a building in Tin Liu Tsuen in Yuen Long, he unlawfully trafficked in 987.2 grammes of a solid containing 850.1 grammes of ketamine and 60.58 grammes of a mixture containing 48.37 grammes of heroin hydrochloride.
According to the Summary of Facts to which he agreed, at about 4.15 pm on 12 January 2021, police officers saw the accused and a female, his wife, walking outside the open-space car park area of Tin Liu Tsuen in Yuen Long. And at that time, he was holding two black plastic bags. He separated from his wife and then walked to the Village Hall of Tin Liu Tsuen and threw the two black plastic bags into a garbage cart. The police intercepted him and conducted a search of the two plastic bags. And inside the bags, they found a total of 747 grammes of a solid containing 640 grammes of ketamine plus some other household rubbish.
The accused stated under caution that the ketamine seized belonged to him and he was delivering the ketamine to his customer. He also admitted that there were more ketamine at his flat, at his home premises in the vicinity. So this is the subject of the 1st charge.
The police then conducted a search of his home premises which is the address of the 2nd charge. They entered the flat by using a key found on the accused’s person. Inside the premises, the police found a total of six bags of ketamine and three bags of heroin, the details of which are particularised in Charge 2. There was also an electronic scale, an electronic sealing machine and stacks of unused resealable plastic bags.
The total amount of drugs found at the premises was 987.2 grammes of a solid containing 850.1 grammes of ketamine and 60.58 grammes of a mixture containing 48.37 grammes of heroin hydrochloride.
In the subsequent video-recorded interview, the accused admitted that he was recruited by Fai to traffic in dangerous drugs for a reward of $6,000 per one kilogramme. Fai also provided him with a private car for delivering the drugs. On 10 January 2021, he was instructed by Fai to collect two bags of ketamine from somebody in Sham Shui Po area. He brought the drugs back to his premises, checked the content and confirmed that there were white powder inside. And he was instructed to repack the two bags of ketamine into seven smaller packages, around 250 grammes each. After repacking, he kept the remaining drugs in other small plastic bags. He also took photographs depicting him weighing the packs of drugs on his mobile phone and then sent the photographs to Fai as record. At the time when he was intercepted by the police, he was supposed to bring three packs of ketamine to Tin Shui Wai to a customer.
The accused said he threw the plastic bags containing the ketamine into the garbage cart outside the village hall because he heard some passer-by discussing that there were strangers in the village. He said the remaining four packets of ketamine were left at the premises, and the drug paraphernalia found in the premises were used for drug repacking. Investigation revealed that he was the tenant of the premises at the material time.
The total estimated street value of all the drugs seized is about $1,244,902.
And the accused now admits and accepts that he was knowingly in possession of all the dangerous drugs for the purpose of trafficking.
The accused is now 26 years of age. He has received education up to middle school Year 3 and has worked as a part-time waiter. According to the mitigation submitted by counsel, he had almost no income at the material time because of the pandemic situation. His parents were divorced and at the material time he was living with his wife and a newly born daughter at the premises in Charge 2.
He has conviction for two previous offences of unlawful possession of dutiable goods, and the present offences were committed during the operation period of the suspended sentence for one of those offences.
Counsel in mitigation submitted that he committed the offences out of financial problem. Two letters written by his wife and father respectively were also submitted to plead for leniency. Counsel urged this court not to activate the suspended sentence because it was only 18 days from the expiry of the suspended sentence.
Taking into account the facts of this case, the proximity of time and the location, I will sentence the accused on the basis that he was in overall possession of the drugs in the two charges. I will determine the appropriate overall starting point of sentence for the total amount of drugs involved before imposing the sentence for individual charges.
I take into account the whole circumstances of the case, including its nature and the facts, in particular the type and quantity of the drugs involved, the background of the accused and the mitigation put forward on his behalf. Trafficking in dangerous drug is an extremely serious offence. The reasons for a person’s involvement in the offence and his personal circumstances have little weight in sentencing unless they are exceptional.
In this case, the total quantity of narcotics involved was 1,490.1 grammes of ketamine and 48.37 grammes of heroin hydrochloride. On the guidelines in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and R v Lau Tak Ming [1990] 2 HKLR 370, the starting point for trafficking in 1,490.1 grammes of ketamine is about 15 years and 11 months’ imprisonment (see the cases of HKSAR v Sin Chung Kin [2013] 1 HKLRD 622, HKSAR v Chan Ka Yiu [2018] HKCA 410). The starting point for trafficking in 48.37 grammes of heroin is about 7 years and 10 months’ imprisonment.
To sentence the accused on the individual approach will produce a starting point of 23 years and 9 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 adopt the combined approach which involves the upward adjustment from the starting point of the base drug.
In computing the appropriate sentence, I have had regard to the principles enunciated by the Court of Appeal in the cases of HKSAR v Chan Yuk Leong, CACC 318/2013, HKSAR v Islam Majharul, CACC 67/2019, and the approaches in HKSAR v Herry Jane Yusuph, CACC 93/2019.
In the present case, heroin is the more serious drug in terms of its potency and the sentencing tariff, therefore I will use heroin as the base drug in the calculation as agreed by defence counsel.
In determining the upward adjustment for the remaining 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 would be about 23 years and 4 months (see the case of HKSAR v Abdallah [2009] 2 HKLRD 437). Under the conversion test, the overall starting point based on the heroin sentencing guideline is about 17 years and 2 months’ imprisonment. If based on the ketamine sentencing guideline, it would be 16 years and 9 months’ imprisonment. The overall starting point based on the ratio test is about 16 years and 4 months’ imprisonment.
In the present case, the accused was not merely a courier. According to the Summary of Facts, he collected the ketamine on behalf of Ah Fai and brought it home for storage. After checking and confirming the content, he repacked the ketamine into seven smaller packages. He also sent photographs of him weighing the drugs to Ah Fai for record. When he was intercepted, he was on the way to deliver three small packs of ketamine to a customer as instructed by Ah Fai. The electronic scale, sealing machine and resealable plastic bags in his home were all used for drug repacking. So he was also involved in the packaging and dissemination of the drug in addition to acting as a courier and providing a place for storage.
Taking into account his role and culpability, I take 17 years as the overall starting point after trial.
In this case, two different types of drugs were seized, even though separately packed and not in a prepared mixture. I have had regard to the two possible aggravating features, namely:
(1) the ability of the trafficker to cater to a wider market; and
(2) the effect on users of combination of the dangerous drugs.
And on this basis I further enhance the starting point by 3 months. Therefore the notional sentence after trial is one of 17 years and 3 months’ imprisonment.
The accused pleaded guilty at the earliest opportunity and he is entitled to the full one-third discount of his sentence. There being no other mitigating factor, one-third is the extent of discount he is entitled to. The ultimate overall sentence is 11 years and 6 months’ imprisonment.
To achieve this ultimate sentence and taking into account the principle of totality, I now sentence him to 8 years’ imprisonment for Charge 1. For Charge 2, I impose a sentence of 9 years and 10 months’ imprisonment, 3 years and 6 months of which to run consecutively to the sentence in Charge 1. So the total sentence is one of 11½ years’ imprisonment.
The accused committed the present offences during the operation period of a suspended sentence. On 30 January 2018, he was sentenced to 2 months’ imprisonment suspended for 3 years upon his conviction for unlawful possession of dutiable goods. I do not see any reason not to activate the suspended sentence. I order that the suspended sentence should take effect with the original term unaltered, to run consecutively to the sentences imposed in the present case.