At the time of his arrest on 12 June 2015, he was found in possession of 7.28 grammes of herbal cannabis as described in Count 1. Far more significantly, he was found in possession of a set of keys which led to the search of premises at 61 Pilkem Street in Yau Ma Tai, which he had just left when he was arrested. The Customs Drug Investigation Bureau team who have investigated this case found no less than seven types of dangerous drug in the place used by the defendant for trafficking. That is not to suggest that he was alone in doing so but he is the only person who has been arrested in this case.
These seven types of drug and other types in much smaller quantities had a combined value of $79,685 which, of course, is the street level price. The principal drugs, again, set out in Count 2, were cocaine, heroin hydrochloride, ketamine, MDMA, usually referred to as Ecstasy, herbal cannabis and cannabis resin.
This was not all because, during the time this defendant had been under observation, he had been seen to go to a second address which was at 20-24 Jordan Road, very close to the premises where the drugs in Count 2 were found. The keys for this second location were found at the first address. The defendant told the customs officers the precise place where the keys fitted and he was then taken over to that address with those keys.
Here, in Room A, Flat M, on the 14th Floor, a much larger quantity of drugs was found. There were six principal types of drug as well as other types in smaller quantities, which are set out in Count 3. Dealing with the narcotic content and the weight of that content, the main drugs were 859 grammes of methamphetamine hydrochloride, usually referred to as ‘Ice’, 633 grammes of ketamine, 230.17 grammes of cocaine, 58.5 grammes of MDMA, Ecstasy, 1.57 kilogrammes of herbal cannabis and 721 grammes of cannabis resin.
The combined street value of these drugs inside the second address was estimated at $1,601,623.
From the large quantities found by the customs officers and the wide selection of drugs being trafficked, it is perfectly plain that this was a relatively major supply source and a large-scale enterprise. Not only is the variety of drugs an aggravating factor because this would enable the defendant, and the gang he was with, to supply a wider market than otherwise, but so also is the abuse by the defendant, in spite of Mr Sherry’s able argument to the contrary, of the hospitality afforded to him which allowed him to be at liberty in Hong Kong while his torture claim was being processed, despite the fact that he had lost on the first hearing.
The authority for that is HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, and furthermore, as I have already said to Mr Sherry, the defendant was obviously much more deeply involved than a mere courier or he would not have been entrusted with the keys to both addresses where drugs were stored.
As it is, the only real mitigation is the plea of guilty and for that, the defendant is entitled to a discount of one-third on the sentence that he receives. I have asked counsel on both sides to prepare what they understood to be appropriate starting points for the drugs in this case so that they could put forward their own views before I formed my own opinion. Mr Donald, for the prosecution, adopted the figures worked out by Mr Sherry.
As it turns out, save in regard to the overall starting point for sentence to be imposed after trial, there is very little material difference between my own view and that of Mr Sherry.
The sentencing guidelines for cocaine, heroin and ‘Ice’ are now very similar and all feature in this case. There was, of course, also a large quantity of ketamine and a smaller quantity of Ecstasy, both of which are the subject of the guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. There are separate guidelines for herbal cannabis and cannabis resin but I take the view that the quantity of these two types of cannabis adds little to the case other than, as I have said, illustrating that a much wider market was being supplied with dangerous drugs than would have been the case where only one type of drug was on offer.
The cocaine, methamphetamine and heroin in Count 2 combine to make a total of 26.33 grammes of which methamphetamine was the principle ingredient, weighing 19.02 grammes.
In addition, there were 69 grammes of ketamine mixed in with the methamphetamine which would justify a starting point of 6 years and 3 months’ imprisonment after trial. Applying the conversion test in HKSAR v Chan Yuk Leong, CACC 318/2013, this would equate with about 8 grammes of methamphetamine, bringing the total to 25.33 grammes. Under the guidelines for sentence in cases involving methamphetamine in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, this would justify a starting point of about 8 years, whereas under the heroin and cocaine guidelines in Lau Tak Ming & Others [1990] 2 HKLR 370, a starting point of 6 years and 9 months would be justified. As Count 2 is of little significance when considered in relation to the much larger quantity in Count 3, I will simply adopt the lower starting point of 6 years and 9 months.
Now I turn to Count 3. Here, there were 862.47 grammes of methamphetamine, almost all of which was in the form of what is colloquially called ‘Ice’. The cocaine weighed 230.17 grammes. In addition, there were 58.5 grammes of MDMA, or Ecstasy, and 633 grammes of ketamine were found. Those last two drugs are the subject of the guidelines in Hii Siew Cheng and a combined weight of 691.5 grammes would appear to result in a starting point sentence of 12½ years’ imprisonment after trial. Similarly, 230.17 grammes of cocaine under the Lau Tak Ming guidelines which were adopted for cocaine in the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, would justify a starting point of 12½ years’ imprisonment.
Converting both of these to the tariffs set out for ‘Ice’ in Tam Yi Chun, the ketamine and the Ecstasy would seem to come to an equivalent of 160 grammes of ‘Ice’ and so also would the cocaine. Therefore, the resulting weight in terms of ‘Ice’ would come to 862.47 grammes plus 160 times 2 which equals 1,182.47 grammes, which is the figure I gave Mr Sherry earlier on. Such a quantity, following HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, adopted for cases involving methamphetamine hydrochloride, ‘Ice’, would fall into the tariff guidelines for 600 to 1,200 grammes, for which 20 to 23 years’ imprisonment is recommended, after trial.
I will therefore adopt a starting point of 23 years’ imprisonment and I propose to enhance this by 12 months, to 24 years, for the reasons I set out earlier, namely, the large variety of drugs being trafficked and the abuse of hospitality whilst awaiting a claim for asylum.
This last point is particularly relevant in the face of these statistics with which I have been provided which show, amongst other things, that in 2015, the year when these offences were committed by the defendant, 4,476 crimes were committed by those on recognisance, as this defendant was.
Your sentence, if you had been convicted by a jury after trial, would have been 24 years’ imprisonment. As it is, you have very sensibly pleaded guilty and accordingly, you will receive the full discount of one-third. Your sentence on Count 1, from the starting point of 3 months, is 2 months’ imprisonment. Your sentence on Count 2, from a starting point of 6 years and 9 months, is 4 years and 6 months. Your sentence on Count 3, from a starting point of 24 years, is one of 16 years’ imprisonment. All these sentences are to run concurrently.
I simply add that if, in due course, you are able to adduce further worthwhile mitigation, then your course of action will be to invite the Court of Appeal to consider that further mitigation so that they are able to assess its weight in due course.