COURT: You have pleaded guilty to one charge of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of the offence are that you, on 1 November 2023, at Room 922, Wing Wai House, Sun Tin Wai Estate, Tai Wai, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely, 1,506 grammes of a solid containing 1,308 grammes of ketamine.
The Facts
The facts admitted by the defendant are these.
At about 6.55 pm on 1 November 2023, police officers saw the defendant leaving Room 922, Wing Wai House, Sun Tin Wai Estate, Tai Wai (“the Room”) alone and intercepted him. The defendant was brought back to the Room. Upon search of the Room, a paper bag was found on the upper bunk bed in the defendant’s bedroom containing six sets of plastic bags, each containing 251 grammes of a solid containing 218 grammes of ketamine, amounting to a total of 1,506 grammes of solid containing 1,308 grammes of ketamine. A nylon bag containing an electronic scale, a plastic bag, sealer, and a number of empty plastic bags were also found.
The defendant was arrested and admitted under caution that as he was unemployed, he delivered drugs for a reward. In a video-recorded interview, the defendant admitted under caution that:
(a) On 31 October 2023, a male called ‘Ah Shing’ offered him a job for earning quick money and instructed him to buy packaging paraphernalia in Yau Ma Tei.
(b) At about 8 pm, on the same day, an unknown male drove a light goods vehicle to the car park of the defendant’s housing estate and passed the dangerous drugs to the defendant.
(c) He received WhatsApp messages from a mobile number instructing him how to handle and pack the dangerous drug, and a reward of $4,000 would be given to him after delivery.
(d) This was the first time he had trafficked in a dangerous drug.
(e) He had used the packaging paraphernalia to pack the dangerous drug but did not know the type of dangerous drug he had dealt with.
WhatsApp messages exchanged between the defendant and the said mobile number from 31 November to 1 November 2023, showed that the defendant asked how to pack the dangerous drug and was instructed to mark numbers on the plastic bags and how to use the plastic bag sealer. Most of the messages sent by the other person had been deleted by that person.
The estimated prevailing street value of the drug seized was $936,732.
The defendant admits that he unlawfully possessed the dangerous drug seized for the purpose of trafficking.
Background and Mitigation
The defendant is 35 years of age. He was 33 years old on the day of the offence. He is single. He received education up to Form 3. He is locally born. His father is 72 years old and his mother is 67 years old. Both are retired. The defendant lived with his parents before his arrest. He has no drug-related previous convictions.
Before his arrest, the defendant worked as a casual labourer at construction sites, earning approximately $6,000 per month. He was the sole breadwinner of his family and provided financial support to his parents, for whom he was the primary caregiver. Owing to the COVID-19 pandemic and the general economic downturn, his financial situation had become strained.
In mitigation, counsel for the defendant submitted that the defendant committed the offence for quick money as a result of financial pressure. Counsel submitted that the defendant was a courier and packager whose role was at the lowest end of the trafficking hierarchy. Counsel submitted a notional starting point of 15 years and 2 months’ imprisonment by lenient interpolation within the reference band. Counsel further submitted that there are no aggravating factors in the present case.
As the mitigating factors, counsel submitted that the defendant pleaded guilty to the charge at the earliest opportunity and that the defendant was remorseful for his conduct. Counsel emphasised the defendant’s family background and asked the court for a lenient sentence.
Sentencing Considerations
With the Court of Appeal’s guidance in HKSAR v Lee Ming Ho, I now consider the six-step approach as set out in the case of HKSAR v Herry Jane Yusuph.
First step: identifying the relevant guideline band. The relevant guideline for trafficking in ketamine is set out in Secretary for Justice v Hii Siew Cheng and HKSAR v Sin Chung Kin, which provide that trafficking in 1,000 to 2,000 grammes of ketamine attracts a starting point range of 14 to 18 years’ imprisonment after trial.
The quantity involved in the present case is 1,308 grammes of ketamine. By linear interpolation, the notional starting point is 15 years and 2 months’ imprisonment.
Second step: the defendant’s role and culpability. The guidelines are set for the least culpable of drug traffickers, namely, the courier or storekeeper. I accept that on the facts the defendant was acting as a courier and packager who was recruited to pack and deliver the drugs. He was instructed by others through WhatsApp messages on how to handle and pack the dangerous drugs. There is no evidence to suggest that his role went beyond that of a courier and storekeeper. As such, there is no enhancement on account of the defendant’s role.
Third step: placement within the guideline band. Considering the overall and culpability of the defendant, I find that the notional starting point of 15 years and 2 months’ imprisonment, ie 182 months’ imprisonment, remains appropriate.
Fourth step: aggravating factors. I find no aggravating factors beyond those inherent in the offence itself and those already reflected in the assessment of the role and culpability.
Fifth step: mitigating factors. The defendant pleaded guilty at the earliest opportunity, for which he is entitled to the full one-third discount. The sentence after the deduction is 121 months.
As for the personal and family circumstances of the defendant, the Court of Appeal has stressed repeatedly that they carry little weight in serious drug trafficking cases. While I have sympathy for the defendant’s difficult financial circumstances and his role as sole breadwinner for his elderly parents, these matters cannot carry significant weight. I do not make any further reduction on these accounts.
Sixth step: totality and overall fairness. After the deduction as stated, the sentence is 121 months’ imprisonment. I have stood back and considered the sentence as a whole. The sentence is undoubtedly severe. However, having regard to the seriousness of the offence and the defendant’s role and culpability, I am satisfied that the sentence is fair, just and balanced to the offence as well as to the defendant.
Sentence
You are therefore sentenced to 121 months’ imprisonment, namely, 10 years and 1 month’s imprisonment.