COURT: The defendant had pleaded guilty in the Magistrates’ Court to two counts of trafficking in dangerous drugs. The 1st count charged him on 22 April 2022, at spot No. 32, Ground Floor, carpark of Mei Foo Sun Chuen Phase 4, unlawfully trafficked in a dangerous drug, namely, 213 grammes of a solid containing 141.7 grammes of ketamine, and 173 grammes of a solid containing traces of cocaine and 48.3 grammes of ketamine.
The 2nd count charged him on the same day at spot No. 86, same carpark, trafficked in dangerous drugs, namely, 67.8 grammes of a solid containing 33.4 grammes of ketamine, and 23 grammes of a solid containing 9.24 grammes of cocaine and 9.15 grammes of ketamine.
Summary of Facts
On 22 April 2022, Customs and Excise officers conducted an anti-narcotics operation. By around 12.14 pm, defendant looked around in the carpark on the Ground Floor of Mei Foo Sun Chuen Phase 4, Lai Chi Kok, Kowloon. He walked towards
spot No. 32 in the carpark, where a Toyota private car bearing registration mark, UP7837, was parked.
He opened the boot of the Toyota and started arranging the black plastic bag inside the boot. Customs and Excise officers approached the defendant and revealed their identity. Search of the plastic bag found:
(1) a resealable plastic bag, which contained 20 resealable plastic bags containing a total of 13.6 grammes solid containing 9.3 grammes of ketamine;
(2) a resealable plastic bag containing 23.9 grammes solid containing 17.7 grammes of ketamine;
(3) a resealable plastic bag containing 143 grammes solid containing 104 grammes of ketamine;
(4) a resealable plastic bag containing 32.5 grammes solid containing 10.7 grammes of ketamine; and
(5) another resealable plastic bag containing 173 grammes solid containing traces of cocaine and 48.3 grammes of ketamine.
Customs and Excise officers seized from the Toyota in total, 213 grammes solid containing 141.7 grammes of ketamine, and 173 grammes solid containing traces of cocaine and 48.3 grammes of ketamine.
Upon arrest and under caution for contravening the Dangerous Drugs Ordinance, the defendant admitted that the substances inside the black plastic bag were ketamine and cocaine. He said that the substances belonged to him and they were for distributing to other people shortly. He also said that he would receive a reward of several thousand dollars.
Search of the defendant found in his left front trouser pocket, a key to a Mercedes Benz private car bearing registration mark, BB401. The Mercedes was parked at spot No. 86 of the carpark. Search of the Mercedes found in the storage compartment between the driver’s seat and the front passenger seat:
(1) a resealable plastic bag containing 67.8 grammes solid containing 33.4 grammes of ketamine; and
(2) another resealable plastic bag containing 23 grammes solid containing 9.24 grammes of cocaine and 9.15 grammes of ketamine.
Upon further caution, defendant said the substances in the Mercedes too were ketamine and cocaine, and the substances belonged to him and they were to be distributed to other people, for which he would also receive several thousand dollars as reward.
Customs and Excise officers further seized from the defendant a Redmi mobile phone with a SIM card, a Samsung mobile phone with two SIM cards, and cash of HK$19,660.
In total, the drugs seized in the instant case were: (a) 280.8 grammes of solid containing 175.1 grammes of ketamine; (b) 173 grammes solid containing traces of cocaine and 48.3 grammes of ketamine; and (c) 23 grammes solid containing 9.24 grammes of cocaine and 9.15 grammes of ketamine.
The estimated street value of the drugs was HK$220,326.7.
Further enquiries by Customs and Excise revealed that the Toyota was registered under the name of the defendant’s then girlfriend, who had subsequently separated with the defendant and did not know about the defendant’s usage of the Toyota. Meanwhile, the Mercedes was borrowed by the defendant from a friend, who did not know about the drugs in the Mercedes.
At all material times, the defendant possessed all the drugs for the purpose of unlawful trafficking in their entirety.
You are now 41 years of age, and you had the responsibility of taking care of your young daughter by making monthly contributions for her upkeep. You have one previous conviction in 2020, which is unfortunately a similar offence, trafficking in dangerous drugs. You were dealt with in the District Court and was sentenced to 3 years and 2 months.
The total quantity of ketamine found is 232.55 grammes, whereas the total quantity of cocaine found is 9.24 grammes. According to authorities, for ketamine between 50 to 300 grammes, sentence falls into the bracket of 6 to 9 years. And for 9.24 grammes of cocaine, just under 10 grammes, one is looking at 2 to 5 years.
The quantity of ketamine in this case is more and attracts a heavier sentence. It attracts a term over 8 years, whereas the quantity of cocaine attracts a term under 5 years. In the circumstances, I use ketamine as the base drug in calculating how much the sentence on 232.55 grammes of ketamine should be enhanced in view of 9.24 grammes of cocaine.
I am grateful for the calculation by both parties, and according to the calculation by both parties, and having counter-checked with the three tests suggested in Chan Yuk Leong, 8 years and 6 months is about right. The offence which you have committed is not only aggravated by the presence of two drugs, but a significant portion of drugs is already mixed, namely the first lot, 48.3 grammes of ketamine mixed with traces of cocaine.
The Court of Appeal in Chan Yuk Leong has already said it is an aggravating factor if the drug is already mixed because of the effect on users of the combination of drugs.
I am concerned when you last appeared before me about how this aggravating factor should be factored in in sentencing you. On that occasion, I have no medical evidence, so I ask for whether any chemist or medical report can be obtained so that I have some idea of the effect of mixing the two drugs together when consumed.
I now have a report before me by Dr Tung, dated 17 December 2024. He is a consultant of the Castle Peak Hospital. In his report, he said there has been a lack of scientific literature specifically looking into the effect of concurrent misuse of cocaine and ketamine in humans.
He said a study looking at 74 ketamine-related visits to emergency departments in Italy revealed 18.9 per cent of cases reported cocaine use at the same time. While a similar study in Hong Kong reviewing 233 cases showed only 4 per cent of ketamine users who presented to emergency department had concurrent cocaine use. In other words, it is not very popular.
Doctor quoted in his report that in the rat study, ketamine enhanced the metabolism of cocaine, leading to decreased cocaine elimination half-life and increased production of metabolism. If the same holds true in humans, it may promote the drug user to binge cocaine more in order to counter the effect, thus amplifying cocaine’s toxic effects.
Doctor also quoted another rat study. When co-administered, ketamine exacerbates cocaine’s hyper toxicity and increases the likelihood of acute toxic events compared to cocaine alone. Combined use of ketamine and cocaine in rats also induces greater immunosuppression compared to either drugs alone. This includes reduced spleen and thymus rates, degeneration of immune tissues, which may contribute to heightening susceptibility to infections.
He said overdose potential is also heightened by combining the two drugs, as the sedating effect of ketamine may mask or attenuate the stimulant effect of cocaine, promoting the
user to take more cocaine than he or she intends to. The presentation of acute intoxication also becomes unpredictable, increasing the difficulty of diagnosis and prompt medical intervention.
Although there is not a lot of scientific literature on this subject, doctor in his conclusion says misuse of either cocaine or ketamine can cause a wide range of physical and mental sequelae, which have been well documented in medical research. More severe health consequences are observed in chronic heavy users, though precise prediction of effects based on those alone is difficult, as it is also being influenced by other individual factors.
On the other hand, research on the combined effects of cocaine and ketamine on human health is relatively limited, though it is reasonable to postulate that it will increase the risk of potential fatal overdose, cardiovascular events, worse chronic impairments, and psychiatric comorbidities, as well as difficulty in clinical treatment.
In a nutshell, according to doctor, the effect of combining the two drugs together when administered, the harmful effect is more than on their own.
Taking into consideration that you were about to distribute the drugs to other people, your role as a courier and a significant portion of drugs are already mixed, I further enhance the 8 years and 9 months to 9 years and 6 months. Just over 10 per cent. Not only you have a previous trafficking in dangerous drug conviction, but also you commit the present offence some nine months after your release from prison.
The sentence of 3 years and 2 months passed on you by the District Court obviously did not deter you. The Court of Appeal in Lee Ming Ho has said at paragraph 60:
“It is unrealistic, as the court in Abdallah suggested, to treat every defendant who has a prior conviction for trafficking in dangerous drugs as deserving of at least 2 years’ imprisonment if convicted of trafficking in more than 1 kilogramme of narcotics.”
The Court of Appeal quote with approval what was said by them in HKSAR v Har Tsz Yui [2020] 1 HKLRD 307. The Court of Appeal in Har Tsz Yui said:
“Because of the myriad of factors which may be present in a particular case, we think that in the area of sentencing, the amount by which a judge chooses to enhance a sentence for a previous record of similar offence must be one peculiarly within his sentencing
discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual, and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the judge to consider whether and to what extent, subject to submission from the defendant, the sentence might or should be enhanced.”
As Deputy Judge McMahon put the matter in HKSAR v Lam Kwai Wa, a Magistracy appeal:
“It seems to me that, as a matter of logic, the level of enhancement must depend on a number of factors peculiar to a particular defendant in the offence he has committed. Those factors would include primarily, firstly, an assessment of the gravity of the category of offence involved, and secondly, an assessment of the degree of the defendant’s persistence as demonstrated by his criminal record.
Obviously, the more grave the offence, the greater the importance which may be attached to considerations of protection of the public by prevention of future offending by the particular defendant. The greater persistence the defendant has shown in committing the particular category of offence, then the greater again the justification for enhancement of penalty, so as to discourage him from future offences of that sort.
Nevertheless, in my view, two things must not be lost sight of. The original starting point of sentence must be proportionate to the actual offence, and the degree of enhancement must be reasonable.”
Guided by what was said in these cases, I decided I should enhance the sentence by 6 months. The final starting point is one of 10 years. There is nothing in your background, nor what was said you have done while you were in custody moved me to give you any discount.
The Court of Appeal has said on many occasions, even clear record or personal background does not count too much when one deals with serious offence of drug trafficking. The only mitigating factor in your case is your early plea, for which I will give you one-third discount. So the final starting point, which I have adopted, 10 years, is reduced by one-third to one of 6 years and 8 months.
I intend to take a combined approach, and I will pass a sentence of 6 years and 8 months on each charge to run concurrently. So the total sentence on you is one of 6 years and 8 months.