COURT: Defendant, on 13 June 2024, you pleaded guilty to two charges of trafficking in dangerous drugs before a magistrate at Eastern Magistracy. As a result of your pleas of guilty, you were committed here to the Court of First Instance for sentence. Both charges were committed on the same date, that is 3 August 2023.
In respect of Charge 1, defendant, you admitted that near the elevator of a footbridge outside M2 Square, No. 120 Lung Cheung Road, Wong Tai Sin, Kowloon, you unlawfully trafficked in 992 grammes of a crystalline solid containing 935 grammes of methamphetamine hydrochloride. In respect of the 2nd charge, you admitted at an interview room at Wong Tai Sin Police Station you unlawfully trafficked in 7.01 grammes of a solid containing 4.88 grammes of cocaine and 1.32 grammes of a solid containing 1.14 grammes of ketamine.
You admitted the Summary of Facts dated 11 June 2024.
The facts of this case are that on the afternoon of 3 August 2023, police officers were conducting an anti-crime patrol at Lung Cheung Road, Wong Tai Sin. At about 4.28 pm, the police officers spotted you holding a brown paper bag and stopped near the elevator of the footbridge next to M2 Square. You placed the bag on a wooden pallet. You then made a phone call and looked around furtively. Police officers therefore intercepted you for inquiries.
Upon search of the bag, the drugs as quantified in Charge 1 were found in one resealable plastic bag within another. At this juncture, you attempted to flee and struggled fiercely, causing the police officers and yourself to fall on the ground. You were eventually subdued and arrested. Under caution, you remained silent. Those are the facts in respect of Charge 1.
In respect of Charge 2, you were brought to Wong Tai Sin Police Station. At about 5.25 pm on the same day, after the police conducted a body search on you, they found the drugs as quantified in Charge 2 inside your underpants. The cocaine was contained in 10 resealable plastic bags and the ketamine was contained in 2 resealable plastic bags.
The estimated street value of the drugs in Charge 1 was $455,328. In Charge 2, if in powder form, the cocaine was worth $8,615, and if in crack form, $9,611, and the ketamine, $689.
You were also found in possession of two mobile phones, HK$700-odd and HK$52 equivalent of Indonesian currency. You were further arrested and remained silent under caution.
In mitigation, Ms Patricia Alva has informed this court that you pleaded guilty at the very earliest opportunity. She has referred to the letter to which you have written to this court, stating that you came to Hong Kong in 2013. You are a Form 8 recognisance holder and a Bangladeshi citizen. You stated that you have made a big mistake and you apologise to the people of Hong Kong.
You were frank to say that as you have committed this big crime, you think you have no right to stay in Hong Kong any longer. I am informed by Ms Alva that you are going to withdraw your non-refoulement claim. However, you have not done so yet.
You are now aged 32, single, and have received primary school education. In Bangladesh, you did odd jobs as a construction worker. You have been in Hong Kong for now 11 years, approximately 11 years. You have one previous conviction in 2021 for possession of dangerous drugs. You were sentenced to 2 months’ imprisonment, suspended for 24 months. Ms Alva submits that upon meeting undesirable peers, you were offered to take cocaine and it was these undesirable persons who provided you with the drugs involved in the present case.
The approach to sentencing in drug trafficking cases are the ones laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150. The application of the principles and steps are as follows.
The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs. In this case, there were three types of drugs, ‘Ice’ in Charge 1, cocaine and ketamine in Charge 2. In the tariff case for the drug ‘Ice’, it is set out in the authority of Tam Yi Chun [2014] 3 HKLRD 691. However, in these large amounts, they are set out in the authority of Abdallah [2009] 2 HKLRD 437. The tariff case for the drug ketamine is set out in the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The tariff case for the drug heroin and cocaine is set out in R v Lau Tak Ming [1990] 2 HKLR 370.
Pursuant to the tariff, where 935 grammes of ‘Ice’ is trafficked, it falls in the band of 1,200 to 4,000 grammes, which attracts a starting point between 23 to 26 years’ imprisonment. For 4.49 grammes of cocaine, that falls within the band of up to 10 grammes, attracting a term of between 2 to 5 years’ imprisonment. For 1.1 grammes of ketamine, that falls within the band of up to 10 grammes attracting a term of between 2 to 4 years’ imprisonment.
In sentencing you defendant, I will take an aggregate of both offences then I shall take a combined and conversion approach by converting the cocaine and ketamine to the more potent drug, ‘Ice’. In sentencing for the amount of 4.88 grammes of cocaine, that would attract a sentence of 3 years and when converted to ‘Ice’, that would equate to about 1 gramme. In sentencing for 1.1 grammes of ketamine, that would attract a sentence of 2 years, which is of such small amount when converted to ‘Ice’, I will convert it to zero grammes. Therefore, the total amount of ‘Ice’ for both charges is 936 grammes which still falls within the same band of 600 to 1,200 grammes.
The second step is to assess the role and culpability of the defendant based on the evidence. In this case, you, the defendant were the courier of the drugs.
The third step is to identify where in the relevant band the defendant came. Defendant, as courier of the drugs, clearly was either taking the drugs to be supplied to somebody else, in respect of the ‘Ice’ and in respect of the drugs in his underpants. The ‘Ice’ was one huge packet of ‘Ice’ whilst the drugs in his underpants were in many, 12 small packets which were clearly for distribution.
Taking into account of the third band of where in the guideline the defendant should lie, I consider that a starting point for both charges in the amount of 936 grammes of ‘Ice’ should be 21 years and 6 months’ imprisonment.
The fourth step is a consideration of any aggravating factors. The defendant’s status as a Form 8 recognisance holder is an aggravating factor. For this aggravating factor, given the quantity of drugs, the different types of drugs and the fact that he was a courier, I enhance the sentence by 1 year to which the notional starting point be one of 22 years and 6 months’ imprisonment.
The other aggravating factor is that there was more than one type of drug. Although Ms Alva has submitted that there should be no enhancement for this amount, for the three types of drugs because 99 per cent of the drugs seized were ‘Ice’, I do not consider that appropriate. The ‘Ice’ was clearly intended for one market or one supplier, to be supplied to one person. The ketamine and cocaine which was contained in his underpants in 12 separate small packets was probably intended for another market. Therefore, the defendant had the ability, having more than one type of drug, in this case, three types of drugs, to cater to a wider market.
For this factor, I enhance the sentence by 3 months, making the notional starting point of 22 years and 9 months’ imprisonment.
I then go on to consider the fifth step, whether there are any mitigating factors. The only mitigating factor in this case and the most significant is the defendant’s early plea of guilty. For that, he shall benefit from a one-third discount to his sentence. The notional starting point being one of 22 years and 9 months’ imprisonment shall be reduced to 15 years and 2 months’ imprisonment to which you shall serve.
Defendant, you are charged with two offences and you therefore must be sentenced separately for both offences, to reflect the total sentence as I have outlined. Defendant, in Charge 1, for 935 grammes of ‘Ice’ I would have taken a starting point, as I mentioned, of 21 years and 6 months, adding 1 year for the aggravating factor as a Form 8 holder to which would have a notional starting point of 22 years 6 months, and after one-third discount that term should be reduced to 15 years’ imprisonment on Charge 1.
In Charge 2, defendant you were trafficking in two types of drugs, ketamine and cocaine. For this charge, I adopt the combined and conversion approach to convert the ketamine to the more potent drug cocaine. The sentence for 1.14 grammes of ketamine warrants a term of 2 years’ imprisonment. It is of such a small amount that I will not convert it to cocaine, so it will be zero. Therefore, I sentencing you on the basis of 4.88 grammes of cocaine. Taking a starting point of 3 years 6 months, giving you the full one-third discount, you shall be sentenced to 2 years 4 months in respect of Charge 2.
To reflect the total term of 15 years and 2 months’ imprisonment, 2 months of Charge 2 is to run consecutive to Charge 1, the remaining term to run concurrent.