COURT: The defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in dangerous drugs, trafficking in 6.06 grammes of a solid containing 3.55 grammes of cocaine, 1,670 grammes of a liquid containing 768 grammes of cocaine, 400.41 grammes of a solid containing 192.93 grammes of ketamine and 165 grammes of a solid containing 31.3 grammes of methamphetamine, 4.47 grammes of heroin, and 31.7 grammes of ketamine. He was committed for sentence on 5 October 2023 and today confirms his plea as well as his agreement to the Summary of Facts.
The Facts
On 12 January 2021, the defendant was arrested for the offence of trafficking in dangerous drugs and on the same day, a house search was conducted at his residence.
In his bedroom, the Customs and Excise officers found all of the drugs of this charge in either a drawer of a cabinet in a white bag and a black bag found in front of the cabinet. The customs officers also found four mobile phones, a number of empty zip lock bags, a vacuum sealer, a box of vacuum bags, an electronic scale, an impulse sealer, a spoon, HK$40,000 and three blank cheques.
The estimated street value of the dangerous drugs seized from the bedroom was $2,599,624.37. The defendant admits and accepts that he knowingly possessed all of the dangerous drugs found for the purposes of unlawful trafficking.
Mitigation
The defendant is now 25 years old and has a clear criminal record in Hong Kong. At the time of his arrest, he was single and living with his mother. He was educated up to Form 3. Mr Polson has said all he can say on behalf of the defendant and has highlighted that his best mitigation is his plea at the earliest opportunity and his previous clear record.
Sentencing
It is well established that trafficking in a dangerous drug is a very serious offence. I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and lastly, passing a sentence which is fair, just, and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug, or in this case, drugs found. Here, there are what is described as a cocktail of drugs. The government chemist has found cocaine, methamphetamine, ketamine, and heroin.
The courts have identified two possible approaches where there is more than one type of drug seized. One approach is the individual approach and the second one is the combined approach.
The individual approach would be to look at each component of the cocktail of drugs found and then sentence by adding up different sentences relevant to each individual drug seized. That, however, usually leads to excessively high sentences and this approach is seldom taken.
The second approach is the combined approach whereby the sentencing court looks at the overall quantity of drugs, rather than individual portions. A combined approach would usually be correct, preferred and produces the more realistic and fair sentence. Most often, the applicable sentence for the most or more serious drug is taken, and then adjusted upwards to take into account significant quantities of the less serious or smaller amounts of other drugs. Normally, the more or most serious drug is not a reference to quantity but the potency of the drug. This does however depend on the specific facts of each case.
I have been urged to adopt the approach of the conversion rate whereby I will take a single tariff for one of the types of drugs and here it will be cocaine, as its quantity is significantly more than the ketamine, heroin or methamphetamine.
The tariff for the drug cocaine follows the tariff for trafficking in heroin, AG v Pedro Nel Rojas [1994] 1 HKC 342. For the present purposes, the tariff in R v Lau Tak Ming [1990] 2 HKLR 370 says that trafficking in between 600 and 1,200 grammes will attract a sentence of between 20 to 23 years’ imprisonment after trial. Since the guidelines apply to both cocaine and heroin, I have added up the quantity of those two types of drugs here which total 776.02 grammes. After trial, that would attract a sentence of 20 years and 11 months imprisonment.
The tariff for the drug ketamine is set out in the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In that case, it was held that the sentence for trafficking between 50 to 300 grammes would be 6 to 9 years’ imprisonment after trial. Here we have 224.63 grammes of ketamine. After trial, that would in itself attract a sentence of 8 years and 1 month’s imprisonment. However, in converting that amount of ketamine to cocaine, it would be equivalent to 53.58 grammes.
The tariff for the drug methamphetamine is set out in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. In that case, it was held that the sentence for trafficking between 10 to 70 grammes is 7 to 11 years’ imprisonment after trial. Here, we have 31.3 grammes of methamphetamine. After trial, that would in itself attract a sentence of 8 years and 5 months’ imprisonment. However, in converting that amount of methamphetamine into cocaine, it would be the equivalent to 65.75 grammes.
After converting the ketamine and methamphetamine into the equivalent of cocaine and adding that to the total of 776.02 grammes of heroin and cocaine, this equals 895.35 grammes of cocaine. Applying the tariff for cocaine as I have set out above, the starting point would mathematically be 21 years and 6 months’ imprisonment.
I have considered the three means of cross-checking whether the sentence would manifestly excessive in taking this combined approach. I have checked it against what is described as the absurdity test, the conversion test, and the ratio test.
The second step of the six steps set out in Herry Jane Yusuph is to assess the defendant’s role and culpability based upon the evidence. The drugs were all found in the defendant’s bedroom but there was evidence of packing paraphernalia in the same bags as most of the drugs, as well as a significant amount of cash. In that case, he may not merely be a courier or storekeeper but there is no evidence he actually trafficked in any of the drugs.
What sways me to treat him as a courier and storekeeper is the fact that 768 grammes of the cocaine was derived from a total of 1.67 kilogrammes of a liquid found in a plastic bottle. I would expect this liquid would have to be treated, dealt with, or dried to produce a final product, a solid cocaine. Moreover, in another separate exhibit, there was a total of 165 grammes of a solid containing three types of dangerous drugs, namely, 31.3 grammes of methamphetamine, 4.47 grammes of heroin, 31.7 grammes of ketamine. I doubt that this is a new product on the market and there is no suggestion of that.
I have been upon enquiry informed by Mr Polson that the defendant was instructed to store the drugs, including that mixture and that liquid cocaine until told to deliver it onwards. There was no cooking paraphernalia or tools to dry the liquid cocaine or separate the solid containing the three types of dangerous drugs, so I have no reason to doubt this explanation.
Under those circumstances, I have assessed the defendant’s role to be equivalent to a storekeeper and courier. Therefore, taking into account the third step, his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved.
Accordingly, the appropriate starting point would be 21 years and 6 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I find neither any aggravating or any mitigating factors apply in this case other than the defendant’s plea at the earliest opportunity.
The Defendant did plead guilty at the earliest opportunity and is therefore entitled to a one-third discount. That starting point of 21 years and 6 months is reduced to 14 years and 4 months after that discount is applied.
The last step is to stand back and look at the overall sentence in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of not only the offence but also the defendant. It is a significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Therefore, the defendant is sentenced to 14 years and 4 months’ imprisonment.