The defendant pleaded guilty in the Magistrates’ Court and was committed to this court for sentence on two charges of trafficking in dangerous drugs, namely, Charge 1, 81.3 grammes of a solid containing 65.24 grammes of cocaine and 86.86 grammes of a solid containing 74.01 grammes of ketamine. In Charge 2, 270.92 grammes of a solid containing 199.92 grammes of cocaine and 220.76 grammes of a solid containing 178.67 grammes of ketamine.
Before this court, he confirms his plea and his agreement to the prosecution’s Summary of Facts.
Facts
The incident took place in the forenoon of 8 September 2022. The defendant was intercepted by the police when he was leaving Block 32B of Park Yoho Milano.
Inside the defendant’s backpack, there was a total of 250 transparent resealable plastic bags containing ketamine and a total of 519 transparent resealable plastic bags containing cocaine, all of which the subject matter of Charge 1.
Under caution, the defendant admitted that he possessed the dangerous drugs for the purpose of selling them to others as he was in debt. During the subsequent search of the defendant’s home on the 10th Floor of the same building, the police officers further discovered among other things, the ketamine and cocaine, which were the subject matters of Charge 2, six electronic scales, two pairs of forceps, a large amount of transparent resealable plastic bags and a sealer. The defendant admitted under caution that the dangerous drugs belonged to him and he would sell them to others.
In a later video-recorded interview, the defendant said that he was in debt in the amount of $120,000 and he received the dangerous drugs from a person called “Ah Keung”. Ah Keung asked him to weigh and to repack the dangerous drugs for distributing to others and for this he was promised a reward. He would pass back the dangerous drugs back to Ah Keung and he was about to meet Ah Keung at the time of his arrest.
According to the Summary of Facts, the respective street values of the dangerous drugs under consideration were as follows: (1) ketamine, HK$179,035; (2) cocaine, HK$302,909 (in powder form) or HK$516,003 (in crack form).
Defendant’s antecedent
Defendant was born in Hong Kong and is now aged 29. He was educated up to Form 1 and worked as a part-time warehouse keeper. Before he moved into the flat in Park Yoho Milano Tower, he had lived with his step-father and mother.
The defendant has five previous court appearances involving a total of nine convictions, out of which seven were drug-related including two trafficking. One in November 2012 for which he was sentenced to 4 years’ imprisonment and the other one in March 2021 for which he was sentenced to 36 months’ imprisonment.
He was last discharged from prison (for trafficking and other drug-related offences) on 20 September 2021 which was only about a year before he was arrested again for the present offence.
Sentence
The sentencing approach for the offence of trafficking is laid down in HKSAR v Herry Jane Yusuph which is further clarified in HKSAR v Lee Ming Ho. One of the more salient features of this approach is the moving away from a rigid arithmetical approach with starting points and sentences based purely on narcotic quantity to a more discretionary approach involving an assessment of the offender’s role and culpability.
However, the quantity of the dangerous drugs involved remains the primary determinant in sentencing. Following the sentencing approach in HKSAR v Herry Jane Yusuph, the first step is for this court to identify the relevant guideline bands.
To this end, for Charge 1:
(1) Regarding trafficking in 65.24 grammes of cocaine, the applicable guideline band is 8 to 12 years’ imprisonment. Attorney General v Pedro Nel Rojas and applying HKSAR v Lau Tak Ming and Others. By pure arithmetical approach, trafficking in this quantity of cocaine alone would face a sentence of 100.88 months’ imprisonment.
(2) Regarding trafficking in 74.01 grammes of ketamine, the applicable guideline band is 6 to 9 years’ imprisonment, Secretary for Justice v Hii Siew Cheng. By pure arithmetical approach, trafficking in this quantity of ketamine alone would face a sentence of 75.46 months’ imprisonment.
To assist me in identifying the appropriate starting point for trafficking in these two different kinds of dangerous drugs with a total weight of 139.25 grammes in Charge 1, I conducted the absurdity test, conversion test and ratio test as explained in HKSAR v Chan Yuk Leong for the purpose of cross-checking. The results are as follows:
• Absurdity test : 124.56 months (if all were cocaine);
84.85 months (if all were ketamine);
• Conversion test : 109.57 months (based on cocaine as the most potent drug); and
• Ratio test : 103.46 months.
Having considered the above results in the round, I consider that the appropriate starting point for Charge 1 is 114 months’ imprisonment. This is, however, before any consideration of the defendant’s role in the offence.
For Charge 2:
(1) Regarding trafficking in 199.92 grammes of cocaine, the applicable guideline band is 8 to 12 years’ imprisonment. By a pure arithmetical approach, trafficking in this quantity of cocaine alone would face a sentence of 143.97 months’ imprisonment.
(2) Regarding trafficking in 178.67 grammes of ketamine, the applicable guideline band is 6 to 9 years’ imprisonment. By pure arithmetical approach, trafficking in this quantity of ketamine alone would face a sentence of 90.52 months’ imprisonment.
Similarly, to assist me in identifying the appropriate starting point for trafficking in these two different kinds of dangerous drugs with a total weight of 378.59 grammes, I conducted the absurdity test, conversion test and ratio test.
Applying the applicable sentencing band for this quantity of cocaine (which is 12 to 15 years) and that of ketamine (which is 9 to 12 years), the results are as follows:
• Absurdity test : 176.14 months (if all were cocaine) 117.43 months (if all were ketamine);
• Conversion test : 151.89 months (based on cocaine as the most potent drug);
• Ratio test : 148.43 months.
Having considered the above results in the round and also the presence of more than one type of dangerous drugs which enable the defendant to cater for a far wider market than trafficking in only one kind of dangerous drug, see HKSAR v Yim Hung Lui Ricky, I considered that the appropriate starting point for Charge 2 is 156 months’ imprisonment. This is before any consideration of the defendant’s role in the offence.
I forgot to say just now that when I fixed the starting point for Charge 1, the 114 months, I also take into account the fact that there was more than one type of dangerous drugs involved, which enable the defendant to cater for a wider market than trafficking in only one kind of dangerous drug.
Now, secondly, concerning the defendant’s role and culpability, I am of the view that he was no mere courier or storekeeper but was one rank higher up in the drug business. This is on the basis that he had been entrusted with a large quantity of dangerous drugs by Ah Keung. The defendant admitted that he would weigh the dangerous drugs with an electronic scale and then repack them for distribution. He also agreed that he received money from Ah Keung to rent a flat for the offence.
Thirdly, taking into account the defendant’s role in the offence and his culpability. I consider that an enhancement of 6 months should be added to the starting point of each of the charges. Therefore, the notional sentences after trial of the charges are as follows: Charge 1, 114 plus 6 equals 120 months’ imprisonment; and Charge 2, 156 plus 6 equals 162 months’ imprisonment.
Fourthly, the defendant’s criminal records for similar convictions is an aggravating factor which in my view justify another 6 months enhancement to each of the charges. Therefore, before any reduction for mitigation, the sentences are as follows: Charge 1, 120 plus 6 equals 126 months’ imprisonment; and Charge 2, 162 plus 6 equals 168 months’ imprisonment.
Fifthly, having fully considered the mitigation put forward by Mr Wong, who I trust has said all that could be said on the defendant’s behalf, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely plea.
After deducting the customary one-third discount for plea, the defendant’s sentences are reduced as follows: Charge 1, 84 months’ imprisonment; and Charge 2, 112 months’ imprisonment.
Totality
Finally, I have to consider totality having regard to the fact that the dangerous drugs in Charge 1 and Charge 2 were seized on the same day, and that the two offences are basically arising out of the same matter.
In this regard, I note that the total amount of cocaine in Charge 1 and Charge 2 was 65.24 plus 199.92 equals 265.16 grammes which falls within the sentencing band of 12 to 15 years. And therefore, by an arithmetical approach, trafficking in this quantity of cocaine alone would attract a sentence of 155.73 months’ imprisonment.
The total amount of ketamine in Charge 1 and Charge 2 was 74.01 plus 178.67 equals 252.77 grammes which falls within the sentencing band of 6 to 9 years, and therefore by an arithmetical approach, trafficking in this quantity of ketamine alone would attract a sentence of 101.19 months’ imprisonment.
The total amount of all the dangerous drugs was 517.84 grammes. Applying the applicable sentencing bands for this quantity of cocaine (which is 12 to 15 years) and for ketamine (which is 9 to 12 years) respectively, the results of the absurdity test, conversion test and ratio test are as follows:
• Absurdity test : 215.35 months (if all were cocaine), 134.14 months (if all were ketamine);
• Conversion test : 167.65 months (based on cocaine as the most potent drug); and
• Ratio test : 175.73 months.
And having considered the above results in the round and the fact that more than one kind of dangerous drug was involved, I consider that the appropriate overall starting point before any consideration of the defendant’s role for the two charges is 174 months’ imprisonment.
After taking into account the defendant’s role in the offence and his criminal records, the overall sentence before mitigation should be enhanced by 12 months to an imprisonment term of 186 months’ imprisonment which is reduced to 124 months for plea.
Having stepped back and looking at the matter in the round, I am satisfied that an overall sentence of 124 months’ imprisonment for the two charges is appropriate in the present case.
Conclusion
Therefore, the defendant is sentenced as follows: Charge 1, 84 months’ imprisonment; and Charge 2, 112 months’ imprisonment. And 12 months of the sentence of Charge 1 is to run consecutively to the sentence of Charge 2. Thus, making a total sentence of 124 months’ imprisonment.