COURT: The defendant, Fong Wai-chung, pleaded guilty to one count of trafficking in dangerous drug to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He was committed to the Court of First Instance of the High Court for sentence.
The Summary of Facts Admitted the Defendant
On the day in question, the defendant was intercepted by the police during an anti-narcotics operation in Sai Wan Ho. The defendant was escorted back to a flat in Shau Kei Wan Road and the place was searched on the strength of a search warrant. The flat was a studio flat.
Under a table in the living area, there was a paper bag containing a transparent plastic box and the box contained 4.45 grammes of a solid containing 3.42 grammes of cocaine. And inside the paper bag were some plastic bags, a paper box, a glass box, and seven plastic boxes, in all of which there were the following in total: 225 transparent resealable plastic bags containing a total of 312.68 grammes solid containing 251.26 grammes of ketamine; and 235 transparent resealable bags containing a total of 28.38 grammes of a solid containing 22.23 grammes of cocaine.
And in the drawer of a wardrobe inside the flat there were four digital scales, a plastic bag containing multiple transparent resealable bags of different sizes, and also a metal hand shovel.
The total quantity of dangerous drugs seized by the police in the flat were 312.68 grammes of a solid containing 251.26 grammes of ketamine, and 32.83 grammes of a solid containing 25.65 grammes of cocaine.
The estimated street value of the ketamine was HK$148,210. The cocaine was between HK$29,810 in powder form and HK$44,189 in crack form.
Under arrest and under caution at the scene for trafficking in dangerous drugs, the defendant revealed that he had helped someone called Ah Ming to distribute the illicit drugs to other people because he had owed some money. The police further seized from the defendant cash of HK$5,020 and also a mobile phone with two SIM cards.
During the subsequent video-recorded interview, the defendant revealed the following. He was unemployed. He owed someone HK$150,000. And in late March 2022 someone called Ah Ming phoned him and offered him a chance to earn quick money. He rented the flat in question upon instructions from Ah Ming.
Ah Ming phoned him later and he collected a paper bag containing the illicit drugs, the boxes, the plastic bags, digital scales, and the hand shovel upon the instruction of Ah Ming. And he repacked the dangerous drugs into smaller bags for distribution using the shovel and scales as instructed, and he is not a drug addict.
The Background and Mitigation
According to the antecedent statement, the defendant was born in 1984 and is now 40 years of age. He appeared in court on five occasions and had a total of 19 convictions. Almost all involved offences of dishonesty. He was educated up to Form 3 and was unemployed at the time of the offence.
He is single and lived with his mother and his sister prior to his arrest. Mr Bernard Yuen, counsel for the defendant, confirmed the particulars in the antecedent statement.
The defendant committed the present offence as he lost his job during COVID and was under severe financial pressure for taking care of himself and his father. During his incarceration, he joined a bible class and some rehabilitation course with spiritual guidance. The defendant was determined to turn a new leaf. The defendant is remorseful and have written to this court asking for leniency.
A course worker of Kun Sun Association confirmed the defendant had completed all the units of the bible course, and a volunteer worker of rehabilitation society also wrote to this court.
Mr Yuen provided this court with the result of the three tests of absurdity test, conversion and ratio test and suggested a starting point of about 9 years and 1 month. He also submitted that there are no aggravating factors and the defendant pleaded guilty at the earliest opportunity, so he is entitled to a full one-third discount.
Consideration for Sentence
Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to life imprisonment and a fine of $5 million.
Now since there are two drugs involved, I will adopt the seven‑step approach in the case of HKSAR v Majharul.
The First Step
Of the two drugs cocaine and ketamine, cocaine is the more serious one, but ketamine is of a larger quantity, so I will use ketamine as the base drug.
The Second Step
According to the sentencing guideline for 251.26 grammes of ketamine, that is the case of Hii Siew Cheng, the starting point is 8 years and 4 months. As the defendant is a storekeeper and courier, I will use this notional starting point of 8 years and 4 months.
The Third Step
Then the third step is I have to decide how much this notional starting point of 8 years and 4 months should be increased to allow for the quantity of the other drug cocaine. So 25.65 grammes of cocaine, according to the case of Rojas and Lau Tak Ming, the starting point is 6 years and 2 months. The total quantity of drugs was 276.91, that is adding to 25.65 to 251.26.
So assuming all the drugs were cocaine, that means 276.91 grammes of cocaine, the sentence would be 13 years and 1 month. Assuming they were all ketamine, that means 276.91, assuming they were all ketamine, it would be 8 years and 9 months. That was the absurdity test.
Now using the conversion test, if one use the cocaine as based, the sentence would be 9 years and 1 month. If using ketamine as base, under the conversion test the sentence would be 9 years and 2 months. With the ratio test, the sentence again 9 years and 2 months.
So taking all these into account, I am of the view that an increase of 9 months to bring the notional starting point of 8 years, 4 months to 9 years and 1 month is appropriate here. Now, that is the third step. What I have just said was the third step.
The Fourth Step
Because there were two kinds of drugs involved and neither quantity could be said to be small, so I will enhance this starting point by 3 months to bring it to 9 years, 4 months.
The Fifth Step
Although the defendant has a number of previous convictions, he does not have any drug‑related ones. So I will not enhance the starting point in view of his previous record. And there are no other aggravating factors to further increase this starting point of 9 years and 4 months.
The Sixth Step
The sixth step is to look at mitigation. The defendant pleaded guilty at the earliest opportunity and is entitled to a one-third discount. With this discount, the final sentence is 74.6 months. I will round it off by using just 74 months, which will be the same as 6 years and 2 months. There are no other mitigating factors to further reduce the sentence.
The Seventh Step
So the seventh step is the last step. Now looking at this sentence of 6 years and 2 months, it is not unfair, it is not unjustly crushing or oppressive.