COURT: The defendant was charged with two counts of trafficking in dangerous drugs. The 1st charge involved a total of 17.9 grammes of cocaine, and 27.15 grammes of ketamine. The 2nd charge involved 4.34 grammes of cocaine, and 86.1 grammes of ketamine.
In gist, it is alleged that on 30 November 2022, at Room 1903, 19th Floor, of M1 Hotel, 28 Portland Street, Yau Ma Tei, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely, 21.12 grammes of a solid containing 17.67 grammes of cocaine, 31.57 grammes of a solid containing 25.28 grammes of ketamine, and 2.49 grammes of a solid containing 0.23 grammes of cocaine, and 1.87 grammes of ketamine.
On the same day, outside the hotel, the defendant unlawfully trafficked in dangerous drugs, namely, 5.21 grammes of a solid containing 4.34 grammes of cocaine, and 99.3 grammes of a solid containing 86.1 grammes of ketamine.
The defendant pleaded guilty at the Magistrates’ Court on 8 August 2024 and was committed for sentence before this
court. She appeared before me on 24 December 2024, and I adjourned the case for further investigation to be conducted by the police at the behest of the defendant.
During the adjournment, the police investigation has been completed, and the result has been made known to the defence. The information obtained by the police had been assessed to be not of any practical use. In her supplemental submission for mitigation, Ms Lau stated that she would not make any further submissions on the result of the police investigation, and both parties agreed that they are ready to proceed with the sentencing hearing today.
The facts of the case
The two offences were committed on the same day, on 30 November 2022. At around 2.18 pm, the defendant was seen walking out of the hotel and was intercepted by the police at the entrance. Upon search of her handbag, the following items were found, namely, HK$25,000 cash, a car key, a room access card to the room of the hotel, and two mobile phones, each with a SIM card installed.
During initial enquiries, the defendant told the police that she was residing in the room in question, that is room 1903, and that she had rented a private car bearing registration number VR3566 (“the Car"), which was parked in the vicinity.
Equipped with a search warrant and using the access card found on the defendant, the police entered the room and conducted a search therein. Inside a shoe box, the police found and seized some transparent resealable plastic bags, 57 resealable plastic bags containing a total of 55.18 grammes of a solid containing a total of 17.9 grammes of cocaine, and 27.15 grammes of ketamine, and various drug packing paraphernalia, including a pair of scissors, a plastic spoon, a weighing tray, and a digital scale. Next to the shoe box were wads of resealable plastic bags of different colours. These form the basis of Charge 1.
Upon arrest and under caution, the defendant admitted selling the cocaine and ketamine to others to earn quick money and asked for a chance.
The defendant was then escorted to the Car parked outside the hotel. Upon search of the Car using the car key seized from the defendant, the police found a paper bag inside the boot of the Car, which contained the following items:-
(a) Two resealable plastic bags containing 13 resealable plastic bags containing a total of 5.21 grammes of a solid containing 4.34 grammes of cocaine; and
(b) A resealable plastic bag containing 99.3 grammes of a solid containing 86.1 grammes of ketamine.
These form the basis of Charge 2.
Under further caution at the scene, the defendant admitted that the drugs in the Car were also for selling to others for profit and asked for a chance.
In gist, the total amount of drugs seized in this case were 26.33 grammes of a solid containing 22.01 grammes of cocaine, 130.87 grammes of a solid containing 111.38 grammes of ketamine, 2.49 grammes of a solid containing 0.23 grammes of cocaine, and 1.87 grammes of ketamine.
At the time of the seizure, the average street value of cocaine powder and crack cocaine was HK$834 per gramme, and HK$1,469 per grammes, respectively, whereas the average street value of ketamine was HK$601 per gramme. The total street value of the dangerous drugs seized in this case is estimated to be in the range of HK$102,171 and HK$119,064.
In subsequent cautioned video-recorded interviews, the defendant admitted, amongst others, that she delivered drugs at the behest of an acquainted man named “Ah Wai” whom she had met in a bar, in exchange for a daily wage ranging from HK$1,000 to HK$2,000. She had delivered drugs for him since 5 October 2022, every day from 6 pm to 6 am, except Sundays.
The defendant had rented the hotel room in question since 18 October 2022, and was the only person who had access to the room, and had lived there.
She admitted that she knew the dangerous drugs seized from hotel room (the subject of Count 1), and the Car (the subject of Count 2), were cocaine and ketamine, which she had collected from a bush in Jordan.
The defendant would use the paraphernalia, such as the pair of scissors, the spoon, a digital scale and tray, and the resealable plastic bags seized from the room for repackaging the dangerous drugs.
She claimed that the sum of HK$25,000 cash found on her was partly her rewards from the drug trafficking activities, and partly her savings, but she was not sure about the precise allocation between the two. She also stated that she was not a drug user.
The defendant paid a monthly rental of HK$5,500 for the Car since 5 October 2022, and used it for delivering drugs by herself. She was not tasked to collect payment from the drug recipients during the delivery.
The defendant’s background
The defendant is 31 years old, born in Hong Kong, and received up to Form 6 education in Hong Kong. She is single. She comes from a family of four, including her
father who used to be the main breadwinner, earning about $18,000 per month, with $11,000 for rental expenses. However, the father later suffered from depression and other illness, including sepsis and atrial fibrillation, all of which require long-term medical treatment.
Her family members also include the mother, who is also a long-term patient with physical and mental illnesses requiring regular public hospital treatments, and I am told that the mother had developed gambling habits.
The other family member is the defendant’s younger brother who is currently still a university student.
At the time of the arrest, the defendant worked as a driver. She was formerly a police officer as well. She was not a drug addict.
When the defendant was arrested for the present offence on 30 November 2022, she had a clear record. Subsequently, on 8 July 2024, she was convicted on her own plea to one count of dealing with property known or believed to represent proceeds of indictable offence, in short, money laundering, for which she was sentenced in the District Court to a term of 27 months’ imprisonment. That term of imprisonment, I am told, has already been served by the time of her sentence today.
I have received in mitigation the letters written by the defendant’s family members, and today I was handed with another letter written by the appointed chaplain of the Correctional Services Department, Pastor Chang, on behalf of the defendant. These references all prayed for leniency and emphasised to me that the defendant is a kind-hearted person and has, or had at least before the offences, always been well behaved.
In gist, I am told that the defendant committed the present offences, mainly because of her family’s financial strain. Taking on the responsibility of the family’s financial support, the defendant felt immense pressure that drove her to make the unwise choice of pursuing quick money in an attempt to address the substantial debt stemming from her mother’s gambling addiction, which was further exacerbated by her parents’ ongoing medical issues.
I am told in mitigation that since her arrest, the defendant has expressed deep remorse for her actions and has learned a profound lesson from the offences. She has actively participated in different courses whilst in custody. She is committed to reform, and wished to be given a chance to turn over a new leaf in the future, and to help others upon her release. Her family is supportive of her rehabilitation and is committed to helping her get back on the right path after her sentence.
Mitigation
In mitigation, Ms Lau, appearing for the defendant, asked me to consider the circumstances under which the defendant committed the present offences. It was said that the defendant committed the offences because of her role as the sole breadwinner of the family, and the difficulty she encountered in financially supporting her ailing parents with mental issues, as well as her younger brother who is still studying. It was said that the defendant succumbed to Ah Wai’s suggestion about earning quick money by trafficking in dangerous drugs. It was said that the defendant realised that what she did was wrong, and she intended to stop working for Ah Wai.
Whilst the court is sympathetic to the defendant’s predicament, one must bear in mind that as the case authorities speak consistently, personal circumstances and financial difficulties in the circumstances do not count as mitigation for offences as serious as those involved in the present case.
Ms Lau invited me, in mitigation, to consider the defendant’s role and culpability as falling within the lowest end of the hierarchy, namely, that of a courier or storekeeper, as the defendant did not collect any money from the drug purchasers.
Ms Lau also urged me to give the full one-third discount for the defendant’s early guilty plea.
The court is also invited to consider the totality principle and to exercise its discretion to lower the sentence for the present offences, taking into account the 27 months’ imprisonment that the defendant has served for the money laundering offence in 2024 shortly before her plea of guilty for the present case.
Sentencing considerations
For the two charges, the proper approach to sentencing drug trafficking offences has been set out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as complemented by HKSAR v Lee Ming Ho [2024] HKCA 150 which involves a six-step approach.
The first step requires the court to assess the gravity of the offence by looking at the type and quantity of the drug involved. The applicable tariff for trafficking in cocaine is set out recently in HKSAR v Huang Ruifang [2025] HKCA 234 which expressly replaces the old guidelines set out in HKSAR v Lau Tak Ming & Others [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. As to trafficking in ketamine, the tariffs are those set out in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1.
Whilst there are two different –– two individual trafficking counts, they involve the same two types of drugs, namely, cocaine and ketamine, and the facts pertaining to those two charges are closely linked. Hence, the proper approach would be to take into account the total quantity of the drugs in the two charges and derive an appropriate starting point for sentence (see HKSAR v Wong To, CACC 508/2000, and HKSAR v Chow Yu Chi, CACC 359/2000).
For the two charges, the total quantity of cocaine is 22.24 grammes, and the total quantity of ketamine is 1132.5 grammes. For a quantity between 10 and 50 grammes of cocaine, a starting point of between 5 and 8 years’ imprisonment would be appropriate. For a quantity between 50 and 300 grammes of ketamine, a starting point of between 6 and 9 years’ imprisonment would be appropriate. Where more than one drug is involved, the proper approach would be to use the combined approach (see HKSAR v Islam Majharul [2020] 3 HKLRD 146).
Using the sentencing bands identified above as the benchmark, the starting point for the cocaine involved in the present case would be one of 5 years and 11 months. For the quantity of ketamine involved in this case, the starting point is one of 6 years and 9 months.
The three tests
As this case involves more than one type of dangerous drug, the combined approach would be adopted for sentencing, cross-checked with the three tests, namely, the absurdity test, the conversion test, and the ratio test, as illustrated in HKSAR v Chan Yuk Leong, CACC 318/2013.
Absurdity Test
According to the absurdity test, the starting point would be around 10 years and 3 months, which marks the upper threshold of the starting point using the combined approach assuming the entire quantity was cocaine.
Conversion Test
Applying the conversion test, the appropriate starting point would be one of 7 years and 4 months if all the drugs are converted to ketamine, and one of 8 years and 2 months if all the drugs are converted to cocaine.
Ratio Test
Applying the ratio test, the overall starting point would be one of 7 years and 7 months.
Bearing that in mind, and in the circumstances of this case, I take the view that a starting point of 7 years and 7 months, cross-checked against the result of the three tests that I have just mentioned would produce a just outcome.
Turning to the second step, the court is required to consider the defendant’s role and culpability. As submitted by Ms Lau in mitigation, the defendant acted as a courier or storekeeper, and that she had never collected any money from the drug buyers.
Whilst accepting to some degree that submission of Ms Lau, I am mindful of the fact that the defendant’s role, insofar as the two trafficking offences are concerned, was more than just a mere courier or storekeeper. Her role was that of a person who agreed to store dangerous drugs on behalf of a person who trafficked in dangerous drugs and delivered the drugs in accordance with the instruction that she received from that other person, Ah Wai. Because she was performing these functions, particularly, the fact that she had actually rented the hotel room for the storage of the drugs, as well as the Car which she used for delivery of the drugs, and that she was the only person having full exclusive access to the room and the Car, her culpability would be more serious than that of a mere courier or storekeeper. Furthermore, as she frankly admitted in the video-recorded interviews, she actually engaged in repackaging the dangerous drugs in the room with the paraphernalia found therein. These features clearly heightened her culpability and thus warrant an enhancement in the sentence for trafficking in the dangerous drugs involved.
As the third step, I will identify where in the relevant band of the guidelines the defendant comes. Taking into account my assessment of the defendant’s heightened role and culpability, and the quantities of the drugs involved, I would adopt a slightly higher starting point for both charges, Count 1 and Count 2.
In my view, an overall starting point of 7 years 10 months’ imprisonment would be appropriate, that is, adding three months to the notional starting point that I have earlier on identified.
The fourth step is to consider whether there are any further aggravating factors. As the courts have consistently observed, the availability of more than one type of drug involved in trafficking activities must have enabled the offenders to reach a wider market, hence, the requirement for deterrence (see HKSAR v Chan Yuk Leong, at paragraph 23 to 25, HKSAR v Wong Wang Hing [2023] HKCA 729 at paragraph 10 and 11, and HKSAR v Husain Saddam [2018] HKCA 55 at paragraph 22).
I note that there were two different types of drugs involved in the present case, both of which are of substantial quantities and of prevalence. Therefore, for this aggravating factor, I consider that an enhancement of three months from the starting point that I have just adopted to be appropriate, bringing the sentence to one of 8 years and 1 month, namely, 97 months.
The fifth step is to have regard to any matters of mitigation. I have taken into account all mitigating factors said on behalf of the defendant. As mentioned, it is trite that personal circumstances bear little weight as a mitigating factor for offences as serious as the present. Apart from the defendant’s timely and early guilty plea, I find no other mitigating factors that would warrant a further reduction of sentence, except for a matter that I would address later in these reasons in respect of totality.
For the defendant’s early plea of guilty, I am prepared to give a full one-third discount to her. The overall sentence for Counts 1 and 2 is, hence, reduced to one of 5 years and 4 months. That is 64 months after rounding down.
The sixth and final step is for the court to stand back and look at the overall sentence passed in order to ensure it is a fair, just and balanced sentence. For that, I need to consider not just the overall sentence that I have just identified, namely, 5 years and 4 months for Counts 1 and 2 in the present case, but also the totality of the sentences that the defendant would be subject to, bearing in mind the term of imprisonment that had been imposed on her for the money laundering case.
As I have mentioned, the defendant had been sentenced to 27 months’ imprisonment on 8 July 2024 for that money laundering case. And for that purpose, I have on the last occasion asked for, and have now been provided with relevant information, as well as further mitigation advanced by Ms Lau in respect of that other money laundering sentence for which the defendant has already served.
That brings me to a consideration of totality. As I have bene apprised of the relevant background facts pertaining to
the money laundering case, I am in a position to consider an exercise of discretion in reducing the sentence for the present trafficking in dangerous drugs offences.
In respect of the money laundering case, I have been informed that the defendant was a holder of a bank account which she lent to a friend of hers whom it is said she met in primary school. That money laundering offence involved a total sum of around HK$4.3 million, part of which, namely, HK$3.4 million, could be traced to frauds perpetrated on three victims.
The money laundering offence was committed between 21 October 2019 and 3 February 2021, but the plea and sentence hearing for that offence only took place on 8 July 2024; that is about five and a half months before she appeared before this court on 24 December 2024 for the present drug trafficking offences.
The money laundering offence was by nature entirely separate and distinct from the current drug trafficking offences, and the facts giving rise to the two cases are completely different. However, had the two cases been heard together, the defendant would be entitled to rely on the totality principle and ask for an overall sentence that takes into account such totality principle to be imposed.
Having considered all the relevant circumstances, as well as the further mitigation advanced by Ms Lau on behalf of the defendant, including the case of Secretary for Justice v Mak Wai Hon [2000] 1 HKC 498, submitted by Ms Lau, I am prepared to exercise my discretion and reduce the overall sentence for the two drug trafficking charges in the present case by 4 months, which will bring the sentence to one of 5 years’ imprisonment for both charges to give effect to the totality principles.
In the process of imposing sentences for the present offences, regard must be had to the totality principle to ensure that the overall sentence to be served is appropriate to the defendant’s overall culpability.
Taking that into account, the final sentences I would impose on the charges now before me are as follows. For Charge 1, the final sentence to be imposed is 4 years and 3 months. For Charge 2, the sentence imposed is 4 years and 4 months.
Given the appropriate overall sentence for both charges should be based on the combined quantity of drugs as I have explained earlier on in the six-step approach, I consider it appropriate to order 9 months of the sentence on Charge 2 to be served consecutively to the sentence on Charge 1, resulting in a total sentence for both charges of 5 years’ imprisonment.
Standing back and looking at the overall sentence passed, I am satisfied that it is one that is fair, just and balanced, and one that has taken into account the distinct factual background underlying this case and the money laundering case for which the defendant has earlier on been sentenced.
Yes, defendant, you are sentenced to a total term of 5 years’ imprisonment for the two charges.