At just after 9 pm on 9 January 2019, Lo Kwok-tin (hereafter referred to as “the 1st accused”) was seen emerging from the lift lobby of the ground floor of a building in Kwun Tong. At the time, he was seen pushing a bicycle. Police officers nearby intercepted him for enquiries. The 1st accused told the police that he resided in a room on the 8th Floor of the building and that his girlfriend and two men were inside.
The 1st accused was searched by the police who intercepted him and they found in the trousers pocket of the 1st accused a number of plastic bags containing:
(1) ketamine;
(2) fluorodeschloroketamine (which I will generally call ‘F-ketamine’); and
(3) cocaine.
The 1st accused was thereupon arrested and cautioned for the trafficking in dangerous drugs. He said “Ah Sir, these dangerous drugs are for me to sell to others, give me a chance”.
At the time of the search, the accused was found in possession of two mobile phones, cash of something of the order of $5,200 and a bunch of keys.
Entry was gained into the premises on the 8th Floor referred to by the 1st accused using keys that were found upon him. Inside the premises, the 2nd accused was sitting on the bed and the 3rd accused and a female by the name of “Tsang” were also there. One of the police officers displayed his warrant card and declared that they were police and asked the 2nd and 3rd accused and the young woman not to move. Despite this, the 2nd accused tried to resist entry into the premises and had to be and was subdued.
The police then conducted a search of the premises and in various locations found:
(1) plastic bags containing F-ketamine;
(2) ketamine; and
(3) cocaine.
The drugs found in the premises were found in plastic bags. There were also many empty plastic bags. They found a number of electronic scales. There is no doubt that the police had detected a packaging and storage operation. Each of the accused in their own way took responsibility for their conduct in this enterprise.
The 1st accused was further arrested in the premises and cautioned for trafficking in dangerous drugs and, in reply to the caution, he said “I am responsible for this dangerous drugs warehouse, the two friends helped in delivering dangerous drugs while my girlfriend had nothing to do with it.”
Further, the 2nd accused was arrested and cautioned and said in answer to the caution, “Ah Sir, I came up to help Tin Tin look after this place and package dangerous drugs because I had no work to do”.
The 3rd accused said in answer to the caution administered on him, quote, “It was Tin Tin who asked me to come up, and I am only sometimes responsible for packaging dangerous drugs.”
It is common ground that “Tin Tin” is a reference to the 1st accused.
The 1st accused submitted to a video recorded interview under caution. The effect of his answers was that he was working in a hair salon but quit his job about three months ago. At that time, he was recruited to traffic in dangerous drugs by a person called “Ming Chai” otherwise known as “Ka Ming”. Ka Ming was a secondary schoolmate of the 1st accused. The 1st accused told the officers he was paid $36,000 per month and $5,200 of that was for paying the rent of the premises. The 1st accused told the police that Kar Ming would instruct the 1st accused to pick up dangerous drugs from different locations, usually in Kwun Tong, and take them back to the premises. He would give the 1st accused instructions as to matters relating to weighing the drugs and packaging them.
The 2nd accused also submitted to a video recorded interview under caution. He told police that he knew Tin Tin (that is, the 1st accused) for about five weeks. He said he helped package the drugs in the premises and had a spare key to undertake the packaging work when the 1st accused was away.
The 3rd accused also submitted to a video recorded interview under caution. He told the police that he was unemployed and his nickname was “Sister Ming”. He said that he knew the 1st accused for about two years. He said that the 1st accused asked the 3rd accused to help package dangerous drugs since late November 2018. He knew that the drugs being packaged were ketamine and cocaine. He said in the course of packaging that he had used the electronic scales and the sealing machine which had been found in the flat.
The charge
The accused were jointly charged with unlawfully trafficking in 222.16 grammes of a solid containing 142.84 grammes of fluorodeschloroketamine, 4.93 grammes of ketamine, 620.28 grammes of a solid and 0.39 grammes of powder containing 347.14 grammes of ketamine and 35.47 grammes of a solid containing 22.57 grammes of cocaine.
Procedural history
On 12 January 2019, each of the accused came before a magistrate facing a charge of trafficking in dangerous drugs. Originally, the female found in the premises was on the charge sheet but at some stage the charge against her was withdrawn.
On 8 June 2020, each of the accused appeared before Mr Ho Chun-yiu, sitting as a permanent magistrate in Eastern Magistrates’ Court. On that day, the accused pleaded guilty and each was committed for sentence to this court. They admitted the summary of facts, the essence of which has been outlined earlier in these reasons. The charge to which they have pleaded guilty appears at page 97 of the court record.
Antecedents and mitigation
Before I deal with the individual antecedents and mitigation, can I note as a generality that family members of each of the accused have attended in this court to show support for the accused to which they are related. That is particularly important in these difficult days of the pandemic and I am grateful for it. I am sure that is also true in relation to the accused.
The 1st accused is a 24-year-old man. He was born in Hong Kong. He lived at the premises which were the subject of those raided by the police. He was educated to Form 6 level. Prior to his arrest, he had been a hairdressing apprentice. He had no criminal record. Counsel for the 1st accused has indicated that the 1st accused got into this drug packaging and drug trafficking enterprise because of the fact the hair salon at which he was working closed down and that left him vulnerable to the depredations of Ming Chai, to which reference has already been made. Since his arrest and his remand in custody, he has turned to religion and both his father and the Reverend Dr Joseph Mok have noticed a substantial change in him. I have seen the letters from the father and Dr Mok, which clearly bear this out. It is to be hoped that this change in direction will continue. I also have a letter from the accused, which sets out his remorse for his conduct. I accept that he has changed and is now remorseful.
The 2nd accused is a 26-year-old man. He was born in the Mainland. He was educated to Form 5 level at secondary school in Hong Kong. Prior to his arrest, he had worked as a construction worker. He lived with his mother and father and younger sister in Sau Mau Ping. I have a moving letter from the 2nd accused. He reflects on his failings and, frankly, they are many, and his failings to his family and to himself. He vows to reform himself. I accept that he intends to do that.
The 3rd accused is a 28-year-old man. He was born in Hong Kong. He was educated to Form 5 at secondary school in Hong Kong. He was a customer service officer prior to his arrest. He lived with his parents and older sister and brother at residential premises in Wong Tai Sin in Kowloon. He has a minor criminal record with one conviction a long time again, and given the time that has elapsed since that conviction, I propose to treat him as a person of no previous convictions. The letter from him in which he expresses his remorse for the conduct he has undertaken and realised the harm he was doing. He also reflects in that letter that despite his conduct, his family members visit him regularly on remand, giving him support and encouragement, and it is certainly the sincere hope of this court that that continues. This has also brought home to him, so he says, the value of family. The letter concludes with a declaration, which I fervently hope is acted upon that he will take steps to improve himself. As I remarked during the course of submissions, we are lucky in Hong Kong that prison authorities provide courses which could be taken by prisoners in the position of all three of these accused. They collectively and individually would be fools not to take the fullest advantage of that. I also have a letter from the siblings of the 3rd accused, which make the point of their perception, which is no doubt accurate, that the 3rd accused did not realise how much he cared about his parents and his siblings prior to the crime. The letter outlined the detailed level of support that his family is now giving him.
Value of the drugs
In January 2019, the estimated street value of the drugs, insofar as the various forms of ketamine concerned, 588,000 in relation to cocaine, either 39,000 or 44,000 depending on which form it is left in. For the purpose of estimating the value of the dangerous drugs, the ketamine and the F-ketamine have been aggregated together.
Nature of fluorodeschloroketamine
Fluorodeschloroketamine, that is, F-ketamine, is a comparatively new drug and expert opinion was sought to understand its nature and effect.
An expert opinion was given by Dr Tony Mak, consultant chemical pathologist of the Hospital Authority Toxicology Reference Laboratory and the Chief of Service of the Department of Pathology and Deputy Hospital Chief Executive of the Princess Margaret Hospital. It was included in the bundle of papers with the committal papers. It is not referred to in the facts which are admitted. The parties consent to the court reading and referring to that opinion.
Dr Mak is a highly qualified and experienced medical practitioner, practising as a pathologist. He provided a report. In that report, he commented the F-ketamine is a new psychoactive substance which he characterised as emerging substances of abuse apparently marketed to the public as “legal highs” or “designer drugs”. He expressed the view that this drug is a structural analogue of ketamine. The drug can be characterised as a dissociative hallucinogen which produces psychedelic effects, such as hallucinations, disassociation and out-of-body experience. The drug can also cause confusion, cognitive impairment, mood changes and impair consciousness.
He gave his opinion on the potency of F-ketamine. In this context, “potency” is understood to mean the effect on a person who ingests the substance. Dr Mak observed that F-ketamine shows a comparable potency to that of ketamine.
Further, the nature of F-ketamine was considered by Barnes J in HKSAR v Ng Tsz Ching [2020] HKCFI 257 and by Lee J in HKSAR v So Wan Cheung [2020] HKCFI 759.
In the result, I propose to treat F-ketamine as being, for sentencing purposes, the same as ketamine and to aggregate the two substances together for the purpose of determining the total sentence.
The total ketamine and F-ketamine is 494.91 grammes.
Sentencing principles
Trafficking in ketamine and cocaine - starting point
For many years, the community of Hong Kong has taken a severe view of drug trafficking-particularly in relation to drugs such as cocaine and ketamine and, in relation to ketamine, regardless of which analogue is under consideration. It is easy to see why. This drug has real consequences for the individual. It is capable of being addictive. Dr Mak’s report, so far as ketamine is concerned, details some of the clinical consequences of the ingestion of the drug and these are potentially quite serious. It is to be noted that Dr Mak, in discussing the clinical implications of the new analogues of ketamine, does also deal with the clinical effect of ketamine as it is currently known. It is a very helpful reminder of the dangers to our community. However, there are also serious consequences for the community. One of those involve the deployment of medical and health facilities to help people who ingest these drugs.
The view of the community is reflected in the maximum sentence provided by Section 4 of the ordinance. That provides for convictions on indictment. The maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs which are the subject of the charge in this case.
In relation to ketamine, the sentencing guidelines for trafficking in ketamine were outlined in Secretary for Justice v Hii Siew Ching [2009] 1 HKLRD 1. That case provided guidelines for up to 1,000 grammes of ketamine.
Trafficking in cocaine - starting point
The source of guidelines in relation to the trafficking of cocaine starts with the decision of Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370. The correctness of the guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.
The applicable sentencing guidelines provide for sentences, for quantities between 10 grammes and 50 grammes bracket, between 5 and 8 years’ imprisonment.
Cocktail of drugs
Three drugs were present in the premises and were being carried by the 1st accused at the time of his interception. If the sentences were aggregated, sometimes known as the individual approach, based on a mathematical analysis of the starting points, we are looking at a sentence of something in the region of 16 years and 10 months. That would produce a manifestly unjust result. As a result of that, the Court of Appeal in HKSAR v Chan Yuk Leong CACC 318/2013, held that a series of tests should be considered to arrive at the appropriate sentence. In outline, these tests considered the sentencing exercise as follows:
(1) absurdity test: the court assumes the entire quantity seized contained only the most potent drug;
(2) conversion test: the court compares the guidelines applicable to different drugs to arrive at a conversion rate so that a single outcome could be applied to the entire quantity seized; and
(3) ratio test: the court will take into account the ratio of the weight of different dangerous drugs and their related ranges of sentence.
In this case, the absurdity test is unlikely to produce a meaningful result, given the amount of the most potent drug (that is cocaine) compared to the amount of the less potent drug (that is the ketamine and its variant).
The conversion test would produce a result in a sentence in the order of 11 years and 8 months, on the basis of the cocaine being the basis for the calculation. If, on the other hand, the ketamine (taking the ketamine to be the sum of the ketamine and F-ketamine) is the basis of the calculation because of the dominance in terms of weight of the ketamine, it so happens the conversion test suggests an outcome of 11 years and 7 months. So far as the ratio test is concerned, the outcome is a sentence of the order of 11 years and 6 months.
Pausing there for a moment, I am very grateful to counsel for all of the parties in putting their heads together to do the calculations of the respective tests and what I have just outlined is a reflection of their assistance.
Role of the accused
The other dimension about the figures which are the basis for calculation of each of the three tests may in some circumstances need to be considered against the guidance in HKSAR v Herry Jane Yusuph [2020] HKCA 974 as the interaction between the guidelines and the role of the accused. In that case, the Court of Appeal indicated that, when considering the role of the accused, it may be appropriate to avoid the use of a mathematical calculation of a particular quantity in the context of a particular band in the guidelines. The 1st accused, on his own admission, is the organiser of this storage and packaging facility. At the time he was intercepted, he was taking the quantity found in his possession somewhere. He was taking it to sell it.
Although he has made admissions as to his role in the operation, I do not think it is appropriate to conclude that in proceeding as he did with his bicycle, he was necessarily taking the drugs to Ming Chai, although that is probably what he was doing. His admission speaks about picking up drugs to sell, but not to the target. Nevertheless, on his own admission, he is the ringleader and organiser of the storage and packaging facility at the premises. It is appropriate and just that this role be marked in the sentence.
On the other hand, the 2nd and 3rd accused clearly had an active but subordinate role in the storage and packaging facility. It is clear from the admissions made by the 3rd accused that he was not as often present as the other two. Nevertheless, as between all three of them, the culpability of the 2nd and the 3rd accused is relatively close and so the sentence differential as between them is not of any significance.
As has been noted, the calculations outlined above are a mathematical reflection of the relevant sentencing bands for the drugs in question. Given the predominant and organising role of the 1st accused, it was tempting to sentence on a basis slightly higher than the mathematical calculation. Each of the checking calculations comes out at about the same and, broadly speaking, that is a starting point of about 11 years and 5 months.
What I intend to do is fix the starting points as follows:
(1) 1st accused: 11 years and 6 months;
(2) 2nd accused: 11 years and 2 months; and
(3) 3rd accused: 11 years and 2 months.
In addition, I intend to reduce the sentence of each of the accused by 2 months to reflect the genuine remorse, previous good character and the clear demonstration in each of them that they intend to leave prison a better person than they walked in.
Each of the accused is entitled to the same discount for plea of guilty, having pleaded guilty at the earliest possible opportunity. It follows that each of the accused will be accorded a discount of one-third of the starting point.
Could all of the accused please stand up?
Each of the accused had a clear role in packing and storing a substantial quantity of dangerous drugs. Each of the accused can be treated as persons of no previous convictions and it is clear beyond argument that each of them in their different ways succumbed to the temptation of quick and easy money. Sentencing for trafficking in dangerous drugs appears at first glance to have a remorseless arithmetic about it but deterrence must be paramount in arriving at a just sentence.
I order that you be sentenced as follows:
1st accused: after a one-third reduction of the starting point of 11 years and 4 months, the term of imprisonment to be served is 7 years and 6 months;
2nd accused: starting point of 11 years. Term of imprisonment is 7 years and 4 months; and
3rd accused: after the reduction, 7 years and 4 months.
And that is the order of the court.