COURT: The defendant pleaded guilty to one count of trafficking in dangerous drugs, involving 787.87 grammes of a crystalline solid containing 774.12 grammes of methamphetamine hydrochloride, which I will simply refer to as “Ice”, 528.71 grammes of a solid containing 313.38 grammes of ketamine, 11.18 grammes of a solid containing 7.94 grammes of cocaine, and 0.59 grammes of a solid containing 0.34 grammes of cocaine and 0.06 grammes of ketamine.
On 23 August 2022 at around 2.30 pm, police officers were conducting an anti-narcotic operation in a flat on 19th Floor of The Hermitage, Mong Kok, Kowloon, simply referred to as “the Flat”. Upon entering the Flat, police officers found the defendant inside the Flat. The drugs as listed in the charge were found on and under a desk inside the Flat, contained in various plastic bags. Also seized inside the Flat were a large quantity of plastic bags, and eight electronic scales.
The combined street value of all the dangerous drugs seized in the Flat was $979,693.
Under caution and in a subsequent video-recorded interview, the defendant admitted inter alia that he was given the dangerous drugs by a person named ‘Ah Chun’ and had repacked them. The defendant said he was waiting for instructions to sell them for “Ah Chun”.
The defendant was 29 years old at the time of the offence. He was educated up to Form 6. He used to have a stable income, but due to the pandemic, he became unemployed. Both his parents have retired and were financially dependent on the defendant.
I have been informed that the defendant committed the present offence because he had a heavy financial burden as he needed to financially support his family, his girlfriend’s family as well as subsidising the medical expenses of his girlfriend’s mother.
I have read the letters written by the defendant, his parents, and Pastor Wong, as well as the certificates submitted by the defendant. I accept that the defendant is truly remorseful for his conduct and has developed a strong Christian faith during his time in custody.
The defendant has previous criminal records but none of them are drug related.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150. I therefore follow the six-step sentencing approach set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned.
The sentencing tariffs for trafficking in ‘Ice’ are provided for in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah [2009] 2 HKLRD 437. For quantities of 600 grammes to 1,200 grammes, the sentencing band is 20 to 23 years.
The sentencing tariffs for trafficking in ketamine are provided for in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For quantities of 300 grammes to 600 grammes, the sentencing band is 9 to 12 years.
The sentencing tariffs for trafficking in cocaine are provided for in R v Lau Tak Ming And Others [1990] 2 HKLRD 370. For quantities of less than 10 grammes, the sentencing band is 2 to 5 years.
The defendant was involved in repackaging the drugs and then selling them. I therefore assess his culpability as an actual direct trafficker. The fact that multiple drugs were involved aggravates the culpability of the offence because the trafficker is able to cater to a wider market, and an increased harm will be caused to users of combinations of dangerous drugs - See HKSAR v Chan Yuk Leong CACC 318/2013 at paragraphs 23 to 25.
In terms of the mathematically calculated starting points for each type of drug:
(1) for 774.12 grammes of ‘Ice’, the starting point would be 20 years and 10 months’ imprisonment, equivalent to 250 months;
(2) for 313.44 grammes of ketamine, the starting point would be 9 years 2 months;
(3) for 8.28 grammes of cocaine, the starting point would be 4 years and 6 months.
In the case of trafficking in multiple drugs, according to HKSAR v Yip Wai Yin And Another [2004] 3 HKC 367, the court would first need to consider whether the “individual approach” or the “combined approach” should be used.
I have considered the case of Chan Yuk Leong, where the Court of Appeal was also dealing with trafficking in the same three types of drugs - ‘Ice’, ketamine and cocaine.
For the purposes of this case, I would adopt the combined approach and use ‘Ice’ as the base drug as it is clearly the dominant drug in this batch of drugs. I will then apply the three means of cross-checking, namely, the “absurdity test”, “conversion test” and “ratio test”.
Under the absurdity test, the quantity of all drugs seized, that is 1,095.84 grammes, is assumed to be the same drug. For that amount of ‘Ice’, the starting point would be 22 years and 6 months’ imprisonment.
Under the conversion test, by converting the ketamine and cocaine sentences into ‘Ice’, this will give a total of 42.02 grammes of ‘Ice’. The starting point for a total of 816.14 grammes of ‘Ice’ will be 21 years and 1 month.
Under the ratio test, 70.64 per cent of the total quantity is ‘Ice’, 28.6 per cent of the quantity is ketamine, and 0.76 per cent of the quantity is cocaine. Applying the ratio test would result in a starting point of 20 years and 2 months’ imprisonment. This is even lower than the starting point for the ‘Ice’ alone in this case.
Taking into account the results of the various tests mentioned, I consider it fair to make an upwards adjustment of 9 months from the starting point for the ‘Ice’ in the present case, leading to a notional starting point of 21 years and 7 months’ imprisonment, equivalent to 259 months.
In respect of the role of the defendant as a direct trafficker and the presence of a cocktail of drugs, I will further enhance the starting point by another 6 months, leading to an increased starting point of 22 years and 1 month’s imprisonment. That is equivalent to 265 months.
I have borne in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44, where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and the community. Although I accept that the defendant is genuinely remorseful and had taken steps to improve himself whilst in prison, personal circumstances in cases of this nature do not constitute mitigating factors and cannot provide the defendant with any further sentencing discount.
The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point, which brings the sentence down to 14 years and 8 months’ imprisonment.
Defendant, I sentence you to 14 years and 8 months’ imprisonment.