The Summary of Facts
Regarding the 1st Charge, on 27 September 2023, when a customs officer was conducting an anti-narcotics patrol in Yuen Long, the defendant was seen holding four black plastic bags at Sik Kong Tsuen, Ha Tsuen, Yuen Long. As the defendant was acting furtively and walking quickly from the village towards a lamppost number FA8827, he was intercepted for an inquiry. Upon search, a total of four plastic bags containing a total of 997 grammes of a solid containing 865 grammes of ketamine were found in the four bags carried by the defendant.
The defendant was arrested for an offence of trafficking in a dangerous drug. He replied under caution that the white substance were ketamine, a kind of drugs, belonging to him. He would place them at a bush for someone unknown to pick up and would receive $1,000 as remuneration for each bag of the drugs.
One black iPhone, one white iPhone, cash of $250 and a bunch of three keys were found and seized from the defendant. He told the officers that the keys were for access to the 1st Floor, No. 26B of Sik Kong Tsuen, we will refer to that as “the flat”. The defendant was then taken back to the flat for a search.
The following referred to the 2nd Charge. In a room of the flat, a transparent plastic bag containing:
(1) five zip-lock bags containing five plastic bags containing a total of 5.48 kilogrammes containing 4.637 kilogrammes of ketamine; and
(2) two dehumidifiers were found. Further, inside the plastic box were an electronic scale with batteries, an impulse sealer, a pair of scissors, a spoon, a pair of gloves, a bundle of large and small zip-lock bags and a black plastic bag.
Under further caution, the defendant replied that the white substance found in the plastic box were also ketamine, a kind of drugs, and belonged to him. He would also place them at a bush for someone unknown to pick them up and would receive HK$1,000 as remuneration for each bag of drugs. He would use the drug packing tools to pack the drugs.
Upon a further search, it was found next to the plastic bag an unlocked black suitcase in which a total of 18 plastic bags containing 17.998 kilogrammes of a solid containing 15.487 kilogrammes of ketamine were found.
Under further caution, the defendant replied that the white substance were drugs. He would also place them at a bush for someone to pick them up and would also receive $1,000 as remuneration.
The defendant remained silent in his subsequent interview.
Upon manual screening of the defendant’s phones with passcodes provided by him, a total of five relevant photos were found in the recent folder and a total of 26 relevant photos were found and recovered from the recently deleted folder in the photo album in the white iPhone. The said 31 photos were taken over the period from 11 to 27 September 2023 and they each showed a bag of drugs with some figures written thereon being placed on an electronic scale.
As at September 2023, the estimated street value of all ketamine involved was HK$11,943,800, that is calculated at the amount of 488 per gramme.
The defendant accepted and admitted that at the material times, he knowingly possessed all the ketamine found in this case for the purpose of unlawful trafficking.
The following is the background and mitigation. According to the antecedent statement, the defendant was born in March 2002 and is now 23 years of age. He has two criminal convictions, one was for trafficking in a dangerous drug and the other was robbery. He was sentenced to be detained in the Training Centre for both offences. Defendant claimed to have attained education up to Form 1 level and was unemployed at the time of the offences.
Defence counsel, Ms Joyce Wu, in her written submission informed this court that the defendant’s parents were divorced and his father had passed away in 2018. Defendant was residing with his Thai mother, his elder brother, and younger sister at the time of the offences. The defendant worked as a transportation worker after leaving school and earned about $13,000 a month until 2020 when he was arrested and sentenced to a Training Centre. Afterwards, the defendant worked as a part-time waiter, earning around $10,000 per month.
Ms Wu submitted that at the time of the offences, the defendant was the main breadwinner of the family. Due to the economic downturn and the pandemic, both he and his elder brother became unemployed in 2023. They were unable to find a job and the family was running out of savings. Under the influence of bad peers, the defendant was lured into the drug trafficking business to earn quick money.
Ms Wu submitted that the defendant had gained insights upon his misdeed and is now very remorseful. He plans to rehabilitate himself by furthering his study while in gaol so that he could become a law-abiding and useful member of the society when he is released. The defendant’s family are very supportive and the defendant is determined to turn a new leaf.
Turning to the authorities, Ms Wu submitted the total amount of ketamine, that is 20.989 kilogrammes, attracts a sentence of not less than 20 years, that is according to the case of HKSAR v Chan Ka Yiu and Others, reported in [2018] 4 HKC 591. Ms Wu submitted that the defendant was not a drug addict. He was 21 at the time of the offences and he committed the offences due to financial difficulties. Defendant was immature and had underestimated the seriousness of the offences. The defendant’s role was that of a courier or a storekeeper and only one type of drug was involved here. There are no aggravating factors.
Ms Wu submitted the strongest mitigation is the defendant’s guilty plea and urged this court to give the defendant the usual one-third discount. Ms Wu asked this court to impose concurrent sentence for both charges.
Consideration for the Sentence
Trafficking in a dangerous drug is a serious offence. A person convicted of this offence upon indictment is liable to be imprisoned for life and a fine of $5 million. In the case of Secretary for Justice v Hii Siew Cheng, reported in [2009] 1 HKLRD 1, the Court of Appeal set down guidelines for the trafficking of ketamine. Trafficking between 600 grammes to 1 kilogramme of ketamine, the starting point is 12 to 14 years. For the trafficking of over 1 kilogramme, the starting point is upwards from 14 years. In the case of Chan Ka Yiu, the Court of Appeal declined to reconsider the existing guidelines in Hii Siew Cheng.
I also bear in mind that the trafficking of three kilogrammes of ketamine would attract a starting point of 20 years (see the case of HKSAR v Sin Chung Kin [2013] 1 HKLRD 627). And also, that an arithmetic progression for trafficking in much higher quantities should be avoided. That is the case of HKSAR v Lee Tak Kwan [1998] 2 HKC 371.
Now, there are two charges of trafficking in a dangerous drug. In the circumstances of the present case, both offences were committed on the same day and the facts were closely linked. So the proper approach is to have regard to the total amount of dangerous drugs in Count 1 and Count 2 so as to arrive at an overall starting point. Cases supporting this is HKSAR v Chow Yu Chi, CACC 359/2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542, and HKSAR v Wong To [2001] 4 HKC 499. So the total amount of ketamine amounts to 20.989 kilogrammes.
I will now consider the appropriate sentence by applying the six step approach in Herry Jane Yusuph [2021] 1 HKLRD 290.
So the first step, for the trafficking of over 20 kilogrammes of ketamine, the sentence will be from 14 years upwards, that is over 1 kilogramme, the case of Hii Siew Cheng.
The second step, the role of the defendant was that of a courier or storekeeper.
Three, after considering the circumstances of the offence, and bearing in mind the relative young age of the defendant, I am of the view that a notional starting point of 22 years appropriate.
The fourth step, contrary to Ms Wu’s submission, there is an aggravating factor here. The defendant had a previous conviction of trafficking in a dangerous drug and I need to enhance this notional starting point of 22 years. I am of the view that an enhancement of 6 months is appropriate. So the enhanced notional starting point is 22½ years.
The fifth step, apart from his early plea, there are no other mitigating factors. Financial difficulties cannot be used as a mitigating factor to reduce the seriousness of dangerous drug trafficking. So with the one-third discount, the sentence is one of 15 years, equal to 180 months.
And the last step, stepping back to look at the final sentence, that is 15 years, I am of the view that this sentence is appropriate for the criminality concerned.