COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug involving 22.6 grammes of a solid containing 19.6 grammes of ketamine; and one count of trafficking in a dangerous drug involving (i) 180.11 grammes of a solid containing 154.88 grammes of ketamine, and (ii) 5.46 grammes of a solid containing 4.78 grammes of cocaine.
On 24 November 2021, at around 3.35 pm, customs officers saw the defendant entering the building of the Metro Winner Hotel in Yau Ma Tei, Kowloon, which I will refer to as “the hotel” in short, and he was looking around nervously. Later, at around 3.42 pm on the same day, customs officers intercepted the defendant when he was walking out of a lift at the lift lobby of the hotel.
The defendant was then searched, and the customs officers found one resealable plastic bag containing 38 resealable plastic bags, containing a total of 22.6 grammes of a solid containing 19.6 grammes of ketamine at the front of the defendant’s underpants.
The customs officers then arrested the defendant. Under caution, the defendant said the aforementioned ketamine belonged to him, and he was delivering it to others for a reward.
Two key cards for accessing Room 1004 of the hotel, which I will refer to as “the room” in short, were also located on the defendant.
At around 3.47 pm on the same day, a Customs Officer used one of the key cards found on the defendant to open the door of the room. The following were found in the room:
One plastic bag containing the following:
(1) one plastic bag containing 33.9 grammes of a solid containing 28.1 grammes of ketamine;
(2) one plastic bag containing 68.6 grammes of a solid containing 59.5 grammes of ketamine;
(3) one plastic bag containing 70.6 grammes of a solid containing 61.2 grammes of ketamine;
(4) 11 plastic bags containing 7.01 grammes of a solid containing 6.08 grammes of ketamine; and
(5) 32 plastic bags containing 5.46 grammes of a solid containing 4.78 grammes of cocaine.
Also found in the room were a large number of resealable plastic bags, two electronic scales and two spoons.
Under caution, the defendant said the ketamine were to be delivered to others. He rented the room for keeping the dangerous drugs and for staying overnight. The staff of the hotel confirmed that the defendant rented the room on 22 October 2021 to stay until 23 December 2021, and two access cards to the room were issued to the defendant.
The combined street value of all the dangerous drugs seized from the room was $141,664 (split between the two drugs as follows: ketamine $136,018 and cocaine $5,645).
The Defendant’s Background and Mitigation
The defendant was 28 years old at the time of the offence, and is now aged 31. He was educated up to Form 2. He is not married. He used to work at a mahjong parlour, earning $30,000 a month. He financially supported his grandmother.
However, under the COVID-19 pandemic, the mahjong parlour closed down. The defendant then worked as a transportation worker for $10,000 a month.
Subsequently, the defendant was persuaded into making more money by trafficking in dangerous drugs. As influenced by the co-workers who were drug addicts, the defendant also started taking drugs. He was therefore also tempted by the free drugs offered to him. For trafficking in dangerous drugs, he made $10,000 to $15,000 a month.
The defendant’s parents divorced in 1994 when he was about 1 year old. He was raised by his mother until 17 years old, when his mother migrated to Canada, leaving him in Hong Kong to be looked over by his grandmother. After this incident, the defendant’s mother has returned to Hong Kong and visited him in prison twice. His aunt and grandmother also visited him in prison.
I have read the letters written by the defendant and his mother, and I accept that the defendant is truly remorseful for his conduct, and that the defendant had taken steps to equip himself with better tools to live a law-abiding life upon his release from prison.
The defendant has one spent previous conviction, but it is not drug-related.
Sentencing Considerations
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 ketamine are provided for in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For quantities of 50 grammes to 300 grammes, the sentencing band is 6 to 9 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.
In respect of Counts 1 and 2, the combined narcotic content is 174.48 grammes of ketamine and 4.78 grammes of cocaine. Following HKSAR v Wan Lau Mei [2014] 4 HKC 75, the Court of Appeal held that where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations, the sentencing court should impose sentences on both offences for the total narcotic content, and then make the sentences concurrent with one another.
Adopting that combined approach, the mathematically calculated starting points for each type of drug is as follows:
(i) For 174.48 grammes of ketamine, the starting point would be 7 years and 5 months’ imprisonment after rounding down.
(ii) For 4.78 grammes of cocaine, the starting point would be 3 years and 5 months’ imprisonment after rounding down.
In the case of trafficking in multiple drugs, according to HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367, the court will first need to consider whether the “individual approach” or the “combined approach” should be used. For the purposes of this case, I would adopt the “combined approach” and use ketamine as the base drug because of the quantity involved, even though it is the less potent of the two 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 179.26 grammes, is assumed to be the same drug. For that amount of ketamine, the starting point would be 7 years and 6 months. For that amount of cocaine, the starting point would be 11 years 5 months.
Under the conversion test, by converting the cocaine sentence into ketamine, this will give a total of 7.37 grammes of ketamine. The starting point for a total of 181.85 grammes of ketamine would be 7 years 7 months. I have also checked this result against a conversion from ketamine to cocaine, that is the other way round, and arrived at a very similar result.
Under the ratio test, 97.3 per cent of the total quantity is ketamine, and 2.67 per cent of the quantity is cocaine. Applying the ratio test would result in a starting point of 7 years and 8 months.
Taking into account the results of the various tests mentioned, I considered it fair to adopt a notional starting point of 7 years and 7 months’ imprisonment for each of Counts 1 and 2.
In respect of the presence of a cocktail drug, thus allowing it to cater for a larger market, I will further enhance the starting point by 2 months.
On the evidence, there is nothing to suggest that the defendant had any further role beyond the culpability of an ordinary courier. I therefore assess his culpability on that basis. I do not see any basis for departing from the mathematically calculated starting points.
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 communities. Although I accept that the defendant is genuinely remorseful, 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 5 years 2 months’ imprisonment for each of Counts 1 and 2. The sentences on Counts 1 and 2 will be served concurrently.
Defendant, I sentence you to a total term of 5 years and 2 months’ imprisonment.