COURT: The defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in dangerous drugs, trafficking in 13.12 grammes of a solid containing 12.4 grammes of cocaine and 271.5 grammes of a solid containing 216.1 grammes of ketamine. He was committed for sentence and today confirms his plea and agreement to the Summary of Facts.
Summary of Facts
The police were conducting an anti-narcotic operation in the lobby of Tower 8, Banyan Garden, 863 Lai Chi Kok Road, when an officer witnessed the defendant opening the mailbox of Flat E of the 15th floor and collecting a black plastic bag from inside the letter box. Defendant was intercepted, the bag was searched and two transparent resealable plastic bags were found containing ketamine.
The defendant was searched and in a cigarette packet retrieved from his trouser pocket, the officer found two resealable transparent plastic bags containing cocaine. Under arrest for trafficking in dangerous drugs, the defendant admitted that the bag of stuff was his.
Using keys found on the defendant’s person, the police escorted the defendant upstairs to the premises and gained entry. In a small box on a desk, the police found 83 transparent resealable plastic bags containing 12.8 grammes of a solid containing 12.1 grammes of cocaine. They also found an electronic scale, spoons, and a large number of empty transparent plastic bags, paraphernalia normally associated with packing drugs for the purposes of trafficking.
When the cocaine was found, the defendant was arrested again and under caution he admitted that the cocaine belonged to him, he knew he was wrong to commit this crime and he would not traffic in dangerous drugs again. In a subsequent video-recorded interview, he added that he lived in those premises alone and only he had the key to gain access.
It was an admitted fact that an estimated street value of the ketamine was $142,538 whereas the cocaine was between $16,000 and $22,000 depending on whether it was in powder form or in crack form.
Mitigation
I have heard and had full mitigation from Mr Sadhwani. He has said all he can say on behalf of the defendant. The defendant is now 28 years old. He married recently whilst he was remanded in custody awaiting sentence today. The defendant admits that he had a drug habit and because he used cocaine, it led him to commit this trafficking offence. I have taken into account the letter written by the defendant asking for leniency as well as a letter from his wife and mother-in-law I received today.
The defendant is not a man with a clear record. In 2013, he was convicted of possession of prohibited weapons. In 2016, he was convicted of possession of dangerous drugs. In 2019, he was sentenced to 3 years’ imprisonment for trafficking in dangerous drugs. His best mitigation is his plea of guilty today.
I have a letter from Father Wotherspoon dated 7 November setting out the defendant’s assistance to his campaign to combat drug trafficking. The defendant wrote a letter which has been made public describing how he became involved in trafficking drugs and the devastating effect it has had on his family and himself. His newlywed wife is also involved in spreading the anti-drug campaign message. Father Wotherspoon has asked the court to take into account the defendant’s assistance.
The last mitigating factor put forward was a submission by the defence that the defence would consume cocaine regularly and between 4 to 6 grammes of the 12 grammes seized would have been for his own consumption. I have been asked to take into account that after his arrest and upon his remand, he tested positive for cocaine as well as the fact that he has a previous conviction for the possession of dangerous drugs in 2016.
Sentencing
I have considered the approach to the sentence of trafficking drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority. In this case, I accept and am satisfied the defendant was a courier or a storekeeper, therefore his sentence is to be determined by the relevant tariffs and the quantity of dangerous drugs involved.
I have also considered whether to take into account the fact that there are two types of drugs involved here which can be considered an aggravating factor, which may mean an enhancement of sentence. However, I have looked at the quantity of each type of drug as well as the packaging and his role as a storekeeper or courier. I will not, under these circumstances, consider this an aggravating factor.
I agree with Mr Sadhwani that the combined approach in sentencing is preferred. Here we have two types of drugs, a cocktail of drugs. In such situation, a combined approach would usually be correct, preferred, and produce the more realistic and fair sentence. In the combined approach, the court will look at the overall quantity of drugs rather than individual parcels and types. This is opposed to the individual approach of calculating the tariff for each type of drug based on the quantity and adding the tariffs together.
Having been urged to adopt the approach of the conversion rate whereby we will take a single tariff of one of the types of drugs and here it will be ketamine as its quantity is significantly more than the cocaine as is the starting point mathematically.
The tariffs for the drug ketamine are set out in the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In that case, it was held that the sentence for trafficking between 50 grammes to 300 grammes is 6 to 9 years’ imprisonment after trial. Here we have 216.1 grammes of ketamine. After trial, that would in itself attract a sentence of 8 years’ imprisonment.
The tariffs for the drug cocaine follows the tariffs for trafficking in heroin, HKSAR v Pedro Nel Rojas [1994] 1 HKC 342. For the present purpose, the tariffs in R v Lau Tak Ming [1990] 2 HKLR 370 says that trafficking in between 10 to 50 grammes attracts a sentence of between 5 to 8 years’ imprisonment after trial. In the present case, for the 12.4 grammes of cocaine, after trial that would in itself attract a sentence of 5 years and 2 months’ imprisonment. However, in converting that amount of cocaine to ketamine, that would be the equivalent of 33.6 grammes.
In adding that converted amount of 33.6 grammes to the 216.1 grammes of ketamine would equal 249.7 grammes of ketamine. Applying the tariffs to ketamine as I have just set out, the starting point would mathematically be 8 years and 5 months’ imprisonment.
As I have said above, the methodology of this combined approach is to first calculate the applicable sentence for the most significant amount of drug, here ketamine, and then make an upward adjustment to take into account the quantity of cocaine. I have considered the three means of cross-checking whether the sentence would be manifestly excessive. I have considered the absurdity test, the ratio test and the conversion test or the combined approach and I agree with counsel that the conversion test or combined approach is the most favourable starting point for the defendant in the circumstances.
Therefore, using the combined approach, I will take a starting point of 8 years and 5 months’ imprisonment. I will reduce the starting point by 2 months to 8 years and 3 months to reflect the contents of Father Wotherspoon’s letter relating to the defendant’s assistance to his anti-drug campaign.
I see no other mitigation of weight or substance to consider any discount other than that for his plea. There is no evidence that a significant proportion of the drugs was for self-consumption and that submission does not merit an additional discount.
There was no hearing prior to sentence to support such a submission that a small portion of dangerous drugs was for his own consumption. Mr Sadhwani does not push the point that the portion of drugs claimed for self-consumption was significant. It falls short of a significant proportion that is required before court should or would consider exercising its discretion to reduce the starting point to reflect that factor. Moreover, the cocaine was packed into a total of 83 small packets next to packing equipment, packed as if for the purpose of selling as opposed to for his own consumption.
Accordingly, the defendant has pleaded guilty at the earliest opportunity and is entitled to a one-third discount. I have also taken into account into consideration the sixth step of the Herry Jane Yusuph authority. After that discount for a plea is applied to the starting point of 8 years and 3 months’ imprisonment, I sentence the defendant to 5 years and 6 months’ imprisonment.