COURT: The defendant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
It is alleged that he, on 5 August 2020, at Room 9013, Flat B, Long Life Industrial Building, No. 15 Ko Fai Road, Kowloon, in Hong Kong (“the room”), unlawfully trafficked in dangerous drugs, namely 221 grammes of a solid containing 190 grammes of ketamine and 855 grammes of cannabis in herbal form.
The defendant pleaded guilty to the charge before the magistrate at the committal proceedings and was committed to the Court of First Instance for sentence on 17 October 2022.
He comes before me today for sentence. He confirms his plea to the amended charge with the quantity of drugs stated therein corrected and admission to a set of Amended Summary of Facts produced by the prosecution.
Facts of the case
The facts giving rise to this case are as follows:
On 21 May 2020, using an Instagram account created for the purpose of conducting investigation, decoy police officer spotted an Instagram account with the user name “hk420king” (“the Instagram account”). The profile of the Instagram account displayed photographs suggestive of dangerous drugs trade, especially cannabis. The decoy officer started communication with the user of the Instagram account on the same day. They maintained contact and met each other twice on 4 June 2020 and 8 August 2020 respectively.
At about 9.50 pm on 5 August 2020, the defendant was intercepted by officers for investigation. Under caution, he stated that he could bring the officers to the room where cannabis was stored. The officers conducted a search on the defendant and found, amongst other things, cash in the sum of $2,700 and two iPhones.
Later that same night, at about 11.38 pm, the officers brought the defendant to the room. Using the key possessed by the defendant, they entered the room, conducted a search therein and found the following items underneath a desk:
(a) a plastic packet containing a plastic packet containing 497.9 grammes of herbal cannabis;
(b) 73 plastic packets containing a total of 357.1 grammes of herbal cannabis;
(c) a paper envelope bag containing 17 plastic bags containing a total of 221 grammes of a solid containing 190 grammes of ketamine; and
(d) various packaging tools including a weighing scale, two sealing machines, a box of gloves, five piles of plastic bags, scissors, two recycled bags and two rolls of adhesive tapes.
It was also found in the room a tenancy agreement under a person named Wong Tsz-hin (“Wong”) who rented the room at a monthly rent of $3,500 from 27 July 2020 to 31 July 2022.
When the defendant was arrested, he stated under caution that the cannabis and dangerous drugs all belonged to the two other persons named “Ah Pui” and “Kum Chai” and that he only helped those two persons to package and deliver the drugs to customers, earning a few hundred dollars each time.
In subsequent video-recorded interviews, the defendant said, amongst other things, that:-
(a) He would deliver the drugs in the room to the customers whom he had got acquainted through Instagram.
(b) About half a year ago, he opened the Instagram account, put some cannabis photos on it and waited for approaches from customers.
(c) He was responsible for letting others know that he had cannabis to sell on Instagram, and he was also responsible for liaising the price with customers. After receipt of the orders, he would inform “Ah Pui” to settle the orders. For each order, he would receive a few hundred dollars only.
(d) He arranged Wong - that is Wong Tsz-hin - to rent the room, and when an order was received, he would tell Wong to pass the cannabis to the drivers responsible for delivering the drugs.
(e) As to the transaction on 5 August 2020, he delivered the drugs himself because the driver who was originally responsible for that was not available and he wanted to earn some money.
(f) He started the operation in the room from about 21 or 22 July 2020.
(g) He was recruited by “Ah Pui” to package the drugs about half a year ago. “Kum Chai” was the person who taught him how to package and handle cannabis. He passed the knowhow to Wong who would repackage the cannabis into smaller bags.
(h) He himself had attended the room to monitor the packaging and knew that there were dangerous drugs in the room.
As to the total of 855 grammes of herbal cannabis and 221 grammes of a solid containing 190 grammes of ketamine found in the room, the estimated street values at the time were, for the ketamine, approximately $123,981 and, for the herbal cannabis, in excess of $180,000.
The Defendant’s Background
The defendant is now 24 years old and was 22 at the time of the offence. He was born in Hong Kong and received education up to Form 4 here. His father is aged 68 and his mother is aged 52. He also has a brother aged 21. Both of his parents are present in court today.
Before his arrest, the defendant lived with his family and had been unemployed for three years. He has no previous criminal conviction record.
Sentencing Principles and Tariffs
The courts of Hong Kong have for many years taken a serious view and approach in handling cases of drug trafficking, particularly in relation to drugs which have severe consequences for both the individual and community at large. This can be reflected in the nature of the sentences and the levels of those sentences imposed. The policy underlying the approach to sentencing drug-trafficking offences is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of dangerous drugs, including ketamine and cannabis, the subject drugs in this case.
The tariff that is applicable to trafficking in ketamine is set out in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. According to the applicable sentencing tariff, quantities between 50 and 300 grammes of ketamine would attract a starting point for sentence after trial of between 6 and 9 years’ imprisonment.
As for herbal cannabis, according to HKSAR v Chor Lui [2001] 3 HKLRD 95, the benchmark tariff sentence for trafficking in below 2,000 grammes of herbal cannabis is up to 4 months’ imprisonment.
A further dimension to the sentencing exercise which is required in this case is to consider the fact that two different dangerous drugs are involved. The appropriate approach in computing the overall starting point for trafficking in cocktail drugs has been articulated in a number of authorities, including the case of HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, HKSAR v Wong Kin Kau [2010] 4 HKC 443, HKSAR v Yau Ka Ming (unreported, CACC 144/2013), HKSAR v Chan Yuk Leong (unreported, CACC 318/2013) and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817. Where there is more than one dangerous drug involved, there are two sentencing approaches open to the sentencing judge, namely, the individual approach and the combined approach. In the circumstances of this case, given the vast difference between the two types of drugs involved in terms of quantity and potency, as well as the applicable sentencing bandwidths, and taking into account the fact that the drug ketamine is a much more serious drug than herbal cannabis, I take the view that it is more appropriate to adopt the individual approach and focus the assessment of the appropriate sentencing starting point on the quantity of ketamine seized with adjustment afterwards upward to reflect the presence of the other drug, namely, the herbal cannabis seized.
Applying the sentencing tariff applicable to ketamine as set out in Hii Siew Cheng, the strict mathematically calculated starting point for trafficking in 190 grammes of ketamine is one of 7 years and 8 months.
In light of the 855 grammes of herbal cannabis seized in the subject premises, and having regard to the benchmark tariff sentence of 4 months for 2,000 grammes of herbal cannabis as set out in Chor Lui, I would adjust the overall starting point upward by increase the sentence by only 1 month, thereby achieving a starting point of 7 years and 9 month, that is, adding 1 month to the 7 years and 8 months.
Thus, the overall starting point for the two types of drugs involved, namely, ketamine and herbal cannabis, is one of 7 years and 9 months.
In the meantime, I must also assess the role and culpability of the defendant and consider whether there is any aggravating factor which warrants an enhancement to the overall starting point for sentence, bearing in mind that the sentencing guidelines in various drug-trafficking cases are devised only for those at the bottom of the trafficking hierarchy, namely, couriers and storekeepers: see HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 at paragraph 49.
Insofar as the role of the defendant in the present case is concerned, whilst the defendant claimed that he only earned a few hundred dollars each time for helping to package and deliver the drugs to the customers, as it can be observed from the agreed Summary of Facts, the defendant also admitted that he was involved in a certain degree of managing and organising, including opening the Instagram account, putting some cannabis photos on it to “solicit” customers and liaising price with the customers.
In that regard, the court’s attention has been drawn to the case of HKSAR v Cheung Fai Ho [2022] HKCFI 223, which involved the use of Instagram for commercial sale of drugs. It is held in that case:
“The learned magistrate went on to identify the obvious aggravating factor, that of the use of Instagram for the commercial sale of drugs. This court adds its own concern to hers. Many young and vulnerable people who would not dream of contacting a drug pusher or who would never meet somebody who deals in drugs in their ordinary lives, will have access to Instagram. The mere fact that Instagram is the vehicle for these sales makes it appear socially acceptable and encourages anonymous purchases by the naïve and foolish without any personal risk...”
The court in the case of Cheung Fai Ho accepts that the use of Instagram for commercial sale of drugs is a proper aggravating feature to be taken into account.
For this case, whilst I accept that the defendant may not appear to be the sole operator or the sole beneficiary of the sale of drugs and whilst I accept that the defendant is not the person who is behind the operation or somebody who is high up in the hierarchy of a syndicate, I share the view that the use of the Instagram account by him as a vehicle for the sale of drugs should be taken into account and clearly heightened his culpability, aggravated his offending and made his role more than a mere courier or storekeeper. In the premises, I consider that it is appropriate to enhance the overall starting point of sentence by 3 months. That would make the overall starting point one of 8 years, that is, 7 years and 9 months plus 3 months.
Mitigation (personal circumstance) & Discount for guilty plea
I shall then consider the mitigation, including the circumstances of the defendant and his timely plea. On behalf of the defendant, Mr Ng produced three letters - one from the defendant, one from the defendant’s mother and the other from the defendant’s friend who informed the court certain aspects of the defendant’s background and pleaded for mercy for the defendant. I have read all those letters, but as the Court of Appeal made it clear in Herry Jane Yusuph, in cases of trafficking in dangerous drugs, personal circumstances will count for little, unless they are exceptional. In the circumstances, I do not find any exceptional mitigating factors in this case to support a discount on sentence apart from the defendant’s timely and early plea of guilty at the committal stage.
The authority confirms that a person who pleads guilty at the earliest practical opportunity is entitled to a full one-third discount from the appropriate starting point. The defendant in this case is therefore entitled to the full one-third discount in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, reducing the overall starting point to a sentence of 5 years and 4 months. That is one-third from the overall starting point of 8 years.
Having regard to the circumstances of the case, including the quantities and the types of drugs involved, the aggravating features of the use of Instagram as a vehicle for the commercial sale of dangerous drugs, the mitigation advanced by Mr Ng on behalf of the defendant, and the defendant’s background, I am of the view that the ultimate sentence of 5 years and 4 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.
Hence, this is the sentence that I would eventually impose on the defendant. You are sentenced to 5 years and 4 months’ imprisonment.