The defendant pleaded guilty in the Magistrates’ Court and was committed to this court for sentence on a charge of trafficking in three different kinds of dangerous drugs:
(1) 63.5 grammes of a solid containing 54.1 grammes of ketamine;
(2) 66.4 grammes of cannabis in herbal form; and
(3) 49.77 grammes of a solid containing 37.35 grammes of cocaine.
Before this court, he confirmed his plea and his agreement to the prosecution’s Summary of Facts.
Facts
The facts are familiar and straightforward. The incident took place in the evening of 13 November 2022. At the time, the defendant was intercepted by police officers as he got off a private vehicle in Tsing Yi, New Territories.
Subsequently upon a house search in the defendant’s home in Tivoli Garden, police officers found in his room the dangerous drugs which were the subject matter of the charge contained in various transparent resealable plastic bags, three electronic scales, ten bundles of transparent resealable plastic bags, one glass pipe, one cannabis grinder, two mobile phones and cash of HK$34,850.
Under caution, the defendant admitted that he trafficked in the dangerous drugs for a person called “Ah Hung” who told him to pick up the dangerous drugs from a rubbish bin outside a 7-Eleven convenience store in Tivoli Garden. I shall amend by saying that the two mobile phones and the cash of HK$34,850 was in fact found in the defendant’s backpack.
Now according to the Summary of Facts, the respective street value of the dangerous drugs under consideration were as follows:
(1) Ketamine, HK$37,563;
(2) Herbal cannabis, HK$12,749;
(3) Cocaine HK$41,508 in powder form or HK$73,112 in crack form.
Defendant’s Antecedent
Defendant was born in Hong Kong. He is now aged 23 and was aged almost 22 at the time of the offence. He was educated up to year 1 at university. He is single and lives with his parents, his aunt, and his elder brother. He was unemployed at the time of his arrest and he has a clear record. However, the antecedent statement to which the defendant agreed, says that he was a member of Wo Shing Wo, triad society.
Sentence
The sentencing approach for the offence of trafficking is laid down in HKSAR v Herry Jane Yusuph, which is further clarified in HKSAR v Lee Ming Ho. One of the more salient features of this approach is the moving away from a rigid arithmetical approach with starting points and sentences based purely on narcotic quantity to a more discretionary approach, involving an assessment of the offender’s role and culpability. However, the quantity of the dangerous drugs involved remains the primary determinant in sentencing.
Following the sentencing approach in HKSAR v Herry Jane Yusuph, the first step is for this court to identify the relevant guideline bands. As to this, I note that the present case concerns the following:
(1) for trafficking in 54.1 grammes of ketamine, the applicable guideline band is 6 to 9 years’ imprisonment (see Secretary for Justice v Hii Siew Cheng). By pure arithmetical approach, trafficking in this quantity of ketamine alone would attract a sentence of 72.6 months’ imprisonment;
(2) for trafficking in herbal cannabis, despite the updated tariff provided in HKSAR v Nguyen Thang Loi in early 2003, the applicable guideline band in the present case remains that of Attorney General v Tuen Shui Ming and Another, which is up to 16 months for trafficking under 2000 grammes. By a pure arithmetical approach, trafficking is 66.4 grammes of herbal cannabis alone would attract a sentence of 0.5 months’ imprisonment; and
(3) for trafficking in 37.35 grammes of cocaine, the applicable guideline band is 5 to 8 years’ imprisonment (Attorney General v Pedro Nel Rojas applying HKSAR v Lau Tak Ming and Others). By a pure arithmetical approach, trafficking in this quantity of cocaine alone would attract a sentence of 84.6 months’ imprisonment.
Secondly, concerning the defendant’s role and culpability based on the limited information contained in the Summary of Facts, and in view of his relatively young age and clear record in particular, I am prepared to treat him as a courier or storekeeper.
Thirdly, in order to identify the starting point of the offence which involved different kinds of dangerous drugs, I conduct the absurdity test, conversion test and ratio test as explained in HKSAR v Chan Yuk Leong, for the purpose of cross-checking. However, if one were to include the cannabis in the calculation, that would lead to a distorted result because of its weight and proportion. On the other hand, in view of the low sentence for trafficking in the cannabis alone, it would not have a significant effect on the overall sentence.
Therefore, in my view it is proper to ignore the cannabis and just to take into account the ketamine and cocaine with a combined weight of 91.45 grammes when conducting the tests. This is for the purpose of convenience only. It is not to say that the cannabis should be ignored totally in determining the starting point.
In this way, the results are as follows:
• Absurdity test : 109.3 months
(assuming that all were cocaine)
78.0 months
(assuming that all were ketamine)
• Conversion test : 99.6 months
(based on cocaine as the most potent drug)
• Ratio test : 90.8 months.
Having considered the above results in the round and also taking into account the presence of more than one types of dangerous drug which enable the defendant to cater to a wider market than trafficking in only one kind of dangerous drug, I consider that the notional sentence after trial of 99 months’ imprisonment would be appropriate in the present case (see HKSAR v Yim Hung Lui Ricky).
Fourthly, I can see no other aggravating factors bearing upon the notional sentence after trial, which might justify an enhancement of the starting point.
Finally, having fully considered the mitigation put forward by Mr Sheung, who I trust has said all that can be said on the defendant’s behalf, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely plea. After deducting the customary one-third discount for plea, the defendant sentence is reduced to 66 months’ imprisonment.
Conclusion
Therefore, the defendant is sentenced to 66 months’ imprisonment.