COURT: The defendant pleaded guilty in the Magistrates’ Court to two counts of trafficking in a dangerous drug. He admits on 11 January 2022, on the street in Yuen Long, he unlawfully trafficked in a dangerous drug, namely, 3.99 kilogrammes of a solid containing 3.44 kilogrammes of ketamine.
And on the same day in a flat in King Wah Building also in Yuen Long, he unlawfully trafficked in dangerous drugs, namely, 39.4 kilogrammes of a solid containing 32.551 kilogrammes of cocaine, 4.48 kilogrammes of a solid containing 3.6 kilogrammes of ketamine and 22.15 kilogrammes of herbal cannabis.
He was committed for sentence on 30 November 2023 and today confirms his plea as well as his agreement to the Summary of Facts.
Facts
On 11 January 2022 at around 5 pm, the defendant was intercepted leaving King Wah Building by the police when they observed him acting suspiciously. He was stopped, searched and two plastic bags containing the ketamine of Count 1 was found in a recycling bag he was carrying. He was arrested and under caution, admitted he was delivering the drugs for a financial reward.
He was escorted back upstairs to Flat C, Room B on the 1st Floor immediately after his arrest. The room was searched and the police found all the drugs of Count 2 and as well as just over $1 million in cash and paraphernalia for packing and weighing dangerous drugs. He was arrested again and cautioned, he admitted looking after the drugs in the premises for a financial reward.
In a subsequent video-recorded interview, he expanded on his admissions. He was homeless and sleeping in a park in Yuen Long in early November 2021 when a man called “Ah Q” approached him and offered him a place to sleep and $20,000 if he looked after items stored in the premises. He agreed. Later he was told he would receive $10,000 a month to pay the rent for the room and he could keep the balance, but he was not allowed to touch any items put in the premises by Ah Q.
The defendant knew that Ah Q had access to the premises as well and would leave items there or sometimes take items away, which he soon found out and believed to be dangerous drugs.
In January 2022, Ah Q asked him to not only look after items stored in the premises but also deliver things as instructed. The defendant foolishly agreed. The large amount of cash had been placed in the premises days before his arrest but did not belong to him.
The defendant admitted that the estimated street value of the ketamine from both charges was $4,624,620. The cocaine found in the premises had an estimated street value of $34,514,400, if sold as cocaine hydrochloride or $59,218,200, if converted into crack cocaine. The estimated street value of the herbal cannabis was $3,499,700. The total estimated street value of all the drugs seized range from between $42.6 million and $67.3 million.
Mitigation
The defendant is now 61 years old and was married in the mainland. He and his wife came to Hong Kong in 2008. They were living together until October 2021 when the defendant lost his job and lost his way it seems. He left his wife but told her he would return when he could financially support her again.
After that, not only was he unemployed but also homeless. That made him an easy prey for drug traffickers. He was so simple-minded, he did not even ask at first what he was being paid to look after. When he did realise the premises contained dangerous drugs, he did not walk away. He was in a dilemma but chose to continue to live there and receive a reward.
He does have one previous conviction but it is a minor conviction of gambling four years ago. I have a letter from the defendant’s wife asking for mercy and leniency. The defendant’s best mitigation is his plea of guilty at the earliest opportunity. Ms Chan had said all she can say on his behalf in mitigation.
Sentencing
I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 that was very recently discussed and reiterated in the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.
In the approach of sentencing, six steps have been identified which the court should take. They are assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly, passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guidelines according to the drug seized or in this case, drugs seized. There are three types of dangerous drugs seized here.
I will take a global approach here with the ketamine of both charges and add the two amounts together. There was a total of 7.92 kilogrammes of ketamine and in HKSAR v Sin Chung Kin and Another [2013] 1 HKLRD 627, the Court of Appeal held that for trafficking in 3,000 grammes of ketamine or more, the appropriate starting point should be not less than 20 years’ imprisonment.
The guidelines for trafficking in cocaine is the same as for those trafficking heroin, here the quantity is very significant, 32.551 kilogrammes of cocaine. According to HKSAR v Abdallah [2009] 2 HKLR 437, for those that traffic over 15 kilogrammes of cocaine, the starting point is above 30 years at the sentencing judge’s discretion.
Guidelines for trafficking in cannabis is governed in this case by the old guidelines from the Court of Appeal in HKSAR v Tuen Shui Ming and Others [1995] 2 HKCLR 129 and the Secretary for Justice v Lee Siu Kei, CAAR 4/2005, where there is over 9,000 grammes involved, the starting point is 4 years upwards. Ms Chan has suggested that for the 22.15 kilogrammes of herbal cannabis alone, the court should consider, mathematically, a starting point of between 4 years and 6 months and 5 years.
It has been suggested by the defence that the combined approach should be adopted here using cocaine as the base drug as it is the highest quantity. However, it does seem artificial and futile to do that when the cocaine alone will attract a starting point of over 30 years’ imprisonment. In HKSAR v Chu Ho Wa [2022] 1 HKLRD 359, the Court of Appeal held that:
“While the appropriate bracket for more than 15,000 grammes of ‘Ice’ was over 30 years’ imprisonment at the sentencer’s discretion, anything above 30 years’ imprisonment was an extremely long sentence and it was neither prudent nor possible to apply a mathematical increase where vast quantities were involved.”
This must apply to the situation and facts here in this case.
In this case today, the quantity of ketamine and cocaine added together is 40.47 kilogrammes. Then there is the herbal cannabis to consider. After considering the quantity of drugs here and after hearing mitigation, I am prepared to exercise my discretion and adopt a 31 year and 6 months term of imprisonment as the starting point.
The second step of the six steps is to assess the defendant’s role and culpability based upon evidence. He was delivering some of the drugs as he left home and was arrested whilst the rest, the bulk, was found inside what was the defendant’s home. When arrested, he made a full and frank admission. I have no reason to doubt his explanation as to how he became involved as a storekeeper and a courier. I attribute those roles to the defendant for the purposes of sentencing.
Therefore, taking into account the third step of where within the guidelines the defendant should lie, his sentence will be determined by the starting point I have found appropriate for the quantity of dangerous drugs involved.
Accordingly, I find the appropriate starting point to be 31 years and 6 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. I do not find any to consider.
Defendant will benefit from a one-third discount from that starting point of 31 years and 6 months’ imprisonment for his plea. Once that discount is applied, that starting point is reduced to 21 years’ imprisonment.
The last step is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of not only the offence but also the defendant. It is a very significant term of imprisonment but a severe or harsh sentence is not by that reason alone necessarily unfair, imbalanced or unjust.
Therefore, for Charge 1, the defendant is sentenced to 21 years’ imprisonment. Charge 2, the defendant is sentenced to 21 years’ imprisonment. Both counts to be served concurrently, the defendant will serve a total of 21 years’ imprisonment.