1st defendant, you admitted that on 3 May 2019, at Bailey Street in Hunghom, Hong Kong, you unlawfully trafficked in dangerous drugs, namely 13.5 grammes of a crystalline solid containing 12.1 grammes of methamphetamine hydrochloride, 6.97 grammes of a solid containing 5.61 grammes of cocaine and 29.3 grammes of a solid containing 24.38 grammes of ketamine.
As regards the facts of this offence, at about 1954 hours on 3 May 2019, police officers observed you walking on Wan On Street towards Bailey Street, holding tightly to a bag and you looking around nervously as you walked. You were thus intercepted by the police on Bailey Street for investigation. Upon search, they found the drugs as stated in the charge inside your bag.
You were arrested and cautioned, upon which you claimed the powder inside the pink bag was for your own consumption. At the time, you had in your possession cash of about $8,600, three mobile phones, a key and a resident card of a residential development called Upper East located at No. 23 Sung On Street, Kowloon. The resident card was printed with the letters and number “C17D03”.
As of May 2019, the estimated street value of the dangerous drugs found on you in respect of the ‘Ice’, that is the methamphetamine hydrochloride, was about $7,500, the cocaine powder about $6,800; if it were crack cocaine, $9,000-odd; and ketamine of about $16,400; so a total value of approximately $32,000.
A urine sample was collected from you, 1st defendant, on 7 May and was tested for dangerous drugs but with a negative result. You now accept and admit that at the material time the drugs were in your possession for the purpose of unlawful trafficking.
Defendant, you are 25 years of age. You are married with a daughter aged four and a son aged two. You are the sole breadwinner of your family and before your arrest you were an odd-job worker with an unstable income and a drug dependant.
You have two previous convictions. In 2015, you were sentenced to DATC for an offence of assault occasioning actual bodily harm, and the second conviction was of theft in 6 June 2016 to which you were sentenced to 6 months’ imprisonment suspended for 3 years.
Mr Clement Lau, your counsel, in mitigation has said that the reason why you committed this offence was because of financial difficulties. He also informed this court that prior to the arrest you were a drug dependant. The most significant mitigating factor, as Mr Lau rightly says, is your early plea of guilty. He asked this court not to activate the suspended sentence as this offence was committed towards the end of that period and in any event you will have to serve a lengthy sentence as regards this offence, and if I do activate it, he asked me not to activate it fully. He has also set out very carefully and clearly the calculations for sentencing in trafficking in these three kinds of drugs, giving the ratio test, the conversion test and the absurdity test.
In regard to sentencing you for trafficking in dangerous drugs, defendant, as you are well aware, guidelines have been laid down by the Court of Appeal. You were at the material time trafficking in three kinds of dangerous drugs. The first was that of methamphetamine hydrochloride which is otherwise commonly known as ‘Ice’. The guideline case and tariff for sentencing in ‘Ice’ is that of HKSAR v Tam Yi Chun. The other type of drug was that of cocaine and the guideline case for sentencing in cocaine is R v Lau Tak Ming. Yhe tariff case for sentencing for trafficking in ketamine is that of Secretary of Justice v Hii Siew Cheng. I bear in mind the guidelines as set down in those cases.
In sentencing you, defendant, for these three types of drugs, I shall adopt a combined approach and then I will apply the conversion test for the drugs and convert the drugs of cocaine and ketamine to ‘Ice’ which is the more serious drug of those three. I will therefore convert the ketamine and the cocaine to the quantities as if they were ‘Ice’ and arrive at a total amount of ‘Ice’ and sentence you on that basis.
Defendant, you were trafficking in an amount of 12.1 grammes of ‘Ice’. You were then also trafficking in 5.61 grammes of cocaine. If I were to sentence you for that amount of cocaine, a sentence of 3 years 6 months would be appropriate. And for that term of imprisonment, that would be equivalent to about 2 grammes of ‘Ice’.
For the amount of ketamine that you were trafficking in, it was 24.38 grammes. If you had been sentenced for trafficking in ketamine, that would attract a sentence of 4 years 6 months’ imprisonment and that would be equivalent to an amount of approximately 4 grammes of ‘Ice’.
Therefore, if I were to add up the converted quantities of 4 and 2, which is 6, to the ‘Ice’ which is 12.1 grammes, that would make a total amount of ‘Ice’ that you were trafficking in of 18.1 grammes. Had you been convicted for trafficking in that amount of ‘Ice’ after trial, the appropriate sentence in accordance with Tam Yi Chun would be one of 7 years and 6 months’ imprisonment.
As Mr Lau said, the most significant mitigating factor is your plea of guilty at the earliest opportunity and on that basis, you shall be awarded a one-third discount. In the circumstances, your sentence shall be reduced to one of 5 years’ imprisonment.
You had committed the present offence of trafficking in dangerous drugs during the time when your suspended sentence was active. I see no justification for not activating the sentence of imprisonment. However, as the present offence was committed near the very end of the term of imprisonment, I order 2 months to run consecutive to the present term of 5 years’ imprisonment and the remaining term concurrent, making your total term to which you shall serve of 5 years and 2 months’ imprisonment.
I now turn to give my reasons for sentence in respect of the 2nd defendant, Lam Hoi-sang. The 2nd defendant, you pleaded guilty before a magistrate on 31 August 2020 to a charge of trafficking in dangerous drugs. On the same date, you also admitted the Summary of Facts which was read to you in court. As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence.
Defendant, you admitted to trafficking in dangerous drugs on 3 May 2019 at Flat D, 17th Floor, Block C, Upper East, No. 23 Sung On Street, Hunghom. You admitted to unlawfully trafficking in dangerous drugs, namely 448.68 grammes of a crystalline solid containing 43.62 grammes of methamphetamine hydrochloride, 34.21 grammes of a solid containing 27.75 grammes of cocaine and 103.8 grammes of a solid containing 85.5 grammes of ketamine.
Defendant, in respect of the facts of this offence, at about 0048 hours on 4 May, you and another female together entered the premises as stated in the charge. At 0053 hours, the female lady Lee left the flat. She was arrested and cautioned but she denied involvement or knowledge of the drugs subsequently found in the flat.
At about 0120 hours, officers who were laying ambush outside the flat discovered that a key was left inserted at the lock of the door of the flat. The police officers entered the flat and found you, D2, the 2nd defendant, inside the flat handling dangerous drugs. You were arrested and cautioned for trafficking in dangerous drugs, under which you stated, “Someone give me money, asked me to follow the fat woman to come up and get some dangerous drugs to find him, but I have not received the money.” The flat was then searched and amongst other things, the dangerous drugs as stated in the charge were found.
At the time of your arrest, defendant, you had cash of $461 and one mobile phone. In a video-recorded interview under caution, you admitted, you stated amongst other things that you were recruited through WeChat to traffic drugs by a person called Ah Ben. On that day, you received a call from an unknown person and he told you to meet in Mongkok. You were then given a key and were told to go to the flat at Upper East. You later received a call from a female and she said she would meet you at the main entrance of Upper East. That female who you met up with was in fact the female Lee who was later arrested.
You entered the flat with her. Then she left the flat and asked you to bring the drugs to her at the podium on the 2nd floor. You then asked her where the drugs were kept. She said she did not know and it was a matter of her predecessor. You then found the box on top of the air-conditioner on the balcony outside the flat. You then opened the box and found the dangerous drugs.
Ah Ben then contacted you on WeChat and asked if you had found the dangerous drugs and the weighing scale. You replied you did not find the weighing scale. It appears from the exhibits there was no weighing scale in the flat. Ah Ben then asked you to separate the “pig” and the “perfume” but you told him you did not know how to. You then took photos of the dangerous drugs and sent them to Ah Ben via WeChat who then taught you how to distinguish them. You were then asked to count the total quantity of drugs by Ah Ben but as you were counting, the police entered the flat.
You consented to the police investigating your mobile phone and the police found corresponding messages including voice clips and photos exchanged between yourself and Ben, Ben Chai, in WeChat. It was also confirmed that two mobile phone numbers were used to call him respectively which is a woman and a stranger male.
As of May 2019, the estimated street value of the dangerous drugs seized in the flat were, as regards methamphetamine hydrochloride, was about $250,000; as regards cocaine, if it was powder, $33,800-odd; or crack, $44,200-odd; and for ketamine, the amount of about $58,300. The total value of all three drugs was approximately $342,000-odd.
You accept and admit that at the material time you were in possession of the dangerous drugs seized in the flat for the purpose of unlawful trafficking.
Defendant, you are now 43 years of age. You are single and educated up to Form 3 secondary. At the time of your arrest, you were a manager in a restaurant. Ms Flora Cheng, your counsel, has mitigated fully on your behalf and has attached to her written mitigation a letter written by you to the court. Much of what she says in mitigation is stated in your letter. You live with your mother and your father is in an elderly care home and your sister is married and lives apart. You were the sole breadwinner of your family and fully responsible for household expenses.
At the time just before your arrest, you were earning $20,000 per month as the manager of the restaurant. You have - sorry, I missed this earlier - you have two previous convictions dating back to 2008, which is not similar, for committing an act of public indecency of which you received 120 hours of community service.
It appears from the mitigation from Ms Cheng is that, unfortunately, you had committed this offence as a result of a girlfriend whom you met in 2018 and had borrowed money from eight financial companies to the sum of $230,000 to help her pay off her debt. Once you had repaid her debts, however, she deserted you. In that situation, you had difficulty repaying the debts to the companies and thus feeling under pressure exerted by the companies to repay the debt, you wanted to make quick money to repay the debts. For that reason you agreed to traffic in dangerous drugs for Ah Ben who promised to pay you a few thousand dollars a day.
Ms Cheng explains that as you are not a drug addict and were new to the trade, as revealed from the Summary of Facts, you were unable to distinguish the drugs of which you were to handle, and as revealed by the search of your mobile phone, the contents of which you told the police in the video-recorded interview were verified.
I can see from your letter written to me and through Ms Cheng’s mitigation and your early plea of guilty that you are remorseful for what you have done and pleaded guilty at the earliest opportunity. As you have said in your letter, you had a good job and you should have been very happy because, I think it is translated this way, you have soft ears and you met a girl, you kindly repaid her debt and in the end all the burden fell on you. Now, as a result of what you know will be a term of imprisonment, you are worried about your mother and your father.
Defendant, as with the 1st defendant, you were trafficking in multiple drugs. In this case, there were three kinds of drugs, the same types of drugs as the 1st defendant which is methamphetamine hydrochloride, ketamine and cocaine, and the three cases I mentioned in respect of the 1st defendant’s guideline cases are the same.
In sentencing you, defendant, I shall adopt the combined approach and take the most serious drug which is ‘Ice’ as the base for sentence and convert the other two drugs, that is cocaine and ketamine, to ‘Ice’ and then sentence you as a total quantity of ‘Ice’ to arrive at the sentence of imprisonment.
You were trafficking in 438.62 grammes of ‘Ice’ and for the cocaine you were trafficking in 27.75 grammes. If you were sentenced for trafficking in that amount of cocaine, that would attract a sentence of 6 years and 3 months’ imprisonment and that sentence would be imposed for an amount of approximately 8 grammes of ‘Ice’.
For the ketamine, you had an amount of 85.5 grammes. Should you have been sentenced for ketamine alone, that would have attracted a term of 6 years and 3 months’ imprisonment and that term would be similar to a sentence imposed for approximately 8 grammes of ‘Ice’. Therefore, the two quantities of cocaine and ketamine being 8 grammes each equals 16 grammes of ‘Ice’, and adding that to the ‘Ice’ itself of 438.62 grammes, that would make a total amount of ‘Ice’ of 454.62 grammes.
Had you been convicted after trial in trafficking in that total quantity of ‘Ice’, that would have attracted a term of 17 years and 6 months’ imprisonment. The strongest mitigating factor is your plea of guilty at the earliest opportunity. On that basis, you shall be awarded a one-third discount, and giving that discount to that term, you shall be sentenced to a term of 11 years and 8 months’ imprisonment.