COURT: The defendant was convicted by a jury of one count of trafficking in dangerous drugs. The dangerous drugs involved in this case are:
(a) 12.06 grammes of a crystalline solid containing 11.96 grammes of methamphetamine hydrochloride, which I will refer to simply as ‘Ice’;
(b) 0.09 grammes of a solid containing methamphetamine;
(c) 1.06 grammes of a powder containing 0.49 grammes of ketamine; and
(d) 96.5 grammes of a liquid containing 27.9 grammes of gamma-butyrolactone, “GBL”.
At about 0415 hours on 11 August 2022, the police officers were patrolling along Shanghai Street, Mong Kok, and saw the defendant near No. 639 Shanghai Street. Upon search of the defendant at the scene and at the Mong Kok Police Station, the police found the drugs mentioned in the charge and around 100-odd “Viagra” pills in his backpack and a plastic carry bag.
The defendant was then arrested. Under caution, the defendant claimed that the dangerous drug ‘Ice’, “GBL” and “Viagra” found on him were for his own consumption.
The estimated retail street value of the ‘Ice’ and methamphetamine mentioned in the charge, if sold to abusers of dangerous drugs in August 2022, would be approximately $7,144. The street value of the 1.06 grammes of a powder containing 0.49 grammes of ketamine would be approximately $651.
Background and Mitigation
The defendant is now 41 years old and was 39 years old at the time of the offence. The defendant testified in his evidence that he is homosexual, which was not challenged in cross-examination. The defendant obtained a bachelor’s degree in nursing from the Hong Kong Polytechnic University in 2006, and a master’s degree in sports medicine from the Chinese University of Hong Kong in 2013.
The defendant started working as a registered nurse in the Tuen Mun Hospital from 2006 in the Accident and Emergency Department, which I will simply refer to as “A & E”. In 2018, the defendant got promoted to advanced practice nurse and was transferred to the Tin Shui Wai Hospital. The defendant’s basic salary without allowance was $66,000. The defendant had a clear record prior to the commission of the present offence.
I have read numerous letters written by the defendant, the defendant’s parents, brother, friends and colleagues. The defendant was viewed as a hardworking and responsible member of his workplace and the society. I have been told that the defendant was well loved by his peers and colleagues, and they appeared in court on multiple occasions to show support to the defendant.
In the defendant’s own letter to this court, the defendant stated how the two years that he had already been in custody since his arrest had led him to reflect upon his past misdeeds. He realised how much he had hurt his family and friends. The defendant wrote that he is determined to start a new life, that he will stay away from drugs and work hard to contribute to the society in the future.
The defendant has also positively used his time in custody to complete and obtain the Construction Industry Safety Training Certificate to better equip himself for re-integration into the society once he completes serving his sentence. I have been informed that the defendant had volunteered in various charity events to provide medical assistance to participants of the events, and I have been provided with some of the certificates.
During the COVID-19 outbreak, the defendant also voluntarily took part in the Universal Community Testing Programme, for which he received a certification of appreciation from the government in November 2020. There was also evidence adduced during the trial that the defendant had worked extra hours during the pandemic in order to help alleviate the over-crowded situation in the hospital A & E Department.
Ms Lau submitted that a significant portion, if not all of the drugs save for ketamine were for the defendant’s self-consumption. But Doctor Tse Man-li, the prosecution expert witness, opined that the combination of drugs and substances possessed by the defendant were commonly used by the gay community in the course of their sexual activities.
In addition, according to Doctor Tse Man-li’s calculation, the ‘Ice’ and “GBL” in the present case would last an average user for no more than one month. The defendant also tested positive for amphetamine in his urine sample taken on 14 August 2022, just several days after this arrest.
In the cross-examination of the defendant at trial, the prosecution left an alternative social trafficking case to the jury, namely, that the defendant would share his drugs with others during sexual activities. I would therefore proceed to sentence the defendant on this factual basis.
Sentencing Considerations
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150. I therefore follow the six-step sentencing approach as set out in Yusuph.
Applying the guidelines laid down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for quantities of 10 grammes to 70 grammes of ‘Ice’, the relevant sentencing band is between 7 to 11 years’ imprisonment. For trafficking in a total of 11.96 grammes of ‘Ice’, a mathematically calculated place within the relevant sentencing band would be 7 years and 1 month’s imprisonment after rounding down.
The sentencing tariff for trafficking in ketamine and “GBL” are provided in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and HKSAR v Ko Wai Shing (2021) 5 HKLRD 724 respectively. For up to 1 gramme of ketamine or up to 500 grammes of “GBL”, the sentence guidelines are within the sentencer’s discretion. There is no sentencing guidelines set down for methamphetamine.
Given the very small quantities of ketamine, “GBL” and methamphetamine in the present case, I would disregard those drugs for the purposes of sentence, as the quantities of those drugs do not materially add to the defendant’s overall culpability and will not make any meaningful difference on sentence. See HKSAR v Cheung Kwok Leung Lowence [2003] 3 HKLRD 542 at Paragraph 40.
In respect of the presence of a cocktail drugs, the normal sentencing rationale is that this is an aggravating factor because it allows the trafficker to cater for the wider market, and the combination of drugs offered enhances the effects of the more serious or harmful drug. However, given the very small amount of “GBL”, methamphetamine and ketamine in the present case, I do not consider it correct in principle to increase the starting point just to reflect the presence of very small amounts of other drugs beyond the ‘Ice’ in the defendant’s possession.
The evidence suggests that the defendant was a social trafficker. The defendant was a registered nurse, earning at least $66,000 a month before taking into allowances, and there is no evidence pointing to any financial difficulties on the part of the defendant. There is nothing to suggest that the defendant’s trafficking activity had any commercial purpose to it. I therefore assess his culpability on the lowest end of the scale.
As stated in Paragraph 51 of Wong Suet Hau [2002] 1 HKLRD 69, the Court of Appeal stated that even in cases of social or non-commercial drug trafficking involving small amounts, such circumstances should not, in itself, provide a general basis for imposing a lighter sentence than what would have been imposed for commercial trafficking. The Court of Appeal stated that individuals who enable or perpetuate another’s abuse of drugs similarly poses a similar danger to the community as a commercial supplier of small quantities of drugs.
In these circumstances, I do not see any need to depart from the mathematically calculated starting point in respect of 11.96 grammes of ‘Ice’. I therefore adopt a starting point of 7 years and 1 month’s imprisonment.
Ms Lau, for the defendant, submitted that a significant portion, if not all of the drugs save for the ketamine were for the defendant’s own consumption. Given that the defendant’s urine sample taken shortly after the arrest showed the presence of amphetamine, the defendant’s sexual orientation, Doctor Li’s clear evidence that the combination of drugs found in the present case were commonly used in the gay community during sexual activities, and that the prosecution saw it fit to leave to the jury an alternative case of social trafficking, there is, in my judgment, ample evidence to support Ms Lau’s submission that a significant portion of the drugs found in the defendant’s possession was for his own consumption, although I will not go as far as Ms Lau’s submission that “if not all” of the drugs were for self-consumption.
Where the court is satisfied that a significant part of the drugs was for self-consumption, the discount for sentence will fall somewhere between 10 and 25 per cent of the basic starting point. See HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 at Paragraph 19.
In the circumstances of the present case, I am prepared to afford the defendant an approximately 15 per cent deduction in the sentence to reflect this factor, which brings the sentence down to 6 years’ imprisonment.
Further, as already described, the defendant had previously involved himself in various volunteer activities and has positively contributed to the community during the COVID pandemic. For these contributions, I will further reduce the defendant’s sentence by 4 months.
Defendant, I will sentence you to 5 years and 8 months’ imprisonment.