COURT: The two defendants pleaded guilty before a magistrate to one charge of conspiracy to traffic in dangerous drugs and were committed together before me for sentence. In sentencing, I have considered the whole circumstances of the case, including the facts the two defendants admitted, the type and quantity of drugs involved, personal background of the two defendants and mitigation put forward on their behalf. I also had regard to the relevant tariff cases as well as the principles and approach of sentencing considerations set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The fact of the case which emerged from the stop and search of D1 may be summarised as follows. On 28 April 2022, police officers intercepted a taxi on which D1 was the only passenger. A search was conducted after the mother of D1 arrived and dangerous drugs were found on the person of D1. The drugs were 10.9 grammes of a solid containing 10.36 grammes of cocaine and 2.67 grammes of a solid containing 2.15 grammes of ketamine.
Upon arrest and under caution, D1 said the cocaine was given to her by someone else and she was told to give it to customers. She also said she need the money to repay the proceeds taken by her ex-boyfriend who had been arrested for drug trafficking.
In subsequent interviews, D1 admitted that from December 2021 the latest, she had been from time to time instructed by others in a WhatsApp chat group to traffic in cocaine and ketamine. With a telephone number provided by D1, D2 was identified and was on 28 April 2022 arrested for the offence of drug trafficking.
In subsequent interviews, D2 admitted that he began trafficking in dangerous drugs from 14 April 2022 upon being instructed by people in another WhatsApp group to traffic in cocaine and ketamine.
Both defendants said they were responsible for delivering dangerous drugs to customers. On the days they worked, they had to work 12 hours a day. The reward of D1 was calculated on the basis of number of size or the bags she delivered. D2 earned about $800 each day. Sometimes they delivered drugs to other members of the syndicates and received reimbursement for traffic expenses. It was their practice to pass proceeds of sale of drugs and remaining drugs to the person who was to perform the next shift.
On the day prior to his arrest, D2 collected drugs and some $5,000 from the person of the previous shift and he then performed duties of delivering drugs and collecting money from customers. Following that D2 contacted D1 and at around 8 pm on 27 April 2022 passed to her about 50 bags of cocaine, four bags of ketamine, and $6,000 in cash. After having collected the drugs, D1 have been delivering drugs and collecting money from customers in various places until her arrest. At the time of arrest she had with her cash of $1,130. D1 admitted that it was proceed of sale of dangerous drug.
Both defendants admitted that there were other members in the trafficking syndicate. Both of them admitted that they use their mobile phones to communicate with other members of the syndicate.
In the mobile phone of D1, record reveals the following. On 26 April 2022, she had received 15 large bags of cocaine, 61 small bags of cocaine, and seven bags of ketamine, and then she had distributed 15 large bags of cocaine, 57 small bags of cocaine, and two bags of ketamine. On the following day on the 27th, she received 16 large bags of cocaine, 59 small bags of cocaine, and four bags of ketamine, and distributed seven large bags of cocaine, and 12 small bags of cocaine.
In this regard I note D1 said she had erased from time to time trafficking records from her phone. In the mobile phone of D2, records reveal that he had on 12 occasions between 14 April 2022 and 28 April 2022 received bags of cocaine and ketamine for trafficking purpose and distributed some of them. She had on 27 April received drugs from D1.
D1 is now 18 years old. She was 15 years old at the time of the offence and did not have any criminal record. She studied up to Form 1 and worked part time in fast food restaurants and convenience stores.
Learned counsel for D1, Mr Victor Ho, stressed that D1 pleaded guilty at the earliest opportunity. He also informed the court that D1 committed the present offence out of immaturity and foolishness. Her boyfriend had been arrested for trafficking dangerous drug and she was told to repay on behalf of her boyfriend the drug proceeds which had been confiscated from him. In order to fulfil this demand, she agreed to join the drug trafficking activities.
Mr Ho also asked the court to take into account the following:
(1) the prosecution would not have known the details of the conspiracy but for D1’s own admission. Apart from her confession, there is no evidence to prove the existence of the conspiracy let alone the scale of it;
(2) the possible margin of variation or uncertainty in her account;
(3) despite the admission of D1, there is insufficient information for the court to assess the exact quantity of drugs to take into account;
(4) despite in the interview D1 she joined the conspiracy from November or December 2022, she said she seldom engaged in selling drugs during the relevant period;
(5) D1 cooperated with the police after arrest; and
(6) no drugs apart from those found on D1 have been seized.
Mr Ho urged the court to give D1 further discount on top of the one-third for a guilty plea as the prosecution would not have known the details of the conspiracy and other members of the syndicate but for her own admissions. Mr Ho also asked the court to take into account that arrest of D2 was a result of D1 telling the telephone number of the person from whom she received the drugs.
The defence produced a letter by D1 in which she expressed remorse. Letters from her parents and a social worker were also produced. D1 was described as a person of good nature and leniency was pleaded on her behalf.
D2 is now 29 years of age. He received education up to acquiring a diploma of foundation studies. He was employed as a logistic worker. He is single and did not have any criminal conviction record.
On behalf of D2, Mr Joseph Lee asked to court to take into account that D2 pleaded guilty at the earliest opportunity. Mr Lee said D2 committed the offence due to financial reason.
A letter of the mother of D2 was produced. Like Mr Ho, Mr Lee made submission in relation to the assessment of the scale of the conspiracy and the extent of culpability of the defendant.
Mr Lee, citing Chan Kam Loi and Tsang Ka Wing which I will refer to later, submitted that in assessment of the scope of the conspiracy and the culpability of the defendants, the court should grant a 20 per cent discount on the quantity of the dangerous drug as revealed by evidence for the reason of uncertainty over the amount.
The offence which the defendants committed was conspiracy to traffic in a dangerous drug. In consideration of sentence, I have had regard to cases including HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, HKSAR v Chan Kam Loi, CACC 410/2012, and HKSAR v Chung Yat Ho, CACC 367/2010. In consideration, I bear in mind the salient matters to take into account, including the followings:
(1) if quantity of the drug involved is known, it provides the court with a ready means of identifying the appropriate starting point, though quantity is not the only fact relevant to the assessment of gravity;
(2) if the case concerned the conspiracy to traffic in an unspecified quantity of dangerous drugs, the sentencing court must do its best to arrive at a starting point based on inferences and assumptions properly derived from the particular facts of the case;
(3) unless the facts which give rise to the inferences and assumptions are clear cut, they will inevitably lean in favour of the defence;
(4) if the account provided by the defendant is to be taken into account, the court should note the possible margin of variation and uncertainty in the account;
(5) the appropriate degree of purity of the narcotic being trafficked; and
(6) the fact that but for the admission of the defendant, the prosecution would not have known the details of the conspiracy.
On the facts admitted by both defendants, I am of the view that both of them were members of the same drug trafficking syndicate which was of a considerable scale. I also find that both of them were active members in the syndicate. Both of them had involved in direct selling of drug and collection of the price. In addition, both of them knew there were other members in the syndicate.
That said, I am also of the view that there was someone behind them. There is insufficient material for me to find the respective role of the two defendants was not relatively low in the hierarchy of the conspiracy.
In the particulars of offence, conspiracy is alleged without a quantity being specified. The facts admitted by each of the defendants, however, gives some clue on the quantity of drugs the defendants had dealt with in discharging her or his role in the conspiracy.
In deciding the degree of culpability of each defendant, I have considered submission from counsel and take into account matters including the following:
(1) the narcotic content of the drug found actually in the possession of D1;
(2) no further drug was found relating to D1;
(3) no drugs was actually found relating to D2;
(4) he admitted that he had passed drug D1 on the day of her arrest;
(5) the admission each defendant further made during investigation;
(6) despite the two defendants admitted to have acted under the same conspiracy, their respective role and culpability are not necessarily the same and should be gauged according to the evidence against each of them;
(7) according to her own admission the duration which D1 had performed trafficking act under the conspiracy was longer than that of D2. She did not give a full account of her activity, but in my view if she had not involved in any trafficking acts at all during that period she would not have made such admission. At the same time, I note that D1 has said she seldom engaged in selling drugs during that period.
In my consideration, I also bear in mind the following:
(1) D1 said she started around December 2021, 5 months before her arrest, and D2 admitted to have been involved from 14 April 2022, around two weeks before his arrest. And it is close to 12 occasions of trafficking. Despite D1 started earlier in the circumstances of the present case, it does not necessarily mean that she was occupying a higher position than D2 in the hierarchy or that she had acted more frequently than D2;
(2) despite it is my view that the syndicate was of considerable scale, it is also my finding that the role of the two defendants was low in the hierarchy;
(3) the information available about the frequency of the trafficking acts and quantity of the drug being dealt with is less than precise; and
(4) both defendants described the quantity they said they had handled by reference to the number and size of bags. In the assessment of quantity, the drug seized from D1 can be a reference but there is obvious limitation in relying on such information.
Both defendants involved in trafficking of more than one type of dangerous drug, namely cocaine and ketamine. For cocaine, having regard to the observation of the Court of Final Appeal in Seabrook v HKSAR [1999] 2 HKCFAR 184, I am of the view that the tariff set out in the recent case of HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138 should be applied.
For ketamine, the tariff in SJ v Hii Siew Cheng [2009] 1 HKLRD 1 is applicable. I note that cocaine is the more harmful drug and the quantity was also larger than that of ketamine.
In the course of deciding the notional sentence after trial, I adopt the combined approach and check whether the sentence to adopt is fair and appropriate by testing it against the absurdity test, the conversion test, and the ratio test.
In addition, I have to take into account that trafficking in different types of drugs presented two possible aggravating features, namely firstly, of a wider market, and secondly, the effect on users of combination of dangerous drugs. In my judgment, the notional sentence for each of the defendant should be enhanced for this matter by about 6 months.
Having considered the whole of the relevant evidence, I do not find there is any other matter in the case of D1 which calls for an enhancement in her sentence.
As far as D2 is concerned, I have to consider whether the situation calls for an enhancement in the light that D1 was at the material time 15 years of age, a minor as defined in the Dangerous Drugs Ordinance. Under section 56A(1) and (2) of the ordinance, the court is entitled to enhance the sentence of an adult convicted to trafficking in dangerous drug if there is information that the commission of the offence involved a minor. The ordinance provides that the information may be related to matters including the following:
(a) the procuring, supplying, or trafficking by whatever means of a dangerous drug for or to a minor for possession or otherwise; and
(b) by obtaining by whatever means a dangerous drug from a minor.
It is clear from the Summary of Facts which D2 admitted that he had in the course of the trafficking exercise, passed dangerous drug to D1 and for her to traffic in the drug. Mr Lee did not dispute that the provisions are applicable. He sought to persuade the court to exercise discretion not to enhance the sentence.
According to Herry Jane Yusuph, whether the use of minors in trafficking offences is to be regarded as step two or step four of the six steps consideration is a matter for the discretion of the sentencing court having regard to the relevant facts in the case. In that case, the Court of Appeal further observed that we can readily conceive of circumstances where the aid of a courier may be of little difference from the one who asks him to deliver drugs, or they are closely related in age or friends or at the same school.
In those circumstances an 18 years old adult who asked a 17-year-old minor who is a friend of his to deliver dangerous drug is certainly to be condemned but it is not as aggravating a feature as an older adult member of a syndicate who uses and abuses minors, especially school children, to traffic in dangerous drug in order to escape detection and perhaps expand this drug trade amongst minors. The former circumstances may be regarded at step two, the latter cry out for specific consideration at step four.
D2 was at the material time 25 years old, 10 years older than D1. According to authorities such as HKSAR v Ng Hon Keung, CACC 211/2011, it is not necessary to prove to D2 knew that D1 was a minor.
Mr Lee asked the court to take into account matters including the following:
(a) both defendants were couriers occupying a low position in the hierarchy;
(b) there is no evidence that it was D2 who recruited or engaged D1. Both of them were following instructions from others in the syndicate;
(c) evidence shows that D2 joined the conspiracy later than D1, and the duration of his participation was shorter;
(d) D2 only earned a fixed sum of $800 per day, whereas D1 would take a share of the proceeds collected from customers;
(e) both of them performed their respective role akin to discharging shift duty and occasionally taking over the task from the other of the previous shift, with no evidence that D2 had exercised any degree of control over D1; and
(f) despite the Summary of Facts reveals that the two of them had met, they only met once, and as D1 was 15 years old at the time it is unsafe to find D2 must know D1 was a minor.
In all the circumstances, I am of the view that the matter should be regarded as step two, and in any case I do not consider the notional sentence of the trial should be enhanced for this matter. Had D2 known the age of D1, the consideration might be different, but I accept that there is insufficient basis for me to make such a finding.
In deciding the notional sentence after trial for each defendant, I adopted the approach as stated earlier. Having considered the whole of the relevant circumstances, taking into account submission of counsel and the relevant precedence, I adopt following notional sentences after trial: D1, 11½ years; D2, 11 years.
In deciding the notional sentence after trial for D1, I bear in mind her young age but form the view that it has little impact on the sentence in the light of the whole circumstances of the case, in particular the nature and seriousness of the offence she committed.
Both defendants pleaded guilty before a magistrate and for this each of them is entitled to a one-third discount.
For D1, I am satisfied that but for her admission the prosecution would not have known the conspiracy and that her cooperation led to the arrest of D2. In the circumstance of the present case, I am persuaded to give a further discount, so that the overall discount she is entitled to is around 40 per cent.
In the light of the whole of the relevant circumstances, having regard to submission of counsel, it is my view that the above are respectively the extent of discount the defendant is entitled to. In my judgment, the sentence each defendant is to serve is a fair, just, and balanced one in all the circumstances of the case and of the defendants.
So D1, by reasons of the matters aforesaid, I sentence you to an immediate imprisonment terms of 6 years and 11 months. For D2, I sentence you to an immediately imprisonment term of 7 years and 4 months.