COURT: Defendant, on 15 May 2023, you pleaded guilty to two charges of trafficking in dangerous drugs before a magistrate at the Eastern Magistracy. As a result of your pleas of guilty, you have been committed here to the Court of First Instance for sentence. Both trafficking charges were committed on 9 December 2021 at Victory Building, No. 115 Carpenter Road, Kowloon City, Kowloon. The only difference between the two charges was the location in Victory Building.
In Charge 1, you admitted to unlawfully trafficking in 28.3 grammes of a crystalline solid containing 28 grammes of methamphetamine hydrochloride, which drug is commonly known as ‘Ice’ at the ground floor of the building. In Charge 2, you admitted that at 5th Floor, Flat A1, Room B, at Victory Building, you unlawfully trafficked in 10,884.99 grammes of a crystalline solid containing 10,784.93 grammes of methamphetamine hydrochloride and 257.89 grammes of a solid containing 138.72 grammes of ketamine. You admitted a Summary of Facts dated 30 December 2022 which facts are in support of the charges.
The facts of this case are that on the afternoon of 9 December 2021, police officers had observed you entering Flat A1 on the 5th Floor of Victory Building. Approximately 30 minutes later, you left the building and arrived on the ground floor.
You were intercepted and upon a search of you, a plastic bag was found containing the drugs as quantified in Charge 1. Also found were keys and two mobile phones.
You were arrested for the offence of trafficking in dangerous drugs and under caution you admitted you were delivering dangerous drugs for others to earn money.
Using the keys found from your person, officers gained entry into Flat A1. The flat was subdivided into different rooms and you admitted that you resided in Room B. The drugs as quantified in Charge 2 were found in Room B together with other drug packaging paraphernalia. Those being the markers, wet tissues, plastic gloves, adhesive tapes, spoons, sieve, a sealer, electronic weight, dehumidifiers and various sizes of unused transparent resealable plastic bags.
Under further arrest and caution, you denied ownership of the dangerous drugs and claimed to have acted upon orders to deliver them for others.
In a subsequent video-recorded interview, you admitted that you were delivering the drugs for a male by the name of ‘Ah Wai’. The reward for delivering the drugs was in the amount of $5,000. Prior to your arrest, you had conducted dangerous drugs deliveries for Ah Wai and had earned a total reward of about 20 to $30,000. Each time, you would collect the drugs from Room B and deliver them elsewhere at Ah Wai’s instruction. On each occasion, Ah Wai would give you the contact number of the drug recipient, you would then use your mobile phone to call them in order to liaise on the details of delivery.
The total street value of all the dangerous drugs seized in both Charges 1 and 2 amounted to $6,735,530 at the time of seizure.
You admit and accept that at all material times, you knowingly possessed the dangerous drugs for the purposes of unlawful trafficking.
Defendant, you are now aged 36. You are single and born in Hong Kong. You have been educated up to Form 3. You were a casual logistics driver earning about $15,000 per month before your arrest. You have five previous convictions, in 2012, you committed a similar offence of trafficking in dangerous drugs to which you were sentenced to 4 years’ imprisonment. You were discharged from prison in 2015.
For the third offence that was committed sometime in early 2023 whilst you were in custody at Lai Chi Kok remanded for this offence of trafficking. In that offence, you pleaded guilty to three charges of offering an advantage to a public servant to which you received 6 months’ imprisonment to run concurrent to each other. I am informed that that sentence has been completed and you finished serving that sentence on 29 September 2023.
Your counsel, Ms Vivien Chan, has told me that the offence to which you committed whilst in custody in Lai Chi Kok was because you had tried to get more cigarettes during your time in Lai Chi Kok. They were committed on three different days, however only one officer was involved. She says that you admitted immediately your guilt for those offences and asked this court not to reflect this further transgression on the sentence you will receive as it is an offence of a completely different nature.
Defendant, in mitigation, Ms Chan submits that you were living a grassroots life until you mingled with some bad peers and started breaking the law at the age of 20. You tried to stay away from trouble and worked hard after your discharge from prison in 2015. However, after the outbreak of the pandemic, your work was adversely affected and your income greatly cut due to the economic downfall. A friend who showed you care at the time offered this job, you took it out of greed and foolishness and therefore you agreed to take part in trafficking dangerous drugs and committed this offence.
Defendant, you are very remorseful committing this offence as you feel sorry for your mother who could not visit you due to her poor mental condition. You have reflected on your own life and asked for an opportunity to be able to look after your mother. You claim that you would never commit an offence again. You have written a heartfelt letter to this court, apologising that your sister now has to look after your mother and that you are not there to look after your ailing mother. You carry a heavy burden of guilt, remorse, deep sorrow and regret.
I note that you had tried your best to offer assistance to the police by giving a non-prejudicial statement but this, as your counsel says, has not been constructive assistance.
Defendant, I received very heartfelt letters from your family members, being your mother, your sister and your sister’s husband or your brother-in-law. They have all said that you are a filial son and brother and speak well of you. They have asked me to handle this case with compassion and earnestly asked me, implore me to treat you with leniency, though recognising the seriousness of this offence. Your sister informs me that you have been a very good brother to her in all these years and she also is heartbroken and shocked and deeply regrets your actions.
Defendant, you have committed two offences of trafficking. The approach to sentencing in drug trafficking cases are the ones laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and complemented in HKSAR v Lee Ming Ho [2024] HKCA 150. The application of the principles and steps are set out as follows.
The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. The tariff case for the drug methamphetamine hydrochloride which is commonly referred to as ‘Ice’ is that of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The tariff case for the drug ‘Ecstasy’ and ketamine is set out in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For the purposes of sentencing you, I take a global approach and will sentence you, the defendant on the total amount of drugs in both Charges 1 and 2. I shall adopt the combined and conversion approach for that, after which I will sentence you, the defendant on the individual charges reflecting the sentence for all the drugs.
For the total quantity of drugs trafficked in both cases for ‘Ice’ would be that of 28 grammes of ‘Ice’ in Charge 1 plus 10,784.83 grammes of ‘Ice’ in Charge 2, which totals 10,812.93 grammes of ‘Ice’. In Charge 2, there was 138.72 grammes of ketamine. That amount of ketamine in following Hii Siew Cheng falls within the bracket of 50 to 300 grammes which attracts a sentence of 6 to 9 years’ imprisonment.
In sentencing for that amount of ketamine, that sentence would be one of about 7 years’ imprisonment. I will convert the drug ketamine to that of ‘Ice’, so that you should be sentenced on the whole amount of ‘Ice’. In converting that amount of ketamine to ‘Ice’, that would amount to about 10 grammes of ‘Ice’. Therefore, adding up the drugs in both charges, the total amount of ‘Ice’ is 10,822.93 grammes of ‘Ice’.
Pursuant to the tariff of Tam Yi Chun and HKSAR v Abdallah [2009] 2 HKLRD 437, where large amounts are involved that amount of ‘Ice’ falls in the bracket of between 4,000 and 15,000 grammes where the range of sentence is between 26 to 30 years’ imprisonment. In sentencing you for this amount, arithmetically speaking, that would attract a starting point of 28 years and 3 months’ imprisonment.
The second step is to assess your role and culpability based on the evidence. I accept you were a courier and storekeeper. You can also be shown to be dealing in dangerous drugs to others in the sense that you were actually and directly trafficking.
The third step is to identify where in the relevant band you come, bearing in mind your role as stated just now. Taking into account your role and the guidelines in the third band, I consider that an appropriate starting point should be that of 28 years and 3 months’ imprisonment.
The fourth step is the consideration of any aggravating factors. I do not consider your similar previous record of trafficking in dangerous drugs as an aggravating factor such as to enhance the sentence as that offence was committed more than 10 years ago and since you were released from prison to the time you committed this offence was approximately 6 years.
The aggravating factor in this case is the trafficking of large amounts of two different types of drugs which allowed you to cater for a wider market. For this aggravating factor, I enhance the sentence by 6 months. So the notional starting point is therefore 28 years and 9 months’ imprisonment.
The fifth step is to consider all mitigating factors, bearing in mind in this particular branch of sentence personal circumstances generally count for little. Your personal circumstances and the condition of your mother and your sister therefore is not a mitigating factor. The most significant mitigating factor is your early pleas of guilty. You will benefit from that by this court awarding a one-third discount to the notional starting point.
The starting point being 28 years and 9 months’ imprisonment will therefore be reduced to 19 years and 2 months’ imprisonment to which you shall serve.
Defendant, you are charged with two offences and you must be sentenced separately for both offences to reflect the total sentence as I have mentioned. I turn then to sentence you on Charge 1. You were trafficking in 28 grammes of ‘Ice’ and following the case of Tam Yi Chun, that amount falls in the band of 10 to 70 grammes which warrants a sentence of between 7 to 11 years’ imprisonment. For this amount of ‘Ice’, I take a starting point of 8 years’ imprisonment and after a one-third discount, that term shall be reduced to 5 years and 4 months to which you shall be sentenced on Charge 1.
In Charge 2, defendant, you were trafficking in 10,784.93 grammes of ‘Ice’ and 138.72 grammes of ketamine. As stated and calculated above, in adopting the combined conversion approach of ketamine to ‘Ice’, that would amount to 10 grammes of ‘Ice’. So the total ‘Ice’ in Charge 2 amounts to 10,794.93 grammes. The starting point of that amount of ‘Ice’ after trial would be 28 years and 3 months’ imprisonment. After a discount of one-third for your plea of guilty, the sentence is therefore reduced to 18 years and 10 months’ imprisonment.
To reflect the sentence you shall serve of 19 years and 2 months, I order 4 months of Charge 1 to run consecutive to Charge 2. That means that, defendant, as I mentioned earlier, you shall serve a total term of imprisonment of 19 years and 2 months’ imprisonment.
Defendant, the sixth step is observe the overall sentence passed to ensure that this is fair, just, and balanced in all the circumstances of this offence and the offender. I have observed that and I consider it so.