(i) one count of trafficking in a dangerous drug involving 59.5 grammes of ketamine (“Count 1”);
(ii) one count of trafficking in a dangerous drug involving 181.6 grammes of ketamine (“Count 2”);
(iii)one count of possession of a dangerous drug involving 3.74 grammes of cannabis (“Count 3”); and
(iv) one count of conspiracy to traffic in a dangerous drug namely, ketamine, between a day unknown in early July 2022 and 5 September 2022 (“Count 4”).
At about 5.19 pm on 5 September 2022, the defendant was observed by police officers to be leaving from a unit on the 6th Floor, Block B, Yau Tong Industrial City, in Yau Tong, I
will simply refer to it as “the Unit”. The defendant then walked down a staircase and was intercepted at the staircase of the 5th Floor. Upon conducting a body search, amongst other things, 100 plastic bags containing a total of 69.1 grammes of a solid containing 59.5 grammes of ketamine were found in the defendant’s pocket. This formed the basis of Count 1.
The Unit was leased to the defendant under a tenancy agreement dated 18 July 2022, for a period of two years, with a monthly rent of $6,700.
Police officers then proceeded to search the Unit and seized, amongst other items, the following:
(1) One aluminium bowl containing 20 plastic bags containing a total of 13.8 grammes of a solid containing 11.6 grammes of ketamine
(2) One plastic box containing 198 grammes of a solid containing 170 grammes of ketamine
(3) One plastic bag containing 0.36 grammes of a solid containing trace amounts of ketamine
The total of (1), (2) and (3) that I just mentioned formed the basis of Count 2.
(4) One plastic bag containing 3.74 grammes of cannabis in herbal form
This formed the basis of Count 3.
(5) A pair of scissors and one lighter
(6) Two electronic scales
(7) A large number of empty transparent resealable plastic bags
(8) A blue sealing machine
(9) Cash of $1,040
The defendant was then arrested. In a subsequent video-recorded interview, the defendant described inter alia how he came into contact with a person who was referred to as KJJ in the Summary of Facts, and how he came to follow KJJ’s instructions to rent the Unit and buy various items. The defendant was then heavily in debt at the time and wanted to work and earn money. The defendant then described four occasions on which he trafficked in ketamine on the instructions of KJJ during the period of the Count 4 conspiracy.
(i) The first occasion took place in early July 2022, when he received a call to pick up a paper bag from a car.
The defendant opened the paper bag when he returned to
the Unit and found about 250 grammes of ketamine
contained inside. KJJ then told him to grind, repack
and examine the drugs. Later on, he received a call
and then he returned the paper bag to another car as
per instructions.
(ii) The second occasion took place in mid-July 2022, and a
similar thing happened. The defendant was asked to
collect a bag containing drugs from a car, after which
he would put the drugs in a plastic box, weighed them,
and then repackaged tem into bags of 0.7 grammes per
bag and sealed each of them with the sealing machine.
After he has finished repacking, he would put all the
bags into a silver bowl and await for instructions.
Whenever KJJ needed drugs, he would take a certain
amount of drugs and put them into a bigger bag, and
place them in a wire duct near the ceiling on the 4th
Floor of the building. The defendant said he never met
the person collecting the drugs. This job lasted for
about a month.
(iii) The third occasion was in mid-August 2022, when he
collected and repacked the drugs, and delivered them to
the 4th floor wire duct in the same manner. He
delivered this whole batch of drugs by the end of
August 2022.
(iv) The fourth occasion was on 3 September 2022, when he
collected the drugs at about 11.30 pm and repackaged
the drugs in the same manner. Later in the afternoon,
on 5 September 2022, the defendant was arrested by the
police when he was delivering 100 bags of the
repackaged drugs to the 4th floor as per KJJ’s
instructions.
The defendant also said in his video-recorded interview that his remuneration for the trafficking activity was $500 per day, and if 150 bags of drugs (each of 0.7 grammes) could be delivered on a day, an additional $500 would be paid. The defendant did not get paid for the first two occasions of dealing with the drugs, but he got paid with a total of $40,000 on the third and fourth occasion.
The admissions made by the defendant in his video-recorded interview formed the basis for Count 4.
As at September 2022, the estimated street value of 281.26 grammes of ketamine (that is the gross weight) would be HK$163,693.30, calculated at HK$582 per gramme (again, gross weight). The estimated street value of cannabis was calculated at HK$174 per gramme.
The Defendant’s Background
The defendant was 20 years old at the time of the offence and is now 22 years old. He was born in mainland China but moved to and settled in Hong Kong shortly after his birth. His parents then divorced a few years later and he has been living with his father and his stepmother for the majority of his formative years.
A few days prior to his arrest, he had just commenced his study at the Vocational Training Council for an Accounting Higher Diploma programme.
The defendant has no previous convictions.
I have read the letters written by the defendant himself, his maternal mother, and also his stepmother. I accept that the defendant is genuinely remorseful for his actions and is viewed by his mother and stepmother as a filial and genuinely well-behaved son. The defendant was in financial debt after having made some bad investments, and was looking to make quick money to repay the substantial debt. The defendant was then recruited by KJJ to traffic in ketamine.
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 set out in Yusuph.
The first step is to identify the relevant guideline band or bracket applicable to the quantity of drug concerned. The guidelines applicable for trafficking in ketamine is set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.
In respect of Counts 1 and 2, the combined narcotic content is 241.1 grammes of ketamine. Following HKSAR v Wan Lau Mei [2014] 4 HKC 75, the Court of Appeal held that where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations, the sentencing court should impose sentences on both offences for a total narcotic content, and then make the sentences concurrent with one another.
Adopting that combined approach, for trafficking in a total of 241.1 grammes of ketamine, a mathematically calculated place within the relevant sentencing band would be 8 years and 3 months’ imprisonment, after rounding down.
On the evidence, there is nothing to suggest that the defendant had any further role beyond the culpability of an ordinary storekeeper and courier. I therefore assess his culpability on that basis. I do not see any basis for departing from the mathematically calculated starting point, and that is the starting point I will adopt for each of Counts 1 and 2.
In respect of Count 3, a possession charge of a small amount of cannabis, I will adopt a starting point of 3 weeks’ imprisonment.
Count 4 requires a more detailed consideration as it is a conspiracy charge spanning over the course of around 2 months from early July to early September 2022. As stated by the Court of Appeal in the case of HKSAR v Chan Kam Loi CACC 410/2012, at paragraphs 100 to 102:
“Thus, even in respect of inchoate offences, the natural course is for the court to analyse the evidence to see whether it allows the court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.”
“The evidence may not always allow for precise quantification, but it may be possible to reach a view of the very least (and I emphasise those three words)
that was trafficked by recourse to inferences drawn
from the evidence or assumptions based on the evidence.
Such a course is permissible as long as the inferences
and assumptions are based upon evidence and do not
become mere speculation with no evidential foundation.
Whether the evidence and the inferences that are drawn
from it enable the court to have recourse to the
quantity-based sentencing bands will inevitably vary
from case to case. But sight should not be lost of the
ultimate goal which is to make an accurate assessment
of the gravity of the offence so as to enable the court
to impose a just sentence.”
The Court of Appeal also made similar remarks in the case of HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799 at paragraph 33. The sentencing guidelines provided by the Court of Appeal in respect of trafficking in ketamine are based upon the quantity of the drugs being trafficked. In order to arrive at a proper starting point, this court would need to analyse the evidence to see whether inferences can be properly drawn as to the quantity of the ketamine which the defendant had agreed to traffic over the period of the Count 4 conspiracy. Bearing in mind that unless the facts which give rise to the inferences are clear-cut, this court must lean in favour of the defendant.
I will deal, in turn, with the gross weight and narcotic content of the drugs trafficked over each of the four occasions within the period of the Count 4 conspiracy that the defendant spoke to in his video-recorded interview:
(i) In respect of the fourth occasion, the amount of ketamine involved are represented by the total drugs under Counts 1 and 2, namely a total of 281.26 grammes of solids containing 241.1 grammes of ketamine. The purity content of this batch of ketamine is therefore 85.7 per cent.
(ii) In respect of the first occasion, the defendant himself said in his video-recorded interview that he was given “about 250 grammes of ketamine”. Given that the defendant used the word “about” and did not provide a specific exact figure, and taking a view most favourable to the defendant, I will proceed on the basis that he was provided with drugs with a gross weight of 230 grammes. I would then make allowance for the inevitable variation in purity between different consignment of the drugs as noted in Chan Kam Loi at paragraph 104. I will adopt a purity content of 70 per cent. Therefore, in respect of the first occasion, I will proceed on the basis that the amount of ketamine dealt with was 161 grammes.
(iii) In respect of the second and third occasions, the defendant did not mention the weight of the drugs being dealt with. In assessing the weight of the drugs that the defendant would have dealt with on these two occasions, I note the following two matters:
(a) The defendant’s admissions that the drugs on the second and third occasions took a whole month and two odds weeks respectively to disseminate. This can be contrasted and compared with the fourth occasion during which his single trip of delivery to the 4th Floor on 5 September 2022, when he was apprehended, involved 100 bags of ketamine that came to a gross weight of 69.1 grammes, which was about 25 per cent of the total gross weight of the drugs that the defendant had been provided with on the fourth occasion.
(b) Next, the defendant also mentioned that his remuneration would be calculated at $500 per day. On this basis, for a period of over two months between early July and early September, he should therefore have been paid around $30,000 - but he had in fact been rewarded with $40,000. The defendant said that he would be rewarded with an extra HK$500 if 150 bags of drugs, each bag containing 0.7 grammes, could be delivered in one day - thus, 150 bags would mean a total gross weight of 105 grammes. To reach an extra $10,000 in remuneration over and above the daily remuneration over the two-month conspiracy period would mean that there would have been 20 deliveries in which 150 bags of drugs, each containing 0.7 grammes, have been delivered to the 4th floor location on each of those 20 deliveries.
(iv) From the combination of the above, it can be inferred that the drugs with which the defendant had been provided with on the second and third occasions, which together took a month and a half to disseminate, would be fairly substantial and comparable to the drugs provided to the defendant on the first and fourth occasions. However, I will proceed on a view most favourable to the defendant, and taking into account the fact that but for the defendant’s admissions, the prosecution would not have known about the details of the conspiracy (see paragraph 41 of Tsang Ka Wing), I will assess the drugs being dealt with on the second and third occasions together as being equal to the drugs that the defendant had been provided with on the first occasion – namely - a gross weight of 230 grammes containing 161 grammes of ketamine.
In my judgment, the calculations above are skewed heavily in the defendant’s favour and represents the very least amount of ketamine that have been trafficked by the defendant during the period of the Count 4 conspiracy. I therefore proceed with Count 4 on the basis that the conspiracy concerned 563.1 grammes of ketamine over the four occasions as described by the defendant.
Adopting the guidelines applicable for trafficking in ketamine as set out in Hii Siew Cheng, for trafficking in a total of 563.1 grammes of ketamine, a mathematically calculated place within the relevant sentencing band would be 11 years and 7 months’ imprisonment, after rounding down.
There are no other factors in the present case which requires any enhancement from the mathematically calculated starting point, and therefore that is the starting point I will adopt for Count 4.
I have borne in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44 where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Although I accept that the defendant is genuinely remorseful and genuinely hopes to start a new life after he completes his prison term and make positive contributions to society, personal circumstances in cases of this nature do not constitute mitigating factors and cannot provide the defendant with any further sentencing discount.
The only mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting points in respect of each count. The reduced sentences in respect of each count, which I will adopt as the final sentence in respect of each count, are as follows:
(i) For each of Counts 1 and 2, 5 years and 6 months’ imprisonment.
(ii) For Count 3, 2 weeks’ imprisonment.
(iii) For Count 4, 7 years and 8 months’ imprisonment.
Since the drugs in respect of Counts 1 and 2 are already incorporated into Count 4, and Count 3 is only a very minor offence of possession, I will order that all the sentences be served concurrently, resulting in a total of 7 years and 8 months’ imprisonment.
Defendant, I sentence you to a total of 7 years and 8 months’ imprisonment.