The defendant, Lau Kam-lo, pleaded guilty to two charges of possession of a dangerous drug, Charge 1 and 3, and one of trafficking in dangerous drugs, Charge 2, in the court below and admitted the Summary of Facts dated 8 December 2021. He confirmed his guilty pleas and admission of the facts before me today. I convicted the defendant of all three charges on his own pleas and admission.
Charge 1 concerns 0.80 grammes of a solid containing 0.69 grammes of ketamine.
Charge 2 concerns the following dangerous drugs:-
(1) 1,352.86 grammes of a solid containing 1,148.17 grammes of ketamine;
(2) 105.12 grammes of a solid containing 87.70 grammes of fluorodeschloroketamine, herein after referred to as “FDCK”;
(3) 2.14 grammes of a crystalline solid containing 2.14 grammes of methamphetamine hydrochloride;
(4) 6.68 grammes of a crystalline solid containing 1.02 grammes of methamphetamine; and
(5) 0.68 grammes of cannabis in herbal form.
The Facts
The Summary of Facts dated 8 December 2021 reads:-
“1st Charge - Drugs found on the defendant
(1) At 1935 hours on 15 July 2020, CO1285 and CO17229 (PW1 & PW2) intercepted the defendant at the staircase of the 1st Floor of Chin Lung Building, No. 73 Chuen Lung Street, Tsuen Wan (“the Building”).
(2) Upon search on the defendant’s person, inside the left front pocket of his trousers, one packet containing 0.80 grammes of a solid containing 0.69 grammes of ketamine was found. The defendant also had two keys in his possession.
(3) The defendant was arrested and cautioned. Under caution, the defendant stated the ketamine was for his self-consumption and the keys were for the iron gate and the door of Room A8, 2nd Floor of the Building (“Room A8”).
2nd Charge - Drugs found inside Room A8
(4) The defendant was then escorted to Room A8. Using the keys found on the defendant, the iron gate and the room door were opened and the officers gained access to the premises. A search was conducted at Room A8 in the presence of the defendant. Among other things, the following items were found:-
(i) 173 plastic bags containing a total of 1,352.86 grammes of a solid containing 1,148.17 grammes of ketamine;
(ii) 10 plastic bags containing a total of 105.12 grammes of a solid containing 87.70 grammes of flurodeschloroketamine;
(iii) 3 plastic bags containing a total of 8.82 grammes of a crystalline solid containing 3.16 grammes of methamphetamine;
(iv) 1 plastic box containing 0.68 grammes of herbal cannabis;
(v) A wrapping machine;
(vi) A spoon with brush;
(vii) Two electronic scales; and
(viii) Piles of resealable plastic bags.
(5) The defendant was further arrested and cautioned. Under caution, the defendant admitted inter alia that:-
(i) The drugs found at Room A8 were ‘K Chai’, ‘ICE’ and ‘Cannabis’ and they all belonged to him;
(ii) The packaging paraphernalia were used for repacking of the drugs;
(iii) An unknown person called him at about 3 o'clock that day. He then collected the drugs from an unknown person;
(iv) He would wait for further instruction for handling the drugs;
(v) He would receive a reward of HK$18,000.
3rd Charge - Drugs found at the defendant’s residence
(6) On 16 July 2020, a house search was conducted at the defendant’s residence at Room 733, 7th Floor, Shek To House, Shek Wai Kok Estate in his presence.
(7) Six plastic bags containing a total of 3.09 grammes of a crystalline solid containing 3.09 grammes of methamphetamine were found inside a box that was placed in a cabinet at the residence.
(8) The defendant was arrested and cautioned. Under caution, the defendant stated that:-
(i) The dangerous drugs found were ‘ICE’ which belonged to him;
(ii) The drugs were for his self-consumption;
(iii) He had taken the drugs from Room A8;
(iv) The cabinet where the drugs were found was solely used by him.
VRI of the defendant
(9) In the subsequent video recorded interview, the defendant refused to answer any question.
Estimated street value
(10) The Custom and Excise Department has kept no record of the average retail price for flurodeschloroketamine. For valuation purpose, the average retail price for ketamine will be applied to flurodeschloroketamine.
(11) In July 2020, the estimated value of the dangerous drugs seized in the 2nd Charge, which included ketamine, flurodeschloroketamine, methamphetamine and cannabis, was about HK$680,988 in total.
(12) The defendant admits and accepts that he was knowingly in possession of all the dangerous drugs seized in this case. The defendant further admits and accepts that he was in possession of the subject dangerous drugs of the 2nd Charge for the purpose of trafficking.”
Antecedent of the Defendant
The antecedent statement of the defendant reveals that he is 48 years old, born in mainland China. He received education up to primary level. He is married and he has a daughter aged 20 and a son aged 11. He worked as a manager in a logistic company between 2005 and 2008. He was unemployed afterwards.
He has two previous convictions of possession of dangerous drug. Both cases took place in 2002. He was fined for the first case in 2002 and sentenced to DATC for the second case.
I have considered the mitigation advanced by Mr Ernest Yuen, counsel for the defendant. It is wrong for Mr Yuen to submit that Charge 3 is one of trafficking in dangerous drugs. It is also wrong for Mr Yuen to state in paragraph 2 of his skeleton submissions that:-
“For Charge 3, the particulars of offence states that the defendant trafficked 3.09 grammes of methamphetamine hydrochloride.”
Hence the total amount of ‘Ice’ involved in the only trafficking charge, ie. Charge 2, should not include the 3.09 grammes of ‘Ice’. Because of the said mistake, the quantity of ‘Ice’ used in the application of the absurdity test, conversion test and ratio test and to be adjusted, with 3.09 grammes of ‘Ice’, the subject matter of Charge 3, be taken away.
And the proceedings hard to be adjourned to enable the defence to make appropriate amendments to the written mitigation.
Mr Yuen submits that the defendant started to abuse dangerous drugs when he was young. After the defendant became unemployed in 2018, he resumed abusing dangerous drugs again. He was lured to commit the present offence in order to earn quick money. Mr Yuen submits that a portion of ‘Ice’ and herbal cannabis found were for the defendant’s own consumption (paragraph 11 of the skeleton submission). Mr Yuen submits that although the portion of drugs for self-consumption falls short of significant proportion, he urges me to exercise my discretion to award a small discount from the starting point taken for sentence to reflect this factor.
Mr Yuen submits that the combined approach should be adopted in determining the starting point. Mr Yuen submits that bearing in mind the totality principle, the terms of imprisonment for the three charges should run concurrently.
Consideration
The defendant trafficked in large quantities of dangerous drugs. He was also found in possession of some dangerous drugs for his self-consumption. The dangerous drugs for his self-consumption are the subject matters of Charge 1 and 3.
Charge 2 concerns:-
(1) 1,352.86 grammes of a solid containing 1,148.17 grammes of ketamine;
(2) 105.12 grammes of a solid containing 87.70 grammes of FDCK;
(3) 2.14 grammes of a crystalline solid containing 2.14 grammes of methamphetamine hydrochloride;
(4) 6.68 grammes of a crystalline solid containing 1.02 grammes of methamphetamine; and
(5) 0.68 grammes of cannabis in herbal form.
After hearing counsel and after considering the expert report placed before me, I shall apply the tariffs for trafficking in ketamine to FDCK. I shall add the 87.70 grammes of FDCK to the 1,148.17 grammes of ketamine. The total quantity of narcotics for the application of the tariff for trafficking in ketamine in SJ v Hii Siew Cheng [2009] 1 HKLRD 1 is therefore 1,235.87 grammes.
The total quantity of ‘Ice’ for Charge 2 is 3.16 grammes.
The presence of 0.68 grammes of herbal cannabis, given its quantity, has little bearing on the starting point and the ultimate sentence for Charge 2.
I agree with counsel that I should adopt the combined approach in determining the starting point.
I should also follow the 6 steps approach to sentencing for offences of trafficking in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2020] HKCA 974.
Of the four kinds of dangerous drugs involved in Charge 2, ‘Ice’ is the most serious type in terms of potency. For 3.16 grammes of ‘Ice’, applying the tariff in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, an initial starting point of 3 years’ imprisonment is called for.
In my judgment, the presence of 1,235.87 grammes of ketamine and FDCK, which formed the main bulk of the dangerous drugs seized from Room 8A, has a significant impact on the sentence. The initial starting point should be increased.
Bearing in mind the role of the defendant in the present case, he had the keys of the premises, and apart from the dangerous drugs seized, there was a wrapping machine, a spoon with brush, two electronic scales and piles of resealable plastic bags, there was also admission from the defendant that the packing paraphernalia were used for the repacking of the drugs, it is obvious that the defendant was responsible not only for the delivery but also the repacking of the dangerous drugs in the premises.
In my judgment, the initial starting point of 3 years’ imprisonment should be increased to 15 years which, in my judgment, should adequately reflect the gravity of the offence as revealed by the types and quantities of the dangerous drugs and also the culpability of the defendant as shown by the role he played in the trafficking of the drugs.
The defendant is entitled to the full one-third reduction for his early plea, that would bring the sentence from 15 years’ down to 10 years’ imprisonment. I am not prepared to give the defendant any additional reduction for his claim that a small quantity of the dangerous drugs seized in Room 8A were for his self-consumption. The facts show that the ketamine found on the defendant’s person and the ‘Ice’ found at his residence were for his self-consumption. Obviously, the defendant has separate storage for the dangerous drugs for his self-consumption and the ones for trafficking. He admits and accepts that he possessed the dangerous drugs of Charge 2 for the purpose of trafficking (paragraph 12 of the Summary of Facts). I can see no other mitigating factors apart from the guilty plea of the defendant.
For the reasons given on Charge 2, I sentence the defendant to 10 years’ imprisonment.
For Charge 1 and Charge 3, I have considered the case of HKSAR v Mok Cho Tik[2001] 1 HKC 261. I take into consideration the defendant was an abuser of dangerous drugs at the time of the offences. The defendant has two previous conviction records for possession of dangerous drugs. Bearing in mind the defendant was also a drug trafficker apart from being an abuser of dangerous drugs, there was a latent risk that the ketamine and ‘Ice’ would fall into the hands of others. In my judgment, a starting point of 15 months’ imprisonment each for Charge 1 and 3 is appropriate.
The defendant is entitled to one-third reduction for his guilty pleas.
For the reasons given on Charge 1, I sentence the defendant to 10 months’ imprisonment.
For the reasons given on Charge 3, I sentence the defendant to 10 months’ imprisonment.
Sentences
Charge 1, 10 months’ imprisonment; Charge 2, 10 years’ imprisonment; and Charge 3, 10 months’ imprisonment.
Totality
Taking into consideration the totality principle, in my judgment, a total sentence of 10 years’ imprisonment should adequately reflect the overall culpability of the defendant for the three offences.
I order that the terms of imprisonment for Charge 1, Charge 2 and 3 shall run concurrently with each other.
The total sentence is 10 years’ imprisonment.