COURT: The defendant was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.
It is alleged that he, on 6 January 2021, near Lamppost GD2548, No. 38 Yuen Long On Ning Road, Yuen Long, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 34.3 grammes of a crystalline solid containing 33.52 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’), 19.96 grammes of cannabis in herbal form and 2.73 grammes of a solid containing 2.36 grammes of ketamine.
The defendant pleaded guilty to the said charge before the magistrate at the committal proceedings and was committed to the Court of First Instance for sentence on 19 September 2022.
The defendant comes before me today for sentence. He confirms his plea and his admission to the Summary of Facts produced by the prosecution.
The Facts of This Case
The facts giving rise to this case as agreed by the defendant are as follows:
At about 10:40 pm on 6 January 2021, patrolling police officers noticed a private car travelling along the bus lane on Castle Peak Road and turning into Kik Yeung Road in Yuen Long. They patrolled at the vicinity intending to locate the said private car.
Around 20 minutes later at about 11 pm on the same day, the said private car was spotted by the police to have been located near the lamppost GD2548 on On Ning Road. The defendant was found sitting at the driver’s seat at the time. Upon search of the car, it was found in the storage box between the driver’s seat and the front passenger seat 11 plastic bags containing the dangerous drugs as particularised in the charge against the defendant. There were also 10 resealable plastic bags and one electronic scale found. A spring knife was found in the storage box near the driver’s seat.
The aggregate amount of dangerous drugs seized amounts to a total of 33.52 grammes of ‘Ice’, 19.96 grammes of cannabis in herbal form and 2.36 grammes of ketamine.
The defendant remained silent when he was arrested and he was cautioned for the offence of trafficking in dangerous drugs.
In a subsequent video-recorded interview, the defendant admitted under caution that he received the drugs from a man named ‘Yee Chai’ for self-consumption and trafficking. He was responsible for delivering the dangerous drugs to the buyer who was interested to buy the drugs and the man ‘Yee Chai’ had agreed to pay him, the defendant, after he had sold the drugs. The defendant could not provide any details of that person, Yee Chai.
At the time of the offence, the estimated street values of the ‘Ice’, ketamine and herbal cannabis seized were $18,213, $1,837 and $4,970 respectively, adding up to a total of around $25,000.
The Defendant’s Background
The defendant is now 41 years old, born in Hong Kong and received education up to Form 2. He is married, but has separated with his wife since 2020. He has a daughter now aged 8 years old. His daughter lives with, and is taken care of, by her mother since the defendant’s separation with the wife.
The defendant worked as a dump truck driver for 4 months from January 2020, earning a monthly salary of $20,000. He was unemployed in May 2020 and had since lived on the support of his family members and his two elder brothers thereafter. The defendant’s family members and his elderly parents and two elder brothers. At the time of the offence, he was residing with his two elder brothers in public housing estate.
The defendant has a string of previous criminal convictions, 14 in total, including five counts of possession of dangerous drugs and one count of trafficking in dangerous drugs. His first conviction was in July 2001 for possessing dangerous drugs and I was told for ketamine and ecstasy, for which offence he was sentenced to a probation order of 12 months. Less than two years later, in February 2003, he was convicted of the same offence and was fined $2,000. In July 2012, he was again convicted of possessing dangerous drugs as well as a charge of possessing Part I poison for which case he was sentenced to 18 months’ imprisonment, suspended for 2 years, and fined 3,000 in total. Around a year later, in August 2013, he breached the suspended sentence order and committed five counts of offences, including three counts of road traffic offences, one count of possession of dangerous drugs and one count of handling stolen goods. He was sentenced to 10 months’ imprisonment on that occasion. His last conviction record was in December 2017, which is one of trafficking in dangerous drugs, where upon he was sentenced to 6 years’ imprisonment. He was released from gaol in January 2020, less than a year before the commission of the present offence.
Mitigation
It is submitted on his behalf by Mr Wong, counsel for the defendant, that the defendant is remorseful towards the present offence and is now determined to turn a new leaf. Mr Wong submits that the defendant committed the present offence due to financial reason, not only for his living, but also to satisfy his addiction to drugs. Mr Wong also invites me give the defendant full credit of his timely plea of guilty. It is also suggested that the defendant consumed a part of the drugs and the court is invited to give discount on that note. I shall deal with that separately later on.
Sentencing Principles and Tariffs
The courts of Hong Kong have consistently adopted a serious view and approach in handling cases of drug trafficking, particularly in relation to drugs which have serious consequences for both the individual and the community at large, including ‘Ice’ and ketamine. This can be reflected in the nature of the sentences and the levels of those sentences imposed. The policy underlying the approach to sentencing drug trafficking offence is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines in the form of tariffs for various forms of dangerous drugs, including ‘Ice’ and ketamine, two of the subject drugs in this case.
The tariffs that are applicable in relation to trafficking in ‘Ice’ and ketamine are respectively derived from the cases of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.
According to the applicable sentencing tariffs, a quantity between 10 and 70 grammes of ‘Ice’ would attract a starting point for sentence of between 7 and 11 years’ imprisonment, whereas a quantity between 1 to 10 grammes of ketamine would attract a starting point for sentence of between 2 to 4 years’ imprisonment.
Regarding the herbal cannabis, according to HKSAR v Chor Lui [2001] 3 HKLRD 95, the sentence for trafficking in below 2,000 grammes of herbal cannabis may be up to 4 months’ imprisonment.
Sentencing principles where there is more than one drug involved
The Combined Approach
A further dimension to the sentencing exercise, which is required in this case, is to consider the fact that a collection of different dangerous drugs is involved. The appropriate approach in computing the overall starting point for trafficking in what is named cocktail drugs has been articulated in a number of authorities, including HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Ko Ka Hing [2009] 4 HKLRD 856; HKSAR v Wong Kin Kau [2010] 4 HKC 443; HKSAR v Yau Ka Ming (unreported, CACC 144/2013); HKSAR v Chan Yuk Leong (unreported, CACC 318/2013) and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.
The approach is a reflection of the basic principle that sentencing is an art, not a mathematical exercise, and the art of sentencing is devoted to producing a just result given the circumstances of the defendant and the circumstances of the case itself. The essence of the appropriate approach is that if the drugs are approximately similar in nature, then it would be fair and appropriate to use the approach known as the ‘combined approach’, bearing in mind that there might necessarily have to be adjustments even if the combined approach is used to avoid absurdity.
It is a common ground between the parties that this is an appropriate case where the ‘combined approach’ should be adopted in calculating the sentence for ‘Ice’ and ketamine. As for the herbal cannabis, given it is a drug of lower potency and the amount involved in this case is not significant at all, I accept the view from both parties that this drug may be disregarded in the computation of the overall starting point for all practical purposes.
Under the ‘combined approach’, the first step requires the determination of relevant starting point for each drug. The sentencing bands have already been identified above. The quantity of ‘Ice’ in this case is 33.52 grammes. On a strict arithmetic calculation, the starting point is one of 8 years and slightly more than 6 months. The quantity of ketamine is 2.36 grammes, the starting point is therefore about 2 years and slightly more than 3 months.
As ‘Ice’ is the more serious drug in terms of potency as compared with ketamine, I come to the view that the justice of this case is best served by adopting the ‘combined approach’ and adjusting upwards the starting point of 8 years 6 months to 8 years 7 months, taking into account the quantity of ketamine involved.
I have cross-checked this starting point against the results of the absurdity test, the conversion test and the ratio test as I shall elaborate now.
(i) Absurdity Test
The relevant principle is stated in Yip Wai Yin. It is appropriate to first test the position by assuming the entire quantity of drugs as ‘Ice’, which is the more serious kind of drug. If all the drugs seized were ‘Ice’, which produce a combined weight of 35.88 grammes, the arithmetic starting point would be about 8 years 8 months.
(ii) Conversion Test
The relevant principle is stated in Wong Kin Kau. I apply the conversion test by converting all the drugs into the two different types of drugs, namely, ‘Ice’ and ketamine respectively.
Converting All the Drugs into ‘Ice’
By applying the ratio of ketamine to ‘Ice’, namely five to one, as stated in Wong Kin Kau, 2.36 grammes of ketamine would be equivalent to around 0.47 grammes of ‘Ice’.
Hence, if all the drugs were ‘Ice’, the original 33.52 grammes plus 0.47 grammes would result in 33.99 grammes of ‘Ice’ in total.
For this quantity of ‘Ice’, it would result in a starting point of 8 years 7 months.
Converting All the Drugs into Ketamine
The starting point for trafficking in 33.52 grammes of ‘Ice’ would be one of 8 years and slightly more than 6 months.
8 years and 6 months is the starting point for trafficking in equivalent of 264 grammes of ketamine.
So if all the drugs were ketamine, the original 2.36 grammes plus 264 grammes would result in 266.36 grammes of ketamine in total, and for this quantity of ketamine, a starting point of 8 years and slightly more than 7 months would be appropriate.
Thus, under the conversion test, the lower of the starting points would be to convert all drugs into ‘Ice’, which would produce 8 years and 7 months as the starting point.
(iii) Ratio Test
The principle is stated in Yau Ka Ming. The ratio test would produce a result of 8 years and 6 months, based on the proportion of the different drugs involved.
|
Drug |
Sentence (assuming 35.88 grammes of a single drug)
|
Ratio |
Sentence
|
|
‘Ice’ |
105 months |
0.934
|
98.094 months |
|
Ketamine |
64 months
|
0.0658 |
4.210 months |
|
|
|
TOTAL
|
102.304 months
|
Starting Point Adopted For This Case
The absurdity test, conversion test and ratio test are a means to the ultimate objective of providing a cross-check as to where the appropriate sentence lies. The ultimate result is still to meet the object of the sentencing policy of the courts of Hong Kong, which is deterrence, combined with a recognition that a separate treatment of each drug together with a consecutive sentence might not produce a just result, even against the imperative of deterrence.
In the circumstances of this case, it seems to me that a starting point of 8 years and 7 months, cross-checked against results of the three tests I mentioned, would produce a just outcome.
Now, insofar as the 19.96 grammes of herbal cannabis is concerned, as I mentioned earlier on, I accept that the amount is negligible as compared to the other drugs involved and may for this reason be disregarded for the computation of the overall starting point. That said, for what it is worth, I should perhaps still indicate the starting point that I would adopt for the quantity of cannabis involved. With reference to the authorities submitted, including Attorney General v Chan Chi Man [1987] 2 HKLR 221 and HKSAR v Butt Muhammad Gulzar [2020] HKCA 597, I take the view that an appropriate starting point is one of 3 months’ imprisonment, but that starting point may be regarded as being subsumed in the overall starting point of 8 years and 7 months I adopt for the two other drugs, namely, ‘Ice’ and ketamine.
Discount for Guilty Plea
After arriving at the appropriate starting point, as stated by the Court of Appeal in the case of Tam Yi Chun and I quote:
“These are starting points after trial, in other words before enhancement for aggravating features, if any, and before reduction for such mitigating factors, most commonly in this category of offence, a plea of guilty. It is still for the sentencing judge to take into account, in application of the tariffs, the degree of involvement of the offender, the previous history if any of narcotic offences...”
The authorities confirm that a person who pleads guilty at the earliest practicable opportunity is entitled to a full one-third discount from the appropriate starting point. The defendant pleaded guilty at the committal stage and is therefore entitled to the full one-third discount in accordance with the sentencing approach in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, reducing the overall starting point to 5 years and 8 months.
On the other hand, taking into account the defendant’s previous history of his repeated involvement in narcotic offences, including possession of dangerous drugs and trafficking in dangerous drugs, I am of the view that there is basis for this court to enhance the sentence and I opine that a 3 months’ enhancement is warranted for this aggravating feature in the circumstances of this case on this ground. This would bring the overall starting point after discount for plea of guilty to one of 5 years 11 months.
Self-consumption
It is submitted by Mr Wong on behalf of the defendant that the defendant is a regular user of ‘Ice’, consuming 1 to 2 grammes of ‘Ice’ a day and that half of the ‘Ice’ seized from the defendant in this case was for his own consumption. On this basis, Mr Wong invites the court to give a reduction of sentence to the extent that the sentence should be discounted for 10 percent. He relies on cases such HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, as well as HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.
On the other hand, the prosecution takes issue with this assertion of almost half of the drugs, ‘Ice’, seized were for the defendant’s consumption. Miss Lo helpfully points me to what the Court of Appeal stated in Tam Yi Chun at paragraph 26 of the judgment and paragraph 27 of the judgment, which points out that for regular users of ‘Ice’, the average daily consumption is in the range of 0.1 to 0.5 grammes of ‘Ice’. That Miss Lo suggests counters the assertion by Mr Wong on behalf of the defendant that the defendant was consuming 1 to 2 grammes of ‘Ice’ a day.
Regarding this assertion of reliance on self-consumption as a mitigating factor, the Court of Appeal in Wong Suet Hau set out the proper approach in considering this matter.
“(1) Where, after a plea of guilty to trafficking in dangerous drugs, it is suggested in mitigation, that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.
(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.
(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include:
i. the quantity of drugs and, if known, their value;
ii. the general circumstances, including how the drugs are wrapped, and how many wraps or packages are found;
iii. where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;
iv. the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;
v. whether the defendant is an addict or is otherwise accepted to have been a habitual user of the drug in question;
vi. the explanation given by the defendant following arrest;
vii. the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and
viii. the defendant’s criminal record, if any, in
relation to previous drug offences.
Usually, a court will be able to determine the issue from these factors without a Newton hearing.
(4) Where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it is unnecessary, save in the most exceptional case where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except perhaps in the very broadest of terms. In such circumstances the court should so adjust sentence as to reflect the fact that not all the drugs were for trafficking. However in doing so, the judge should keep well in mind:
i. the fact that possession of dangerous drugs itself carries a term of imprisonment; and
ii. the requirement to enhance sentence for simple possession of drugs to reflect, where appropriate, the ‘latent risk’ factor (see: HKSAR v Mok Cho-tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others.
An application of considerations (i) and (ii) may well offset much of the practical value of the mitigation, particularly with certain dangerous drugs which are commonly used amongst friends at social functions, including ice (see HKSAR v Lam Wai-ip, unreported, CACC 214/1997) and ecstacy (see HKSAR v Lee Tak-kwan [1998] 2 HKC 371 at 376).
(5) Where the mitigation has necessitated the holding of a Newton enquiry after which the mitigation is rejected, the court will be entitled to reduce by an amount appropriate to the circumstances, the discount normally given following a plea of guilty (see: R v Lee Chiu-pang [1995] 2 HKC 523 at 526).
(6) Sentencers should remember as to ‘trafficking’ itself, that its gravity is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction (see: R v Lau Tak-ming and Anor [1990] 2 HKLR 370 at 385).”
In the subsequent case of Chow Chun Sang, the Court of Appeal indicated that the appropriate range of discount for such a mitigating factor, where it is said that “all or part of the dangerous drugs were for self-consumption” should be one of 10 percent to 25 percent discount. It has been established in subsequent cases, however, that in order to merit such a discount, meaning a discount at such a level of 10 percent to 25 percent, it must be demonstrated that a significant or substantial part of the drugs was for self-consumption.
As said, in the present case, Mr Wong submits that the defendant would consume 1 to 2 grammes of ‘Ice’ a day. Hence, on his calculation, he would consume up to half of the ‘Ice’ that he was found to be in possession of, namely, around 16.76 grammes.
Regarding the assertion of self-consumption, Mr Wong submits that it is not necessary for this court to conduct any Newton inquiry and the court is in a position to make a decision or assessment in this regard by way of considering submissions by counsel. The prosecution, as I mentioned, takes issue with the assertion that almost half of the drugs was for self-consumption.
On the basis of the defendant’s claim in mitigation that half of the drugs seized from him was for his own consumption and if accepting his assertion that he consumed 1 to 2 grammes of ‘Ice’ a day, the quantity of drugs involved, namely, 16.76 grammes of ‘Ice’, half of the drugs seized, would have lasted him around 8 to 16 days.
The defendant agreed in the Summary of Facts that, as he said in the video-recorded interview under caution, he received the drugs from a man named ‘Yee Chai’, he asserted, for his own consumption and for the purpose of trafficking. There were no other details provided in the Summary of Facts regarding the defendant’s habit and the amount of drugs that he was given that were intended for his own consumption with the rest being for trafficking.
On the other hand, with a view to establishing the defendant’s addiction history, Mr Wong has submitted to the court a urine test report prepared by Lai Chi Kok Reception Centre dated 15 July 2022, and Mr Wong has also drawn reference to the defendant’s criminal record, identifying the previous conviction records involving drugs. The urine test report shows that the defendant was tested positive for amphetamine, that it seems to support the defendant’s claim that he was a habitual user of methamphetamine hydrochloride, the ‘Ice’ in question.
Meanwhile, the court notes that at the time of the arrest, the subject drugs were contained in 11 plastic bags and that there were items used for packaging and weighing of dangerous drugs found on the defendant’s car, including the resealable plastic bags and electronic scale. On the contrary, no items for consumption of drugs, ‘Ice’ or otherwise, were found on the defendant’s car.
I have also considered, in this respect, the defendant’s background as submitted by Mr Wong in his mitigation. In particular, I note that the defendant had been unemployed and had been living on the support of his family members since May 2020, albeit it has been suggested that he had been working as a dump truck driver, earning $20,000 a month for the previous four months.
In the circumstances, and having considered all the materials available before me, including the quantity of drugs involved, the circumstances of the offence and the defendant’s arrest, the way in which the drugs were seized and packaged, the explanation given by the defendant under caution as set out in the Summary of Facts, the urine test report produced by Mr Wong for the defendant, the information about the defendant’s employment history and his financial means, as well as what has been advanced by Mr Wong on the defendant’s behalf in his mitigation, I cannot be satisfied that a significant portion of ‘Ice’ seized was indeed for the defendant’s own consumption. I therefore find no basis to warrant a discount at the level of 10 percent as suggested by Mr Wong for the asserted self-consumption by the defendant. That said, I do accept that there is basis to support the defendant’s claim that he has been a drug addict in ‘Ice’ for some time and that a portion of the drugs found in his possession may well be for his own consumption, albeit not a significant portion. And in accordance with the case of HKSAR v Kong Tat Lung [2018] 5 HKLRD 623, I am prepared to exercise my discretion to award a discount of 3 months on sentence for that reason, being the defendant’s claimed self-consumption of some of the drugs, ‘Ice’, found in his possession. That would accordingly bring the sentence of 5 years 11 months down to 5 years and 8 months.
In conclusion, considering all the circumstances of the case, including the defendant’s background, all the mitigating circumstances as advanced by Mr Wong, the aggravating feature in relation to the defendant’s previous conviction records, showing that he is a repeated offender in narcotic offences, and the fact that the present offence was committed by the defendant after his release from gaol in 2020 January, I am of the view that it is appropriate to adopt a starting point of 8 years and 7 months, give the full one-third discount for his early plea, enhance the sentence for 3 months for his previous criminal convictions for drug offences, and thereafter exercise my discretion to allow a 3-month discount for the mitigating factor that he had some (but not any significant part) of the drugs, ‘Ice’, for his own consumption.
The final sentence would therefore be 5 years 8 months and that is the sentence that I would impose on the defendant.