COURT: The defendant is charged with one count of trafficking in dangerous drugs. The charge alleges that on 10 February 2022, at the junction of Reclamation Street and Dundas Street, Yau Ma Tei, he unlawfully trafficked in dangerous drugs, namely, 97.9 grammes of a solid containing 82.5 grammes of ketamine, and 10.91 grammes of a solid containing 9.6 grammes of cocaine. The defendant pleaded guilty to the charge at the committal proceedings and was committed to the Court of First Instance for sentence.
The facts giving rise to the case are as follows. On 10 February 2022, at around 12.55 am, the defendant was found sitting alone in his car at the junction of Reclamation Street and Dundas Street. Feeling suspicious, the police approached the car and demanded a search of the defendant and his car.
Upon search, two plastic bags of dangerous drugs were found in the defendant’s front trousers pocket. In one of the plastic bags, there were 15 plastic bags containing suspected cocaine. In another plastic bag, there were nine smaller plastic bags containing suspected cocaine.
Inside the car, the police found from the storage compartment 43 plastic bags containing suspected ketamine and 30 plastic bags containing suspected cocaine. At the rear passengers’ seat of the car, the police found 45 plastic bags containing suspected cocaine which were stored inside a black plastic bag.
The total quantity of drugs seized were later confirmed to be 97.9 grammes of a solid containing 82.5 grammes of ketamine and 10.91 grammes of a solid containing 9.6 grammes of cocaine. The quantity of cocaine constituted less than 10 per cent of the whole lot of drugs found. One mobile phone and cash of around HK$12,000 and some renminbi cash were found on the defendant.
Under caution at the scene, the defendant said the drugs were his and were for his own consumption. In the subsequent video-recorded interview, the defendant admitted that the drugs seized by the police were purchased by him from a friend, albeit he could not recall the name or the contact of that friend. He had the habit of consuming ketamine for around 10 years but he admitted that he had no longer had this drug habit by the time of the arrest. And the cash seized by the police from him were his which he intended to use for his family’s expenses.
The car was found to have been rented by the defendant from 12 December 2021 to 11 February 2022, which is the day after the arrest. The car was cleared of all items at the time of its rental to the defendant.
The estimated street value of the drugs involved are HK$17,434 for the cocaine and HK$42,195 for the ketamine.
Background of the Defendant
The defendant is now aged 38. He was born and brought up in mainland China. He came to Hong Kong in 2000 when he was aged 15. He was separated from his former wife and was at the time of the arrest living with his girlfriend and his son, aged 16, who was at the time studying Form 4.
He was educated up to Form 3. Before the offence, he worked as a lorry driver at a logistics company.
He has a string of criminal convictions for seven offences in total, four of which are dangerous drugs related, with a conviction for trafficking in dangerous drugs in 2020 for which he was sentenced to 2 years’ imprisonment on 14 April 2020. The other three dangerous drug related convictions were for possession of dangerous drugs which took place a long while ago in 2004 and 2009. He was last discharged from prison in October 2020.
In mitigation, I was told by Mr Yuen on the defendant’s behalf that he was the sole breadwinner of the family. He worked as a lorry driver at the time and since the pandemic, his earning was substantially reduced. Since it was around Chinese New Year at the time of the offence, the defendant was badly in need of money. He was thus lured by his friend to earn some quick money by helping to deliver the batch of drugs. He was promised a sum of HK$2,000 but he had not actually received the reward before his arrest.
He now deeply regrets what he did and fully appreciates the consequence being a substantial term of imprisonment. He asks the court for leniency so that he can reunite with his family, in particular his son, as soon as possible.
The strongest and perhaps only mitigating factor is his timely and early plea of guilty.
Sentencing Principles and Tariff
The relevant approach in sentencing drug trafficking involving multiple drugs has been set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Chan Yuk Leong, CACC 318/2013. According to the authorities, the court must adopt the six-step approach in its consideration of the sentence to be imposed.
First, the court must assess the gravity of the offence by looking at the type and quantity of the drugs in question. The drugs involved here are cocaine and ketamine, and the applicable tariffs are the well-established guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 and SJ v Hii Siew Cheng [2009] 1 HKLRD 1.
For cocaine, the quantity involved here is 9.6 grammes, which would fall under the first band under the Lau Tak Ming tariff which states that any quantity of cocaine up to 10 grammes would attract 2 to 5 years’ imprisonment. An arithmetic calculation for this quantity would result in a starting point of 4 years and 11 months’ imprisonment.
For ketamine, 82.5 grammes of ketamine would fall under the band which stipulates that any quantity of ketamine of between 50 to 300 grammes would attract 6 to 9 years’ imprisonment. For this quantity of 82.5 grammes of ketamine, the starting point should be one of 6 years and 5 months’ imprisonment.
Given the multitude of dangerous drugs involved, the court is to apply the combined approach as set out in the case of Chan Yuk Leong. Whilst cocaine is the more potent drug
between the two, there is a huge difference between the quantity of cocaine and ketamine seized in this case. And given that there is far more ketamine than cocaine seized, I take the view that it is appropriate to use ketamine as the base drug to derive the starting point upon which I shall adjust the sentence upwards. In other words, I will take the starting point of 6 years and 5 months for the quantity of ketamine involved and I would adjust it upwards to 6 years and 9 months’ imprisonment.
I have cross-checked this against the result of the various tests - the absurdity test, the conversion test, and the ratio test, as I shall summarise below.
Absurdity Test
The sentence produced is 9 years and 1 month’s imprisonment.
Ratio Test
The sentence is 6 years and 9 months’ imprisonment.
Conversion Test
If the court converts all the drugs into cocaine, the sentence would be 7 years and 1 month.
If the court converts all the drugs into ketamine, the sentence would be 6 years and 9 months.
Hence, after cross-checking with these tests, the court is of the view that 6 years and 9 months would be the appropriate starting point.
Insofar as the defendant’s role is concerned, I accept what Mr Yuen said in his mitigation that there is no evidence which indicates that the defendant played any role more than that of a courier or storekeeper. Hence, I will not enhance the starting point on the basis that the defendant has assumed roles more serious than that of a courier or storekeeper.
The next step of the sentencing approach is to consider whether there are any aggravating factors which warrant an enhancement of the starting point. In my view, and it is sensibly accepted by Mr Yuen, there are two such aggravating factors present in this case.
First, for the previous convictions, namely the dangerous drug related convictions, especially the conviction for trafficking in dangerous drug in 2020. The defendant was released from prison in October 2020 and he committed the present offence 1 year and 4 months afterwards. In this regard, the court considers it necessary to enhance the sentence of the defendant given his previous conviction for drug trafficking. I consider an enhancement of 4 months for that factor to be appropriate in the circumstances of this case and the defendant.
Furthermore, there is the involvement of more than one type of dangerous drug in this case and this leads to the other aggravating factor that I consider necessary to enhance the sentence. The authority speaks consistently that the court has to take into account the aggravation that the involvement of more than one drug can cater to a wider market, resulting in risks of serious effects of users consuming a combination of drugs (see Chan Yuk Leong [2014] HKLRD 325). For this aggravating factor, I consider an enhancement of 2 months to be appropriate.
In these circumstances, I consider it appropriate to enhance the defendant’s sentence for the two aggravating factors by a total of 6 months, bringing the sentence to 7 years and 3 months. That is 6 years 9 months plus 6 months.
The next step requires the court to consider any mitigating factors. Given the defendant’s early plea, I am prepared to give him the full one-third discount for the offence in question. This would bring the sentence down to one of 4 years and 10 months. There are no other real mitigating factors applicable to the defendant.
The last step of the sentencing process is to step back and look at the overall sentence to see whether it is fair and just. Having considered all the circumstances of the case, I take the view that the ultimate sentence of 4 years and 10 months is appropriate and not disproportionate to the defendant’s culpability.
Defendant, I sentence you to a total of 4 years and 10 months’ imprisonment.