COURT: Defendant, on 11 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 were committed here to the Court of First Instance for sentence. Both offences were committed on 11 October 2021 on the 19th Floor of Sau Ching House, Sau Mau Ping Estate.
The only difference between the two charges was the location. The 1st charge was committed at the lift lobby on the 19th floor of Sau Ching House, Sau Mau Ping Estate, and in that charge, you admitted to unlawfully trafficking 995 grammes of a solid containing 813 grammes of ketamine. In the 2nd charge of trafficking, you admitted that on 19th Floor at Room 1910 of Sau Ching House, Sau Mau Ping Estate, you unlawfully trafficked in 103 grammes of a solid containing 0.11 grammes of cocaine, and 0.71 grammes of ketamine, 13.6 grammes of a solid containing 11.5 grammes of ketamine, 24.5 grammes of a solid containing 20.69 grammes of cocaine and two electronic scales containing traces of a solid containing cocaine and ketamine.
The Summary of Facts dated 26 April 2023 has been admitted by you and support the facts of the charge. On 11 October 2021, customs officers conducted an operation in Sau Mau Ping Estate. At about 1947 hours, customs officers spotted you carrying a white plastic bag acting suspiciously at the pavement of Sau Ching House. A customs officer followed you into the lift in Sau Ching House and exited the lift on the 19th floor together with you. The officer intercepted you at the lift lobby. He called other officers for support.
You were searched and a set of keys were found on you as well as the dangerous drugs quantified in Charge 1. They were contained in a total of eight plastic bags.
Defendant, you were arrested and cautioned and you said under caution inter alia the white powder found inside the white plastic bag carried by you were dangerous drugs. You claimed you did not know what type of drugs they were and that you were threatened by someone to carry the drugs. Those are the facts in relation to Charge 1.
In relation to Charge 2, at about 1956 hours, you were escorted to the address as stated in Charge 2 which is your residential address for a search. Upon search of your residence, the drugs as quantified in Charge 2 were found. There were 152 plastic bags containing the drug cocaine, one plastic bag containing the drug ketamine and other plastic bags containing the drugs cocaine and ketamine. Also found in the residence were some containers, a pair of scissors, a pair of forceps, two electronic scales and a bundle of unused zip-lock bags. It was confirmed by the housing authority that you were a resident in the premises and your grandfather was the principal occupant.
I turn now to the background and mitigation. Defendant, you are now 20 years of age and single. You were born in Hong Kong. At the time of this offence, you were 17 years of age and had just finished Form 4. You were studying a diploma in Yi Jin. You lived with your father, grandparents, step-mother and half-brothers. Your mother and elder sister are living in Shenzhen and you seldom see them.
You are a person of clear record, never having committed an offence. I am told you are not drug dependent. In mitigation, your counsel Ms Vivien Chen has submitted that prior to the commission of this offence, you led a simple and uneventful life just as an ordinary young man. You used to play basketball after school with some friends. However, it was one of these friends, ‘Ah Chan’, who suggested and asked if you wanted to earn some quick money. You immediately thought of your grandparents who loved you very much and you thought that you could support them and your family. You know that your grandparents were still financially supporting you although they had retired and were living on limited savings.
In order to become financially independent and relieve the financial burden of your parents and grandparents, you agreed to take part in this very serious offence and receive $2,000 for each delivery of drugs out of greed and foolishness. You have heard Ms Chan say today in court that you were used by the drug trafficker and it was your naïveness and foolishness and out of greed you committed this offence.
I am impressed that whilst you have been in custody, you had learnt some English and have written a letter to me in English. Your writing is very nice and I can see that you are deeply remorseful committing this offence. You were apparently deceived as you were told that there were drug addicts and that you would not cause damage anyway as drug addicts needed drugs. However, now you know that this is not the case, that you are actually proliferating drugs into the community and you bear the consequences of that.
You told me whilst you are serving your term, you hope to use your time positively to be able to contribute to society upon your release.
I accept, of course, your remorse in committing this offence and that you were a young man of 17 when you were lured to commit this offence by those dubious peers. I think you well know now, defendant, everybody works hard and long to make money. Whenever money comes quickly and easily, then that must ring a bell. Otherwise, everybody would do that. The reason why it’s quick and easy is because you are more than likely committing some sort of offence. So I think you have learnt a great lesson from this now.
Now, turning to sentence. The sentence approach to sentencing in drug trafficking cases are the ones laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 complemented in HKSAR v Lee Ming Ho [2024] HKCA 150. The application and the principles are 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 ‘Ecstasy’ and ketamine is set out within the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The tariff case for the drug heroin and cocaine is R v Lau Tak Ming [1990] 2 HKLR 370.
In sentencing you, defendant, I take a global approach by converting all the drugs that is the cocaine, to ketamine, then combining the drugs in both charges amounting to a total amount of ketamine. That is the combined and conversion approach. On this combined and conversion approach, defendant, I will sentence you on the total quantity of drugs trafficked in both offences based on the drug ketamine, and then sentence you individually for each charge.
Defendant, the total amount of ketamine in Charge 1 and 2 is 825.21 grammes, that is the amount in Charge 1 of 813 grammes and in Charge 2, the amount of 0.71 plus 11.5, which is 12.21 grammes. I will convert the drug cocaine to ketamine, add up the total amount of ketamine for both charges.
In sentencing for the amount of 20.8 grammes of cocaine in Charge 2, in accordance to Lau Tak Ming, that falls within the bracket of 10 to 50 grammes, attracting a sentence of between 5 to 8 years’ imprisonment. In sentencing you for 20.8 grammes of cocaine, the sentence would be 5 years and 9 months. Converting that to ketamine, that would amount to about 47 grammes of ketamine. The total ketamine involved in the two charges is therefore 825.21 grammes plus 47 which equals a total of 872.21 grammes.
Following the guideline in Hii Siew Cheng, 872.21 grammes of ketamine which falls within the band of 600 to 1,000 grammes, attracting a sentence of 12 to 14 years’ imprisonment. For this amount of ketamine, the sentence would arithmetically speaking be 13 years and 3 months’ imprisonment.
The second step is to assess the role and culpability of the defendant based on the evidence. Defendant, you were a courier and storekeeper and delivering the drugs in return for a sum of money. You can be shown to be dealing in dangerous drugs to others in a sense of actual or direct trafficking.
The third step is to identify where in the relevant band you, the defendant, comes. Taking into account the third band in the guidelines, I consider that an appropriate starting point given your role should be that of 13 years and 3 months’ imprisonment.
The fourth step is a consideration of any aggravating factors. Although defendant you were trafficking in two types of drugs, I consider the amount of cocaine to relatively small. In the circumstances, I do not consider to, this as an aggravating factor, such that calls for an enhancement of your sentence.
The fifth step is to consider all mitigating factors bearing in mind that in this particular branch of sentence, personal circumstances generally count for little. There is no mitigation factor in regard to personal circumstances. The most significant mitigating factor, defendant is your early pleas of guilty at the first opportunity. For this, defendant, you will benefit from a one-third discount from the starting point. The starting point in this case being one of 13 years and 3 months therefore shall be reduced to 8 years and 10 months’ imprisonment to which you shall serve.
Defendant, I must now sentence you for the two charges individually which will reflect the total sentence.
Defendant, in Charge 1, you were trafficking in 813 grammes of ketamine. As stated earlier, the starting point is one of 13 years and 3 months’ imprisonment. Giving you the one-third discount, that term shall be reduced to 8 years and 10 months’ imprisonment.
In Charge 2, I shall adopt the conversion and combined approach as there are two different drugs. I will convert the ketamine to cocaine since cocaine is a more potent drug and larger in quantity. The total ketamine here is 12.21 grammes. Following Hii Siew Cheng, that would fall in the bracket of 1 to 10 grammes with a starting point of 2 to 4 years’ imprisonment. For that amount of drugs, that will attract a sentence of 4 years’ imprisonment. A conversion to cocaine would amount to about 7 grammes of cocaine. Adding 7 grammes to 20.8 grammes of cocaine equals 27.8 grammes of cocaine.
In following Lau Tak Ming, that falls within the band of 10 to 50 grammes where a sentence of imprisonment between 5 to 8 years’ imprisonment is appropriate. For the amount of 27.8 grammes, I would accordingly take a starting point of 6 years and 3 months’ imprisonment and after a one-third discount reduce that term to 4 years 2 months.
To reflect the global sentence of 8 years and 10 months’ imprisonment, I order both terms in Charge 1 and 2 to run concurrent to each other.
As the sixth step is to observe the overall sentence passed to ensure that it is fair, just, and balanced in all the circumstances of this offence and you, defendant, I consider it to be so.