The defendant pleaded guilty in the Eastern Magistrates’ Courts to two charges of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. This morning, she confirmed her plea before me and accepted the Summary of Facts.
Briefly, it was agreed that in the evening of 17 July 2019, the defendant was seen acting furtively when coming out from Siu Hing Building at Temple Street. As a result, she was intercepted for investigation at the junction of Jordan Road and Temple Street. The drugs particularized in the first charge, that is, a total of 125.18 grammes of a solid containing 89.76 grammes of cocaine were found inside 660 plastic bags kept in the paper bag which she was carrying.
Upon arrest and under caution, the defendant stated that she wanted to earn some quick money, and she therefore delivered the drugs for others.
Subsequently, the defendant was brought to Room 1 of Flat B on the 11th floor of the building for investigation. The police used the keys found on the defendant to gain access to the room and, as a result, three electronic scales and some empty transparent resealable plastic bags as well as the following drugs particularized in the 2nd charge were found in different parts of the room.
Two plastic bottles containing a total of 1.97 litres of a liquid containing 966 grammes of cocaine hydrochloride; one plastic container containing 0.22 grammes of a solid containing 0.22 grammes of cocaine hydrochloride; 630 plastic bags containing a total of 2,349.22 grammes of a solid containing 1,846.83 grammes of cocaine; 62 paper packets containing a total of 19.3 grammes of a powder containing 1.91 grammes of ketamine and 14.6 grammes of F-ketamine, which is fluorodeschloroketamine; 10 plastic bags containing a total of 130 grammes of a powder containing 107 grammes of ketamine; and a plastic bag containing 204 grammes of a powder containing 172 grammes of F-ketamine.
The estimated total value of the drugs was over HK$3.5 million.
Mitigation and the Defendant’s Background
The defendant is now aged 37 and is single. She received education up to Form 2 and had worked as a salesperson and a waitress, earning about HK$9,000 per month prior to her arrest. The defendant has got two previous convictions: one of theft in 2005 and one of possession of a dangerous drug in 2013. She was respectively fined and put on probation for the two offences.
In mitigation, Ms Lai for the defendant told the court that because of the defendant’s sexual orientation, she was asked to leave home in 2004. In 2015, the defendant suffered from asthma and she almost met with her death. Her parents then visited her and reunited with her. It was said that the defendant committed the present offences as she would like to improve the living standard of her parents and she therefore wanted to earn some quick money. Ms Lai submitted that the defendant is now remorseful and is determined to turn over a new leaf. Letters from the defendant and her mother were given to the court in which the defendant repeated her remorse and in which her mother begged for leniency on the defendant’s behalf, saying that the defendant was a good-natured person.
Sentencing Considerations
In this case, fluorodeschloroketamine, a new psychoactive substance, is involved and there is, at present, no sentencing tariff in relation to this drug. However, Ms Lai confirmed before me that the defence accepted that its potency is similar to that of ketamine. I therefore consider that the sentencing tariffs for ketamine should apply.
Similarly, Ms Lai accepted that the tariffs for trafficking in cocaine should apply to the cocaine hydrochloride seized.
Now, the tariffs for cocaine are the same as those laid down for heroin in The Queen v Lau Tak Ming & Ors [1990] 2 HKLR 370 and in HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking between 1,200 grammes to 4,000 grammes of cocaine, the sentence is a term of imprisonment of between 23 to 26 years.
For ketamine, the tariffs were set out in SJ v Hii Siew Cheng [2009] 1 HKLRD 1 and that for trafficking between 50 to 300 grammes of ketamine, a term of imprisonment of 6 to 9 years is called for.
Since the two charges to which the defendant pleaded guilty involved multiple drugs, there are two sentencing approaches, that is, the individual approach and the combined approach. See, for example, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856.
In this case, having considered all the circumstances including that cocaine constituted the bulk of the drugs in Charge 2, I find it appropriate to adopt the combined approach for that charge.
No doubt there is an aggravating factor which I need to take into account in sentencing and that is an enhancement to reflect the more serious nature of trafficking in different types of drugs. For example, see HKSAR v Chan Yuk Leong, CACC 318/2013, (8 April 2014, unreported).
In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the Court of Appeal set out a six-step approach for a sentencing judge to follow when assessing the appropriate starting point in a case of trafficking in a dangerous drug.
Applying that approach and insofar as this defendant is concerned, I find that, on the evidence before me, she could properly be regarded as a courier or storekeeper despite the large quantities involved as, apart from the drugs seized, there was no other evidence to suggest that she was the mastermind.
Therefore, having considered the facts of this case and all the relevant circumstances, including that the two lots of drugs were found on the same day; that the facts in respect of the two charges were closely linked together; that a more severe sentence should be passed when there was more than one kind of drug involved; that the established principle is to arrive at an overall starting point having considered the total drugs seized; as well as that drug sentencing is not purely mathematical calculations, I take the view that an overall starting point for the two charges of 24 years is appropriate.
I have cross-checked this figure by using the conversion test which would yield a term of 24 years and 11 months; the ratio test which would yield a term of 22 years and 10 months; and the absurdity test which would yield a term of 25 years and 2 months.
Standing back, I can see that the overall term of 24 years should sufficiently reflect the defendant’s criminality in this case. I therefore adopt 24 years as the starting point for both Charges 1 and 2.
Sentencing in this Case
In relation to the mitigation advanced before me, while it is disheartening for the family to see the defendant going to prison for a long term, it remains a fact that drug trafficking is a serious offence which brings huge harm to the community. In the circumstances, the defendant’s personal background could not be of help in her mitigation.
As pointed out earlier, the defendant pleaded guilty at the committal stage. She would receive the full one-third reduction for that. Other than her guilty plea, there is nothing in this case which would warrant any further reduction in sentence.
24 years reduced by one-third is a term of 16 years’ imprisonment. I therefore sentence the defendant to 16 years for each of Charges 1 and 2. But given that the 24 years’ starting point is the overall term I consider appropriate for the two charges, I therefore order that the terms for both charges are to be served wholly concurrently, resulting in a total term of 16 years.