COURT: The defendant pleaded guilty to two counts of trafficking in dangerous drugs.
Count 1 involves trafficking 2.63 grammes of a solid containing 1.78 grammes of ketamine outside Room 145, on 14th Floor, King’s Hotel, No. 50 Temple Street, Yau Ma Tei, Kowloon, which I will refer to as “the Room”.
Count 2 involves trafficking in 105.1 grammes of a crystalline solid containing 103.3 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’); 13.5 grammes of a solid containing 7.39 grammes of ketamine; 41 tablets and 0.34 grammes of tablet fragments containing 1.67 grammes of ketamine and 0.35 grammes methamphetamine; and 32 tablets containing 2.59 grammes of what I would simply refer to as MDMA or ‘Ecstasy’ at the Room.
Summary of Facts
On the night of 17 August 2022, police officers laid ambush in the vicinity of the Room. At 8.08 pm, the defendant
walked along the corridor near the Room with a white paper bag, and he then opened the door of the Room with a key card. He was then intercepted by the officers.
Inside the white paper bag was a laptop computer bag. Upon search of the laptop bag, the following items were found:
(1) 2.63 grammes of a solid containing 1.78 grammes of ketamine;
(2) cash of HK$12,960;
(3) two mobile phones;
(4) one tablet computer; and
(5) a room key card.
The police officers arrested the defendant and conducted a search in the Room. The following items were found:
(1) A plastic bag containing 13.5 grammes of a solid containing 7.39 grammes of ketamine placed on an electronic balance or scales;
(2) a plastic box containing a total of 105.1 grammes of a crystalline solid containing 103.3 grammes ‘Ice’;
(3) 32 tablets containing a total of 2.59 grammes of MDMA;
(4) 21 tablets and 0.34 grammes of tablet fragments containing a total of 0.87 grammes of ketamine and 0.35 grammes of ‘Ice’;
(5) 20 tablets containing a total of 0.8 grammes of ketamine; and
(6) a calculator, a pair of scissors and a bottle of water.
In summary, a total of 103.65 grammes of ‘Ice’, 10.84 grammes of ketamine and 2.59 grammes of MDMA were found. The estimated street value was HK$73,463.
The defendant had moved into the hotel since 28 December 2021. He was relocated to the Room on 12 July 2022. He has only been given one key card and he had requested no cleaning for his room from the beginning.
The defendant admits that at all material time, he possesses the drugs for the purpose of unlawful trafficking.
The Defendant’s Background and Submission in Mitigation
The defendant is currently 34 years old. He was born in the Philippines and holds a bachelor’s degree in hotel and restaurant management. He used to work as a waiter in a restaurant, but has been unemployed since 2021. He then relied on his wife’s income for a living.
The defendant has no previous criminal convictions.
Consideration of Sentence
This case involves two charges against the defendant in the relevant hotel on the same day. Following the approach of the Court of Appeal in HKSAR v Wan Lau Mei, CACC 389/2013, I would regard the two counts in the present case as representing one occasion of possession of the total amount of drugs, and impose the same sentence on both offences for that total, and I will make the sentences concurrently with one another.
The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I shall follow the six-step sentencing approach set out in that case.
The sentencing tariff for ‘Ice’ is provided for in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For quantities of 70 grammes to 300 grammes, the sentencing band is 11 to 15 years.
The sentencing tariff for ketamine and ‘Ecstasy’ are provided for in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 146. These two drugs have the same tariff and therefore I will simply add up the quantities for calculation. For quantities of 10 to 50 grammes, the sentencing band is 4 to 6 years.
In respect of the role and culpability of the defendant, there is insufficient evidence before me to infer that the defendant’s role went beyond that of a courier or storekeeper.
In terms of the arithmetic calculation, the starting point for trafficking 103.65 grammes of ‘Ice’ is 139 months, and for 13.43 grammes of ketamine and MDMA, the starting point is 50 months.
In a case of trafficking in multiple drugs, according to HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367, the court will first need to consider whether the “individual approach” or the “combined approach” should be used.
Which approach is appropriate would depend on the circumstances of the case. Here, I will adopt the combined approach.
There are three means to cross-check the appropriateness of the overall starting point in a case of cocktail drugs, namely the “absurdity test”, “conversion test”, and “ratio test”. In the calculations below, I have rounded down the figures to the nearest month.
Under the absurdity test, the quantity of all drugs seized, that is 117.08 grammes, it is assumed to be the most potent drug, which is ‘Ice’ in this case. For 117.08 grammes of ‘Ice’, the starting point is 141 months.
Under the conversion test, ‘Ice’ will again be taken as the base. The same sentence of 50 months for 13.43 grammes of ketamine and ‘Ecstasy’ equates to the sentence for 2.916 grammes of ‘Ice’. Adding this up and the actual 103.65 grammes of ‘Ice’ in this case will give a converted total of 106.56 grammes of ‘Ice’, which is 139 months.
Under the ratio test, 88.53 per cent of the total quantity is ‘Ice’. If all the drugs are taken to be ‘Ice’, the starting point is 141.83 months, and 88.53 per cent of that comes to 125.56 months. Next, 11.47 per cent of the quantity is ketamine and MDMA. If all the drugs were taken to be ketamine and MDMA, the starting point is 81.66 months, and 11.47 per cent of that comes to 9.37 months. The sum of the two gives 134 months after rounding down.
Mr Hui, counsel for the defendant, urged this court to adopt the ratio result of 134 months as the starting point to reflect the criminality in question. That, however, is lower than the starting point of 139 months for the 103.65 grammes of ‘Ice’ actually trafficked by the defendant in this case, without having even taken into account the ketamine and MDMA.
Having regard to the drug mix in the present case, together with the fact that cocktail drugs are involved, the appropriate starting point in my judgment is 141 months, or 11 years and 9 months’ imprisonment. That is the starting point for each of Counts 1 and 2.
The only mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point. This will reduce the sentence to 7 years
and 10 months’ imprisonment for each of Counts 1 and 2. The sentences in respect of each count are to be served concurrently with each other.
I will sentence you to 7 years and 10 months’ imprisonment.