COURT: The defendant pleaded guilty to one count of conspiracy to traffic in dangerous drugs in the Eastern Magistrates’ Court on 29 January 2024. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the Summary of Facts before me.
The particulars of the charge are that between a date unknown in February 2022 and 8 April 2022, both dates inclusive, the defendant conspired together with persons unknown to traffic in dangerous drugs, namely, methamphetamine hydrochloride (commonly known as ‘Ice’), ketamine and cocaine.
The Facts
In the evening of 8 April 2022, during an anti-narcotic operation, the defendant was intercepted at No. 14 Tin Tei Yan Road, Hung Shui Kiu (“the Premises”). At that time, the defendant was spotted with Ms So and two children, he was acting furtively.
On enquiry, the defendant said he lived at the Premises. Two mobile phones were found on him. Upon a search of the Premises, the police found three bags and one paper box in the storage room. They are:
(1) a blue bag (“the Blue Bag”)containing a plastic bag containing 996 grammes of a solid containing 986 grammes of ‘Ice’;
(2) an orange bag (“the Orange Bag”), containing four plastic packets, namely:
(a) a plastic bag containing 999 grammes of a solid containing 833 grammes of ketamine;
(b) a plastic bag containing 999 grammes of a solid containing 821 grammes of ketamine;
(c) a plastic bag containing 249 grammes of a solid containing 202 grammes of ketamine;
(d) a plastic bag containing 249 grammes of a solid containing 194 grammes of ketamine;
(3) a paper box (“the Paper Box”) containing 18 plastic packets, namely:
(a) four packets each containing a cloth containing 1.06 kilogrammes of a solid containing 500 grammes of cocaine;
(b) four packets each containing one cloth containing 1.06 kilogrammes of a solid containing 552 grammes of cocaine;
(c) four packets each containing one cloth containing 1.25 kilogrammes of a solid containing 960 grammes of cocaine;
(d) four packets each containing one cloth containing 808 grammes of a solid containing 675 grammes of cocaine; and
(e) two packets each containing one cloth containing 447 grammes of a solid containing 323 grammes of cocaine;
(4) a nylon bag containing one plastic bag containing 25.1 kilogrammes of a solid, and a nylon bag containing a plastic bag with 24.9 kilogrammes of a solid. Substances controlled under Chapter 134 were not detected in the nylon bags;
(5) one lease of the Premises and one lease of a unit at Room L, 17 Tin Tei Yan Road, Hung Shui Kiu (“the Unit”).
In summary, the total narcotics found in the Premises were (i) 986 grammes of ‘Ice’; (ii) 3.01 kilogrammes of cocaine; and (iii) 2.05 kilogrammes of ketamine.
The defendant was then escorted to the Unit for a search, but nothing suspicious was found.
Upon arrest and caution, the defendant said:
(1) The nylon bags and the Blue Bag were ‘Ice’ and that he was responsible for receiving and sending out goods;
(2) The four bags inside the Orange Bag were “K Jai” and there were dangerous drugs inside the Paper Box, but he did not know what type of drugs they were.
Later, in his first video-recorded interview under caution, the defendant made the following admissions:
(1) He was unemployed in February or March 2022 because of COVID-19, his friend introduced him to a “boss” who would call or send messages to him about the quantity of “goods to be out” and would send a “staff” to collect them. He would comply with the instructions. The goods were ‘K Jai’ and ‘Ice’.
(2) After receiving the dangerous drugs from the staff, the defendant would keep them in the storage room of the Premises.
(3) The four bags of ‘K Jai’ in the Orange Bag was received by him last Wednesday before his arrest. He said there were 12 to 13 bags at the beginning. Only four bags were left because the others have been delivered to the staff.
(4) The Blue Bag containing one bag of ‘Ice’ was also delivered last Wednesday before his arrest, but he had not touched it.
(5) The nylon bags were received about a month before arrest. He placed them in the storage room without touching them because no instructions were received from the boss.
(6) The Paper Bag containing dangerous drugs was received about one to two days before his arrest. The boss asked the staff to deliver it to the storage room.
(7) The defendant said he would be paid once a week. Every Sunday, the boss would count how many bags of drugs the defendant had delivered for the past week, and every Monday, the boss would pay the defendant. The remuneration was $500 for each small bag of ‘K Jai’ and $1,000 for each large bag of ‘K Jai’. A person nicknamed “Ah Ho” would meet the defendant and pay him in cash. The defendant said he had done five to six deliveries and had received $20,000 to $30,000. The defendant had spent all the money towards his family expenses.
(8) The defendant rented the Unit at monthly rental of $4,500. No goods had been placed in the Unit as there were no instructions.
(9) The Premises was rented by the defendant’s girlfriend, whereas the Unit was rented by the defendant on the boss’ instructions, with a view to keep more goods.
(10) One of the mobile phones was used to communicate with the boss, Ah Ho, and other staff.
In his second interview, the defendant said the Paper Box containing 18 duvet covers which belonged to him. Some dangerous drugs were wrapped in each of them, but he did not know what type of drugs they were. The defendant said he had only delivered ‘K Jai’ but not ‘Ice’. Other than the 13 bags of ‘K Jai’, the defendant said he had delivered previously about 10 bags of ‘K Jai’. They were sent to the defendant by the staff on the instructions of the boss. All these 10 bags had already been sent out to the staff.
The defendant now admits and accepts that he had conspired with other unknown persons to traffic in ‘Ice’, ketamine, and cocaine.
Background and Mitigation
The defendant is now 29 years old. He was educated up to Secondary level 3 and previously worked as a cook in a Japanese restaurant for about seven years until COVID.
Defence counsel, Mr Chau, submitted in mitigation that the defendant met Ms So in 2018 and developed a relationship. Later in 2019, Ms So gave birth to a boy. Unfortunately, they both lost their jobs during COVID and was under economic pressure. As a result, the defendant succumbed to the temptation of the rewards in committing the present offence. He expressed remorse for what he had done.
In mitigation, Mr Chau has said all he could on behalf of the defendant.
I have read the letters from the defendant and his girlfriend. Ms So informed the court that the defendant was a responsible person and used to work hard to support their livings. She asked for leniency.
According to the background report, the defendant came from a broken family and was care for by his grandparents. He dropped out of school and completed a one-year hairdressing course at VTC. While he presented to have a stable work and life pattern with no triad affiliation or drug habits, he was said to have committed the present offence in a bid to make quick money to support his family. The defendant asked for a lenient sentence.
Mr Chau submitted that the defendant was cooperative since his arrest by the police and he pleaded guilty at the earliest opportunity.
Considerations of sentence
Where a conspiracy to traffic in an unspecified quantity of dangerous drugs is involved, and the evidence was not sufficient for the sentencing court to arrive at a precise quantification of the quantity of drugs involved, reasonable assumptions and allowances most favourable to the defendant should be made.
In HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799, the court held that “unless the facts which give rise to the inferences and assumptions are clear-cut, they will inevitably lean in favour of the defence”.
The evidence from which the inferences and assumptions could be derived in the present case were the bags of ketamine, the large quantity of solids seized at the Premises, together with the defendant’s admissions as to his role in the conspiracy.
From that evidence, it could be established that the defendant had received ketamine and previously delivered 18 bags of ketamine. He admitted that he received 12 to 13 bags of ketamine at the beginning and only four such bags left. In his second interview, he admitted he had previously delivered about 10 bags of ketamine other than the 13 bags. He said he received $500 for small bag and $1,000 for each large bag and had previously received $20,000 to $30,000.
An assumption can be made in the defendant’s favour that the ketamine would be roughly similar to the purity level of the four bags. I would use the lesser of the four purities identified by the government chemist, namely, about 78 per cent.
Mr Chau had realistically and responsibly agreed with the calculations posed in scenario C of the prosecution’s submissions dated 18 November 2024. Scenario C was calculated on the average quantity of a large and a small bag of ketamine, namely, 624 grammes (ie, 999 grammes plus 249 grammes divided by 2). In light of the defendant’s admission that he had previously delivered 18 bags of ketamine, adopting the lowest purity of the four bags of ketamine seized, the estimated sum total for the calculation of the additional quantity for the conspiracy would be 8.761 kilogrammes, that is 624 grammes times 18 times 78 per cent.
Six-step approach in Herry Jane Yusuph
I now come to the six-step sentencing approach in trafficking cases as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150.
Step one: The applicable guideline band
In the present case, I use 986 grammes of ‘Ice’, 3.01 kilogrammes of cocaine, and 10.811 kilogrammes of ketamine as the total quantities of dangerous drugs in the conspiracy charge. The 10.811 kilogrammes of ketamine is arrived at by adding 2.05 kilogrammes of ketamine found in the Premises to 8.761 kilogrammes.
For cocaine and ‘Ice’, following the new guidelines in HKSAR v Huang Ruifang [2025] 2 HKC 796, trafficking in 986 grammes of ‘Ice’ and 3.01 kilogrammes of cocaine will result in a lower starting point than the previous guideline in HKSAR v Abdallah [2009] 2 HKLRD 437. Although the charge was committed before the new sentencing guideline, Article 12(1) of the Hong Kong Bill of Rights stipulate that, “if subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”
The new guidelines, relevant to the present case, are: for ‘Ice’, (i) 600 grammes to 1,500 grammes: 18 to 20 years; (ii) 5,000 grammes to 15,000 grammes: 24 to 27 years. For cocaine, (iii) 1,500 grammes to 5,000 grammes: 20 to 24 years; (iv) 5,000 grammes to 15,000 grammes: 24 to 27 years.
Applying the arithmetic approach to 986 grammes of ‘Ice’ would produce a starting point of 18 years and 10 months’ imprisonment under the applicable guidelines. If ‘Ice’ is converted to cocaine, it will be around 1,208 grammes of cocaine.
As for the approach to quantities of ketamine narcotic in excess of 1 kilogramme, this has already been considered in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, HKSAR v Chow Yau Ching [2014] 2 HKLRD 639 and HKSAR v Yeung Lok Hei [2018] HKCA 410. The Court of Appeal determined that for trafficking in 2 kilogrammes of ketamine narcotic, the starting point would be no less than 18 years’ imprisonment, while for trafficking in 3 kilogrammes, the starting point should be no less than 20 years’ imprisonment. It held at paragraph 23:
“Where large quantities of ketamine are involved, although it is not possible to enhance the starting point proportionally, a reasonable and logical approach must be that, the larger the quantity of the drug is, the more severe the sentence will be.”
At paragraph 28:
“...if more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity. The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case.”
For ketamine of 10.811 kilogrammes, I would adopt a starting point of 25 years. With this starting point, it can be converted to 8.333 kilogrammes of cocaine.
Steps two and three: The defendant’s role and capability and where within the guidelines the defendant should lie
There is no evidence before me to suggest the defendant had any role beyond the capability of a storekeeper or a carrier of drugs falling within the bottom tier of trafficking hierarchy. I therefore assess his capability on that basis.
I do not see any basis for departing from the mathematically calculated starting points.
Since three different types of drugs were involved, I will follow the sentencing approach in HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Chan Yuk Leong, CACC 318/2013, and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.
By applying the ‘absurdity test’, which treats the overall quantity of the drugs as cocaine, the starting point should be about 26 years and 11 months’ imprisonment.
As for the ‘conversion test’, if all the drugs were to be treated as cocaine, the total quantity of narcotic content for consideration of starting point would be 12.551.66 kilogrammes, that is 3.01 kilogrammes plus 1.208 kilogrammes plus 8.333 kilogrammes, which would attract a starting point of 26 years and 3 months’ imprisonment.
As the new guidelines for cocaine and ‘Ice’ are the same for quantities over 1,500 grammes, it will not be necessary to do conversion between cocaine and ‘Ice’ in this case.
If all the drugs were to be treated as ‘Ice’, the total quantity of narcotic content for consideration of starting point would be 12.329 grammes, that is 986 grammes plus 8.333 kilogrammes plus 3.01 kilogrammes, which would attract a starting point of 26 years and 2 months’ imprisonment.
While the more potent drug among the drugs seized was ‘Ice’, it made up only 6.699 per cent of the total quantity of narcotic. Cocaine takes up a more substantial portion of over 20 per cent of the total narcotic. Having considered HKSAR v Wan Lau Mei [2014] 4 HKC 75 at paragraphs 36 and 37, I would use cocaine as the base drug to calculate the starting point.
I do not consider it helpful to carry out the ratio test as there is no corresponding guideline for over 10 kilogrammes of ketamine for the purpose of cross-checking.
Looking at the matter in the round, I consider the notional overall starting point of 26 years 3 months’ imprisonment is appropriate in the present case.
Steps four and five: Any aggravating factors or mitigating factors
Trafficking in a variety of drugs is considered an aggravating feature (see HKSAR v Islam Azharul [2020] 1 HKLRD 644 and Chan Yuk Leong at paragraphs 23 to 25) as they cater for a wider market and the effects a combination of drugs would have on users (see HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542). Three different types of drugs were involved in the case. For this, I enhance the starting point by 6 months to 26 years 9 months’ imprisonment.
As for mitigating factors, the Court of Appeal made clear in Herry Jane Yusuph, that in cases of trafficking in a dangerous drug, personal circumstances will count for little, unless they are exceptional. There are none in this case. The real mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point, which brings the sentence down to 17 years 10 months’ imprisonment.
I have also considered the submission by Mr Chau that but for the defendant’s admission and cooperation, the prosecution, would not have known the details of the conspiracy. As a general principle, the defendant’s confession of guilt is generally subsumed in the one-third guilty plea discount.
The final step is to ensure the overall sentence is one that is fair, just and balanced in all the circumstances of the offence and the defendant.
I am of the view that the ultimate sentence of 17 years and 10 months’ imprisonment is appropriate, and it is not out of proportion to the defendant’s overall criminality.
The final sentence I would impose on the defendant is one of 17 years 10 months’ imprisonment.