COURT: The accused pleaded guilty to one charge of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, before a magistrate on 25 April this year.
According to the particulars of the offence, it is alleged that on 20 May 2022, at Room 727 of the Hyatt Regency Hotel in Sha Tin, he unlawfully trafficked in 174.13 grammes of cocaine narcotic, 135.96 grammes of ketamine narcotic and 87.3 grammes of a solid containing traces of tetrahydrocannabinol, which is known as ‘THC’ in brief.
According to the Summary of Facts to which the accused admitted at the time of his plea, in the evening of 20 May 2022, customs officers intercepted him as he walked out of Room 727 at about 8.30 pm, and the room card to Room 727 was found on his person. He was escorted back to the room for a search conducted under a search warrant.
During the search, all the drugs particularised in the charge, together with some drug packing paraphernalia, were found inside the room. To summarise, there were a total of 237 plastic bags of cocaine, 110 plastic bags of ketamine, six packets of a solid containing the traces of ‘THC’, 16 packets that contained clozapine, which is a Part I poison. And then there were also a large number of empty transparent resealable plastic bags, sealing machine, electronic scales, plastic containers, spoons and scissors. Cash of $10,200 was also found in a black handbag in the hotel room.
Upon his arrest, the accused stated under caution that the 237 plastic bags of items found in the room, in the right drawer, they were ‘Coke’, that is, they were cocaine. In respect of the other drugs found in the right drawer and also found on the table, they were ‘B’, that is, ketamine. In respect of the solid containing the ‘THC’ found on the table, he said they were ‘Cannabis Cookies’. And in respect of the 16 tablets of Part I poison found on the table, he said they were ‘5 Jai’.
He said the ‘Coke’ and the ‘B’, that is, the cocaine and the ketamine, were given to him by a person called “Chan Yiu”, but he was unable to locate Chan anymore. He said all the packing tools found in the hotel room belonged to him. The plastic bags found in the room and all the tools found, they were used for packing the ‘Coke’ and the ‘B’ for sale to others. After they were packed, the ‘Coke’ and ‘Bee’, they would be transported away by cars, but he did not have the car details. He admitted that he received remuneration of $1,000 per 24 grammes of drugs, and that he put his remuneration of over $10,000 inside the black handbag that was found by the customs officers in the hotel room.
Upon investigation, it was found that the accused checked in the hotel room on 16 May, that is, about four days before he was intercepted.
The estimated street value of all the drugs found in the room was about HK$312,222.70.
The accused now accepts and admits that at the material time, he knew the nature of all the drugs found in the room, and he possessed them for the purposes of unlawful trafficking in the room.
The accused has a clear criminal record. He is now 25 years of age and has received education up to Form 2 level. Before his arrest he has worked as a casual worker, earning about $11,000 a month. He is single, and he resided with his mother and two elder brothers before his arrest.
During mitigation, counsel for the accused, Mr Sezen Chong, submitted that the accused committed the present offence because of financial difficulties. Counsel informed this court that the accused’s father was in gambling debt, and because of the debt chasing, as a result the family broke down, and the father deserted the family; that the mother of the accused had a stroke, and later she was diagnosed with cancer. So the accused foolishly committed the offence to ease the family financial problem.
The accused himself and also his mother had also submitted letters to this court pleading for leniency. They also quoted the family circumstances as submitted by counsel in the mitigation.
Counsel urged this court to take into account the guilty plea of the accused, and the fact that his role was at the lower end of the hierarchy, that means he only acted as a courier and a storekeeper for the hierarchy, his young age and his personal circumstances, and urged this court to pass a lenient sentence on him.
In sentencing the accused, I bear in mind the approach set down by the Court of Appeal in the case of
HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as clarified in the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
In this particular case, the total quantity of narcotics being involved is 174.13 grammes of cocaine and 135.96 grammes of ketamine. In respect of the traces of ‘THC’ found in the 87.3 grammes of solid, I accept that they are of minimal quantity and they would not have any effect on the overall sentence to be served by the accused. Therefore, as a result, I would ignore the ‘THC’ completely in my calculation of the ultimate sentence.
I also take into account the whole circumstances of the case, the background of the accused and the mitigation put forward by counsel on his behalf. Now, in this case, the accused had trafficked in two types of drugs, namely, cocaine and ketamine. For sentencing involving trafficking in cocaine, it has been held that the guidelines laid down for heroin should be applied. So, for trafficking between 50 to 200 grammes of cocaine, a sentence of 8 to 12 years’ imprisonment should be imposed after trial, according to the tariff. On the other hand, for trafficking between 50 to 300 grammes of ketamine, the sentence should be 6 to 9 years’ imprisonment after trial.
So just on a purely arithmetic basis, according to the sentencing guidelines, for 174.13 grammes of cocaine narcotic, the starting point would be 11 years and 3 months’ imprisonment. For the sentencing guidelines of ketamine, the arithmetic starting point for 135.96 grammes of ketamine would be 7 years’ imprisonment.
To sentence the accused on the individual approach would produce a sentence of 18 years and 3 months’ imprisonment which would be too high and does not properly reflect the justice of the case. So I accept counsel’s submission that to achieve a reasonable and realistic sentence, I should adopt the combined approach which involves upward adjustment from the starting point of the base drug.
In the present case, cocaine is the more serious drug in terms of its potency and the sentencing tariff. So I will use cocaine as the base drug in my calculation. As stated above, the starting point for trafficking in 174.30 grammes of cocaine narcotic is 11 years and 3 months’ imprisonment. In determining the upward adjustment for the remaining 135.96 grammes of ketamine narcotic, I examine the overall starting point by checking it against the absurdity test, the conversion test and the ratio test.
Under the absurdity test, the overall starting point would be about 13 years and 7 months’ imprisonment. Under the conversion test, the overall starting point based on the cocaine sentencing guideline is about 12 years and 2 months’ imprisonment. The overall starting point based on the ratio test is about 11 years and 7 months’ imprisonment.
The accused in this case is not merely a courier or a storekeeper as submitted by counsel. Indeed, he was also involved in the packaging of the drugs in the hotel room. He gave that admission under caution, that the packing tools found in the room all belonged to him and that, as he said, he received remuneration of $1,000 per every 24 grammes of drugs. Counsel clarified that those 24 grammes of drugs referring to the drugs being packed and delivered.
It is my view that his role is slightly higher than that of a mere courier and storekeeper because of his involvement in the packaging of the drugs in the hotel room. As one can see, a huge number of packets were found and also a large number of empty packets, yet to be used, were found in the room.
Having taken into account the facts admitted, all the circumstances and the fact that the accused was also involved in the packaging of the drugs in addition to being a courier and a storekeeper, I consider that, bearing in mind his role and culpability, the overall starting point after trial should be one of 11 years and 9 months’ imprisonment.
In this particular case, two kinds of drugs were seized. I would just ignore the ‘THC’ for this purpose in favour of the accused. Even though the cocaine and the ketamine were separately packed, still I would have regard to the two possible aggravating features, namely, firstly, the ability of the trafficker to cater to a wider market and secondly, the effect on users of combination of the dangerous drugs. And on this basis, I further enhance the starting point by 3 months.
Therefore, the notional starting point after trial is one of 12 years’ imprisonment. The accused pleaded guilty at the earliest opportunity and he is entitled to the full one-third discount of his sentence. However, in respect of his clear record, his age and also the fact that he committed the offence because of family financial problems, all these matters cannot be counted as any mitigating factors as clearly set out by the authorities. There being no other mitigating factors, one-third is the extent of discount that the accused is entitled to.
So the ultimate overall sentence is one of 8 years’ imprisonment, and that is the sentence that I impose, 8 years.