COURT: On 18 July 2024, the defendant pleaded guilty to two charges of trafficking in dangerous drugs. In respect of the 1st charge, it is alleged that on the 11th day of January 2023, outside a hotel room in the Panda hotel in Tsuen Wan, he unlawfully trafficked in 28.57 grammes of cocaine narcotic and 16.87 grammes of ketamine narcotic. According to the particulars of the 2nd charge, on the same day, inside that particular hotel room, he unlawfully trafficked in 944.36 grammes of cocaine narcotic and 943.95 grammes of ketamine narcotic.
The Summary of Facts in this case stated that on the 11th day of January 2023, the defendant was intercepted by the police at about 5.30 pm outside a hotel room in Panda Hotel in Tsuen Wan. At that time, he was carrying a black rucksack. He confirmed that there was nobody else inside the room and he himself was in possession of the key card of that room.
Upon search, the police found a total of 280 packets of dangerous drug as particularised in the 1st charge on his person. He also had cash of $3,750 and two mobile phones. Then he was taken back into the hotel room for a search, and all the drugs particularised in the 2nd charge were found in the hotel room. In addition, there were a large quantity of packaging and weighing paraphernalia including sealer, resealable plastic bags, spoons, pliers, scissors, electronic scales and a screwdriver.
Upon his arrest the defendant said that, “The stuffs are mine for earning a bit of money only”.
In the subsequent video-recorded interview he said that the “stuffs” were drugs. He said he started to do the drug deals about one to two months ago and he was responsible for packing the drugs. He had been living alone in the hotel room since 1 December 2022 (that is, about 40 days before he was arrested). He rented the room himself at monthly rental of $15,000. He said only he himself had the key card of the room and no one else had ever attended the room. He said all the drugs found in the room and also in the rucksack belonged to him, and the other packaging paraphernalia found in the room were used to pack the drugs. He also said that he did not have the habit of taking drugs himself.
The estimated street value of all the drugs seized in this case were over 1.7 million if the cocaine was in powder form, and over 2.2 million if the cocaine was in crack form.
He admits and accepts that he was knowingly in possession of all the dangerous drugs seized in this case for the purpose of unlawful trafficking.
The defendant is now 32 years of age. He has received up to Form 3 education. After school he started to work as a kitchen worker until 2020, and then he worked as a part-time worker at markets. He has no previous criminal conviction.
In mitigation, counsel Mr Victor Ho asked this court to take into account the fact that he was not the mastermind or the organiser. But counsel also rightly admitted that he was indeed a direct trafficker himself.
That said, his role was also more than a storekeeper or a courier because he himself was involved in the weighing and packing of the drugs. According to his own admission, he was involved in the drug packaging and trafficking activities for over a month. Counsel also rightly admitted that another aggravating feature in this case is there were a total of two kinds of drugs involved.
A number of mitigation letters were submitted including letters from the defendant himself, his family, his former secondary school principal, school teacher and previous employer, and they all pleaded for leniency on his behalf.
In sentencing the defendant, I bear in mind the approach laid out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
I also bear in mind what the Court of Appeal said in the case of HKSAR v Wan Lau Mei [2014] 4 HKC 75. In that case, the Court of Appeal said that when sentencing two trafficking offences where different quantities of dangerous drugs were found in the defendant’s possession on the same day but at different locations, the judge should regard the two offences as representing one location of possession of the total amount of the drugs and imposed sentences on both offences for that total, making the sentences concurring with one another. Such an approach more truly reflected the defendant’s culpability as the reality of the situation was that on the day of the charges he was in overall possession of the drugs found at the two locations. It was also an approach which ensured that his final sentence was not artificially inflated by separating out the drugs of the two charges as though he had been guilty of two separate offences and then imposed consecutive sentences.
Now coming back to the present case. The defendant had trafficked in two types of dangerous drugs, namely 960.82 grammes of ketamine narcotic and 972.93 grammes of cocaine narcotic in total. So the total quantity of narcotic is 1,933.75 grammes.
On the sentencing guideline, the starting point for trafficking in 960.82 grammes of ketamine narcotic would be about 13 years and 9 months’ imprisonment, and the starting point for trafficking in 972.93 grammes of cocaine narcotic would be about 21 years and 10 months’ imprisonment.
To sentence the defendant on the individual approach would produce a starting point of around 35 years and 7 months’ imprisonment which would be too high and does not properly reflect the justice of the case.
So, to achieve a reasonable and realistic sentence, I will 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 sentencing tariff. So I will adopt cocaine as the base drug.
In determining the upward adjustment for the remaining ketamine narcotic, I will examine the overall starting point by checking the starting point for trafficking in 972.93 grammes of cocaine narcotic against the absurdity test, the conversion test and the ratio test.
According to the absurdity test, if all the drugs seized were ketamine, then the starting point would be about 17 years 8 months’ imprisonment. If all the quantity of the drugs were cocaine, then the starting point would be around 23 and 9 months’ imprisonment.
Under the conversion test, treating all the drugs as cocaine would result in a starting point of 23 years 1 month, and treating all the drugs as ketamine would result in 22 years and 1 month’s starting point.
Under the ratio test, the starting point would be one of 20 years 8 months’ imprisonment.
I bear in mind the role of the defendant, in particular the fact that he was more than a pure courier or a pure storekeeper as admitted by counsel. In this case, a large quantity of resealable plastic bags and also the packaging and weighing paraphernalia were found inside the hotel room. On his own admission, he had been engaged in the trafficking activity in that room since about early December 2022, that is, for more than 40 days. Also two kinds of drugs were found, and that means he was able to cater for a wider market.
So, taking into account his role and culpability including the fact that he had been engaged in the trafficking, packing and the weighing of the drugs for around 40 days, and the fact that two different types of drugs were involved, I consider that the appropriate starting point after trial should be one of 23 years’ imprisonment.
He pleaded guilty to both charges at an early stage, and he is entitled to a full one-third discount. Other than that, I do not see anything in his personal circumstances as useful or meaningful mitigation. So after the full one-third discount, he is sentenced to a total of 15 years and 4 months’ imprisonment for both charges.
Adopting the principles stated in the case of Wan Lau Mei, I will sentence him to 15 years and 4 months’ imprisonment for each of Charge 1 and Charge 2 and order the sentences to run totally concurrent to each other.