COURT: The defendant pleaded guilty to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, on 16 May this year before a magistrate, and he was committed to the Court of First Instance for sentence.
The 1st charge alleged that on 28 April 2022, at Room 819, King Lui House, King Lam Estate in Tseung Kwan O, he unlawfully trafficked in 665 grammes of ketamine narcotic and 0.18 grammes of cocaine narcotic. The 2nd charge alleged that on the same day, outside ground floor and podium of King Lui House, King Lam Estate, he unlawfully trafficked in 91.15 grammes of ketamine narcotic and 112.2 grammes of cocaine.
According to the Summary of Facts to which he agreed at the time of the plea, at about 9.30 pm on 28 April 2022, the police saw him carrying a green bag, wandering outside King Lui House, King Lam Estate in Tseung Kwan O. He met up with a male called Wan Chu-hin, and then the two of them entered Room 819 of King Lui House. The police then laid ambush outside the premises.
Later, at about 10.20 pm, that is about 50 minutes later, Wan opened the door and the grill of the premises and came out. Wan was intercepted by the police. The police then tried to open the door of the premises at Room 819. At this point, the defendant came to open the door. Upon seeing the police, he immediately closed the door. The police pushed the door open and saw the defendant standing right by the door, and another male known as Wong Tsz-kin standing outside the bathroom in the premises.
Upon search, the defendant was then found in possession of cash $866 and two mobile phones. Upon search of the premises, in the living room of the premises, the police found on a wooden table one green bag. That was the bag that was carried by the defendant prior to entering the premises. Inside the bag, they found a total of six transparent resealable plastic bags containing all the drugs particularised in the 1st charge, and three electronic scales. On a computer desk in the living room, the police also found 20 packs of empty transparent resealable plastic bags, more than half of which bore with “black club” markings. There was also a box of GLAD ziplock bags on the computer desk. Cash in the total sum of $40,200 was found on a shelf.
The defendant, Wan, and Wong were all arrested and cautioned for the offence of trafficking in dangerous drugs. The defendant, under caution, admitted that all the drugs belonged to him, and he bought them to resell to others.
Then the police continued to search the flat. At that time, one police officer looked out of the open kitchen window, and he saw a large quantity of transparent resealable plastic bags scattered on the podium and the ground floor of the building.
From the ground floor of the building, the police retrieved two transparent resealable plastic bags containing ketamine and cocaine respectively, and also one empty plastic container with lid. On the podium, the police retrieved a total of 157 transparent resealable plastic bags containing ketamine and cocaine respectively. The total sum of the drugs recovered from the podium and the ground floor of the building consisted of all the drugs particularised in the 2nd charge.
In addition, from the 153 transparent plastic bags of ketamine found on the podium, it was discovered that these plastic bags bore the same “black club” markings as those empty plastic bags seized from the premises.
In a subsequent video-recorded interview, the defendant gave some information in respect of the 1st charge. He said he came to know a person called “Ah Shing” in a bar about one or two months ago, and he was offered a job to earn quick money by Ah Shing. On the material day, on the instruction of Ah Shing, he collected some drugs from a public toilet in Mong Kok. He collected the green bag at about 7 pm that day, that is about two-and-a-half hours before he was seen entering the premises.
He said he had opened the green bag and saw the drugs inside, and he also saw the electronic scales inside. He was promised to have a reward of $5,000 after collecting the drugs and delivering the same to somebody. After the drugs were collected, he said he then took a taxi to the home of Wan to play games. And, as stated earlier, he was seen by the police at 9.30 pm on that day.
Coming back to his video-recorded interview. He said Mr Wan and Mr Wong were his secondary schoolmates. He went up to Mr Wan’s home together with Wan while Mr Wong waited for them outside Wan’s home. Having entered Wan’s home, he said he placed the green bag on the table. He did not touch the green bag until police entry. He said Wan and Wong had no knowledge of what was inside the green bag, and he told them it contained food.
He said the empty plastic bags including those with “black club” markings found inside the premises were to be used by him and Wan for packing earrings as they were running an online earring shop on Instagram.
According to the CCTV recording of King Lui House, Wong entered King Lui House at about 9.15 pm on that day, whereas Wan and the defendant entered King Lui House at about 9.25 pm. The defendant was carrying the green bag at the material time.
The estimated street value of all the drugs seized in both counts amounted to about $753,382.
The defendant now admits and accepts that at the material time he unlawfully trafficked in all the dangerous drugs seized in respect of Charge 1 and Charge 2.
The defendant was 23 years old at the time of the offences, and he is now 25 years of age. According to his antecedents statement, he was single and he studied up to Form 2. He was unemployed at the time of his arrest.
He has a criminal record for different offences ranging from criminal damage, acting as a member of triad society, to possession of dangerous drug. His last conviction was on 29 June 2021, that was about eight months before the present offences, for the offence of possession of dangerous drug. And for that matter, he was sentenced to the Drug Addiction Treatment Centre. He was discharged from the Hei Ling Chau Drug Addiction Treatment Centre on 1 December 2021, that is about four months before the present offences. At the time when he committed the present offences, he was still under supervision of the Commissioner for the Correctional Services Department.
In his mitigation, counsel Mr Chu Wai-kei informed this court that in fact after he was discharged from Hei Ling Chau Drug Addiction Treatment Centre, the defendant worked as a casual worker in a restaurant, delivering food for the restaurant, earning approximately $13,000 per month, until about one week before he was arrested for the present offences.
Counsel also submitted a letter prepared by the Hospital Authority, stating that the mother of the defendant was suffering from a number of diseases such as diabetes and hypertension, etc. Counsel informed this court that his mother and younger sister are in court to give him support.
Counsel urged this court to adopt a more lenient view, but said at the same time that there are aggravating features such as two types of drugs were involved. Also there was the presence of electronic scale and resealable plastic bags, showing that the defendant was more than a mere courier or storekeeper of the drugs. Counsel urged this court to take into account his guilty plea and give him the full one-third discount for his guilty plea.
In sentencing the defendant, I bear in mind the approach set out by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as modified by 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 stated that, “When sentencing two trafficking offences where different quantities of dangerous drugs were found in the accused’s possession on the same day but at different locations, the judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another. Such an approach more truly reflected the accused person’s culpability as the reality of the situation was that on the day of the charges the accused was in overall possession of the drugs found at the two locations. It was also an approach which ensured that the accused’s final sentence was not artificially inflated by separating out the drugs of the two charges as though the accused had been guilty of two quite separate offences and then imposing consecutive sentences.”
In this particular case, the defendant had trafficked in two types of dangerous drugs, namely, 756.15 grammes of ketamine narcotic and 112.38 grammes of cocaine narcotic. So the total quantity of narcotic is 868.53 grammes.
On the sentencing guideline, the starting point for trafficking in 756.15 grammes of ketamine narcotic would be about 13½ years’ imprisonment, and the starting point for trafficking in 112.38 grammes of cocaine narcotic would be about 9 years and 8 months’ imprisonment. To sentence the defendant on the individual approach would produce a starting point of 23 years and 2 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 would 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. However, ketamine made up a significant proportion of the total quantity of the drugs. In respect of the total quantity, more than 75 per cent of the drugs were ketamine. So I would adopt ketamine as the base drug instead of cocaine.
In determining the upward adjustment for the remaining cocaine narcotic, I will examine the overall starting point by checking the starting point for trafficking in 756.15 grammes of ketamine 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 13 years and 4 months’ imprisonment. If all the quantity of the drugs were cocaine, then the starting point would be over 20 years’ imprisonment.
Under the conversion test, treating all the drugs as cocaine will result in a starting point of 15 years and 3 months’ imprisonment. Treating all the drugs as ketamine will result in over 14 years’ starting point.
Under the ratio test, the starting point would be one of 14 years and 10 months’ imprisonment.
I bear in mind the role of the defendant, in particular the fact that he was more than a pure courier as admitted by counsel. In this case, a high quantity of resealable plastic bags were found including a high quantity of empty resealable plastic bags, some GLAD ziplock bags and also three electronic scales that can be used in the packaging and weighing of the drugs.
Taking into account his role and culpability, all the quantity of the drugs concerned and the amount of packets involved, I consider that an appropriate starting point after trial to be adopted for all the drugs in both counts should be one of 14½ years’ imprisonment.
From that starting point, it should be enhanced by a total of 9 months for the fact that two different kinds of drugs were involved, which means that it can cater for a wider market.
So the total starting point, after taking into account his role and culpability including his role of more than a mere courier, and that multiple kinds of drugs were involved, the total starting point would be one of 15 years and 3 months’ imprisonment. That is to add 9 months to 14½ years.
I also take into account the aggravating feature that he has a drug-related conviction previously. In June 2021, he was convicted of possession of dangerous drug and sentenced to the DATC. He was not discharged until only about four months before he committed the present offences. And, at the time of the offences, he was still under supervision of the Commissioner of Correctional Services Department.
It appears that the sentence imposed for the possession of dangerous drug failed to deter him from staying away from drugs. His engagement in drug has increased from engaging in possession to engaging in trafficking of dangerous drug, not to mention in the trafficking of two different types of dangerous drugs.
For that matter, I will increase the starting point by 3 months. So the notional sentence to be adopted after trial should be one of 15½ years’ imprisonment.
The defendant pleaded guilty to both charges at an early stage and he is entitled to a full one-third discount. But, other than that, I do not see anything in his personal background or in his family circumstances that would justify any useful or meaningful discount. As such, after the one-third discount, he is sentenced to a total of 10 years and 4 months’ imprisonment for both charges.
Adopting the principles stated in the case of Wan Lau Mei, I adopt 10 years and 4 months as the sentence to be imposed for each of Charge 1 and Charge 2.
So that is the sentence I impose for Charge 1, 10 years and 4 months’ imprisonment.
For Charge 2, 10 years and 4 months’ imprisonment, to be served concurrently with the sentence in Charge 1.
That is the sentence I impose on the defendant.