Introduction
The defendant pleaded guilty to two charges at the Magistrates Court and is committed to this court for sentence.
The 1st charge is trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the dangerous drugs concerned being 359.4 grammes of a solid containing 308.5 grammes offluorodeschloroketamine and 17 tablets containing 2.69 grammes of 3,4-methylenedioxymethamphetamine (abbreviated as MDMA).
The 2nd charge is possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance, the dangerous drug concerned being 0.64 grammes of a cannabis in herbal form.
Summary of Facts
The defendant has agreed to the following:
The defendant was in charge of the premises on DD106, Lot 509 and 515RP, Kam Po Road, Pat Heung (“the premises”) which consisted of a storge room, an office and a barbecue site with a kitchen.
At about 1730 hours on 23 July 2019, a group of police officers arrived at the premises for investigation. The defendant opened the storge room with his key and let the police officers to conduct a search there. Upon entry, the police officers found in the storge room the dangerous drugs, which were the subject matter of the 1st charge, in six transparent resealable plastic bags and one plastic bag as well as a quantity of empty transparent resealable plastic bags of different sizes, two electronic scales, one plastic cup and spoons. Besides, in the office, the police officers found a grinder containing the herbal cannabis which was the subject matter of the 2nd charge.
In the defendant’s mobile phones, there were numerous photographs depicting suspected dangerous drugs being weighed on electronic scale as well as some suspicious WhatsApp messages. Under caution, the defendant remained silent concerning the findings from the storge room and said that the cannabis was for his own consumption. In a subsequent video-recorded interview, the defendant said that he managed the premises as an employee and he did not know the boss. He claimed that he did not know anything about the dangerous drugs found in the storge room. However, he admitted that he had purchased the cannabis for HK$500 for consumption.
The defendant now admits that he knowingly possessed the dangerous drugs, the subject matter of the 1st charge, for trafficking and that he possessed the herbal cannabis, the subject of the 2nd charge, for his consumption.
The Defendant’s Antecedent
The defendant is now aged 43. He was educated up to Form 6 in England. He is divorced with a son aged 10 who is now living in Shenzhen with his former wife. The defendant’s father is a retired civil servant and his mother is a housewife. The defendant has three siblings. At the time of the offence, the defendant was living with his younger sister and younger brother in Tin Shui Wai.
According to Mr Woon, the defendant had been a drug addict for 26 years and he mainly abused herbal cannabis and occasionally ketamine. The defendant had two court appearances before. The first one was in 1998, which was about one conviction of possession of a dangerous drug. And the second one was in 2001, which was about two convictions of wounding with intent. For avoidance of doubt, I should say that I would not treat the defendant’s records as aggravating factors in the present case.
Mitigation
Mr Woon stresses that the defendant has made a timely plea. As to the reason for the present offence, Mr Woon says that at the time, the defendant was hoping to negotiate with his ex-wife for a partial custody of the son. In so doing, the defendant foolishly resorted to earning quick money by trafficking with a view to impress his ex-father-in-law.
Now that the defendant’s ex-wife had been informed of his arrest, the defendant’s chance of having joint custody of his son has been jeopardised.
Sentence
The Court of Appeal has said that the starting point for the offence of trafficking is to be determined primarily by reference to the quantity of the dangerous drug concerned, that the mathematical starting point should not be departed with without reasons, and the fact that the accused was a courier or a storekeeper is not a sufficient reason for departing from the mathematical starting point (see HKSAR v Leung Kwai Ping and Anor (No. 2) and HKSAR v Conde Nassou).
In the present case, the 1st charge is about two types of dangerous drugs. As regard the dangerous drug fluorodeschloroketamine, there is the expert opinion of Dr Mak Wing-lai Tony that it is a structure analogue of ketamine. Mr Mak opines that its potency is similar to, or slightly higher than ketamine with slower onset of actions, and its physical, psychological and clinical effects are comparable to that of ketamine.
Dr Mak’s aforesaid opinion has been accepted in two decisions of the Court Of First Instance (see HKSAR v Chung Ka Yan by A Pang J and HKSAR v So Wan Cheung by myself). The parties agree that for sentencing purpose, fluorodeschloroketamine shall equate with ketamine, and this is what I am going to do.
The 1st charge is about two different types of dangerous drug with different sentencing tariffs. Based on SJ v Hii Siew Cheng, trafficking in 300 to 600 grammes of ketamine attracts a starting point of 9 to 12 years’ imprisonment, and trafficking in 1 to 10 grammes of MDMA attracts a starting point of 2 to 4 years’ imprisonment. However, since the quantity of fluorodeschloroketamine narcotic (308.5 grammes) is much higher than that of MDMA (2.69 grammes), even if one were to apply the three tests as stated in HKSAR v Chan Yuk Leong, namely, the “absurdity test”, the “conversion test” and the “ratio test”, the results would all be around 9 years and 1 month imprisonment. This is what I adopt as the starting point for Charge 1, as I do not see any good reasons not to do so.
I have regard to all that can be said on behalf of the defendant in mitigation as advanced by Mr Woon both in his written and oral submissions. Whilst I have every sympathy for the defendant, it is well-established that family circumstances are not factors which may reduce the sentence for a serious offence of trafficking (HKSAR v Lee Man Wai). In my view, the only significant mitigating factor which could reduce his sentence is his timely plea at committal, for which he is entitled to the full one-third discount. Therefore, the defendant is sentenced to an imprisonment term of 6 years and 20 days for the 1st charge.
As regards the 2nd charge, having heard Mr Woon, I impose a financial penalty of HK$600. That amount has already taken into account of the defendant’s plea. The defendant has 7 days to pay.