COURT: D1 and D2, you both pleaded guilty on the 4 July 2024 before a magistrate at the Eastern Magistracy. As a result of your pleas of guilty you have been committed here to the Court of First Instance for sentence.
As for D1, you pleaded guilty to four charges, being Charges 1, 2 and 3 of trafficking in dangerous drugs and Charge 4 to conspiracy to traffic in a dangerous drug.
D2, you pleaded guilty to two charges, that is Charges 1 and 2 of trafficking in dangerous drugs and those two charges you were jointly charged with D1.
The offences in Charges 1, 2 and 3 were committed on the 1 August 2022. The offence in Charge 4 was committed between January 2022 and 1 August 2022.
In Charge 1, D1 and D2, you admitted that on the 3rd floor of Fung Tak Carpark, No. 111 Fung Tak Road, Diamond Hill, Kowloon, I shall refer to that as “the Carpark”, together with other persons unknown unlawfully trafficked in 90.65 grammes of a solid containing 75.63 grammes of ketamine.
In Charge 2, D1, you admitted that inside of a private car, namely a Toyota Noah, registration mark XH 4210, together with other persons unlawfully trafficked in 68.77 kilogrammes of a solid containing 56.17 kilogrammes of cocaine, otherwise 56,170 grammes of cocaine.
D2, you admitted that you trafficked in the amount of drugs found in the Noah, which you believed to be ketamine, but you had no knowledge the drugs were cocaine.
After consideration of the evidence and submissions I found that D2 mistakenly believed the drugs were ketamine and not cocaine on the balance of probabilities.
In Charge 3, D1, you admitted that at Room 1106, 11th floor, Suet Fung House, Fung Tak Estate, Diamond Hill, Kowloon, which I will refer to as “the Flat”, together with other persons unknown unlawfully trafficked in 2.64 grammes of a solid containing 2.18 grammes of cocaine.
In Charge 4, D1, you admitted that between a day unknown in January 2022 and 1 August 2022, both dates inclusive, in Hong Kong, you conspired, together with other persons unknown to unlawfully traffic in ketamine.
The Facts of this case
The Summary of Facts dated the 13 June 2024, in support of the charges, were admitted by the two defendants as correct and accurate. The facts are as follows:
In Charge 1, in the morning of the 1 August 2022 Narcotic Bureau police officers mounted an anti-narcotics operation at the Carpark and put the Noah, which was parked at the 3rd floor, under observation. The Noah was rented from a car rental company on the 29 July 2022 for one month, with both D1 and D2’s numbers left as the contact numbers. At about 12.48 pm, D1 and D2 arrived at the Carpark and approached the Noah. At that time D1 was carrying a red plastic bag and D2 was carrying a red-white-blue plastic bag. D1 and D2 then got into the Noah.
At that time the operation turned overt, and the police officers rushed to intercept the Noah. D1 was sitting at the driver’s seat, with both hands holding the red plastic bag on his thighs. Upon conducting a search on the bag, dangerous drugs which was subsequently certified to be a total of 45.23 grammes of ketamine were found in 86 plastic bags, referred to as E1, E2, E3 and E4.
D1 was arrested for an offence of trafficking dangerous drugs. Under caution he said, “I’m about to bring this bag of ketamine to somebody intending to earn $1,000-odd.” D1 further said that he brought the ketamine from his home address, giving the address of the Flat.
At about 12.55 pm, upon conducting a search on the red-white-blue plastic bag carried by D2, cash of $22,900 and 30.4 grammes of ketamine were found contained inside 56 plastic bags, that is E5 contained 24 plastic bags and E6 contained 30 plastic bags.
D2 was arrested for the offence of trafficking in dangerous drugs and under caution she said, “Ah sir, I also want to earn money, so I helped somebody to deliver these ketamine.” Those are the facts for Charge 1.
I turn now to Charge 2. At about 12.58 pm, upon conducting a search on the Noah, a total of 56.17 kilogrammes of cocaine were found in its rear compartment in a foam box and two suitcases. 17.94 kilogrammes of solid, containing 14.6 kilogrammes of cocaine, was found contained in 18 plastic bags in a foam box, E7.
A purple and red suitcase which contained 17 and 34 bags of cocaine, plastic bags of cocaine, and 16.94 kilogrammes of a solid and 13.84 kilogrammes of cocaine, E8, and 33.89 kilogrammes of solid, and 27.3 kilogrammes of cocaine, E9, were found respectively.
D1 and D2 were further arrested for an offence of trafficking in dangerous drugs and under caution D1 said, “The drugs in the car were received by me a few days ago. I will receive 1,500 after each delivery.” D2 said, in Punti, “Ah sir, these drugs are those which my husband and I intended to deliver later.”
Turning now to Charge 3. At about 10 pm on the same date D1 was escorted back to the Flat for a house search. Found in a safe in D1’s bedroom were the drugs, in Charge 3, and a large number of empty transparent resealable plastic bags. A sealing machine was found near the end of the bed.
D1 was further arrested for an offence of trafficking in dangerous drugs. Under caution D1 said, “Ah sir, that box
is the remaining portion of drugs after delivery which I have just mentioned. The sealing machine is for packaging the drugs.”
I turn now to the video-recorded interviews. In respect of D1’s video-recorded interviews, two VRIs were conducted with D1 on the 1 August 2022 and he said, inter alia, the following under caution:
(1) Regarding his admission made about the ketamine in Charge 1, that is E1 to E4, he would receive about $1,000 after he delivered them to someone arranged by a person called Ah Hong;
(2) Ah Hong was a person who patronised the nightclub he had previously worked at;
(3) Ah Hong got him involved in trafficking in dangerous drugs. He distributed ketamine on a daily basis and had helped Ah Hong repackage the drugs into smaller drugs for delivery after he received them from persons arranged by Ah Hong.
In relation to the drugs found in the red plastic bag, that is E1 to E4, he said that the ketamine found on his person, in Charge 1, he received about 240 grammes of ketamine about one week ago and repackaged them into more than 300 smaller bags with the electronic scale. On instructions from Ah Hong, he delivered the specified amounts to persons, of about 10 to 20 bags of ketamine every day.
He started helping Ah Hong from early 2022. He received the same amount of drugs about two to three times per month, then packaged them into 350 smaller bags using the electronic scale and sealing machine. He then distributed about 20 to 40 packets every day. This admission amounts to his involvement and forms the facts of Charge 4. He would then receive a total of $30,000 per month. That is about 1,000 per day after all the drugs were distributed. He was about to bring E1 to E4 to Mongkok before he was arrested and intercepted.
Regarding the cocaine found in the rear compartment of the Noah, about a week before D1 was arrested Ah Hong had asked him to collect a vehicle, registration VS 3697, a white Toyota Sienta, which belonged to his friend who was infected with COVID, from Yuen Long, and find a place to park it. Ah Hong promised to pay D1 for his service. D1 then collected the Sienta and parked it at the estate where he lived.
The following day Ah Hong asked D1 to rent a car and move the things from the Sienta to the rented car. D1 rented the Noah. He parked both vehicles next to each other at the
carpark at Fung Tak Estate. When D1 opened the rear compartment of the Sienta he saw many bags of a white substance which he believed to be drugs in the red suitcase. Although he did not open the foam box or purple suitcase, he believed they also contained drugs. D1 later drove the Sienta to another carpark as instructed by Ah Hong. Ah Hong then asked him to deliver a specified amount of drugs to different places per day, and promised to pay him $1,000 for distributing each bag. After transferring all the drugs at the rear compartment of the Noah D1 helped Ah Hong deliver the cocaine on two occasions.
In late July 2022, D1 took eight bags of drugs out to four customers, on the second time four to five bags of the drugs to three or four customers. Those drugs were taken from the red suitcase. He said D2 was with him on the second occasion and asked him not to do the job as it was dangerous.
The cocaine found in the safe in D1’s bedroom, E10. D1 said the cocaine found in the safe in his bedroom was the remaining portion of drugs he received he had previously prepared for a customer. A customer had not contacted him, so he placed it in his safe since late 2021. The empty resealable transparent bags were for carrying the drugs. The sealing machine was for sealing the bag of drugs after they were repackaged. D1 said all the tools were provided by Ah Hong.
He lived with his ex-wife, three children, and his mother. D2 was his girlfriend, and unrelated to the matter. D1 said he had not yet received any reward from the trafficking activity.
I turn now to D2’s VRI on the 1 August 2022. She said, inter alia, the following under caution in respect to the charge. Firstly D1 was her boyfriend, but she referred to him as her husband at the scene. D1 was her supervisor at the nightclub she had worked at, and she had known him for about six years. D1 gave E5 and E6 to her on or about the 25th or 26 July 2022. D1 told her they were ketamine and told her to repackage them. She took the drugs back to her home in Tin Shui Wai to do so. Each bag inside E5 and E6 weighed about 0.64 grammes.
On the 1 August 2022 D1 told her to bring the drugs to meet him at Fung Tak Estate carpark. At that time they were still waiting for instructions about where to deliver the drugs. Re Charge 2, the drugs in the Noah, she said Ah Hong had asked D1 to help him drive the Sienta. She saw the Sienta at Fung Tak Estate on or about 29 July 2022. When D1 and she opened the rear compartment, she saw more than 60 bags of ketamine. D2 and D1 moved the bags from the Sienta to the Noah and were waiting for further instructions from Ah Hong. D1 and D2 had not yet received any reward.
CCTV footage retrieved from Fung Tak Estate carpark between the 29th and 30 July 2022 revealed, inter alia, that D1 and D2 alighted from the Sienta on the 29 July 2022 at about 1.40 pm. On the 30 July 2022, the Noah was parked next to the Sienta and D1 and D2 alighted from the Noah and moved some items from the rear compartment of the Sienta to that of the Noah. D1 and D2 got into the Noah and drove it to a parking lot on the 3rd floor. D1 and D2 then walked back to the Sienta and drove it away.
Examination of mobile phones
The examination of the mobile phones of D1 and D2’s phones revealed three photos of dangerous drugs, about the trafficking activity, and between D1 and D2 about the trafficking activity with a photo of weighing the drugs between the 20 July and the 1 August 2022.
DNA examination
D1’s DNA was found on some of the drug packing of the cocaine found in the Noah. D2’s DNA was found on some of the drug packing of the ketamine found in the red-white-blue bag. The estimated street value of the drugs, that is for Charge 1, that is for all the drugs, E1 to E6, that is 90.65 grammes of ketamine was $55,659, and for E7 to E9, that is 68,777-odd kilogrammes of cocaine was $59,350,788 in powder, and if in crack cocaine $111,067,814. That is Charge 2.
D1 accepts and admits at the material time he conspired with other persons unknown to unlawfully traffic in dangerous drugs, namely ketamine, in Charge 4.
The Background and Mitigation
Ms Cannise Chan, counsel, represents D1. She has written full written submissions, one in a mitigation and then another in a supplemental mitigation.
D1 is now 62 years of age, born in May 1962. He has a clear record. He lived with his mother and three children in a self-owned public housing unit. He had two previous marriages, of which he has four children, aged 29 to 8 year’s old. He has a good relationship with his second wife, who he divorced in 2019, and she would often come over to stay at the Flat as his 8 years old daughter lives with him.
At the time of arrest D1 and D2 were romantically involved. They were originally co-workers in the karaoke restaurant
before COVID caused it to close down in 2021. D1 then became unemployed. D1 and D2 had a baby boy in March 2022. Prior to his arrest, whilst a manager at the karaoke restaurant, he was earning $20,000 per month. As a result of the club closing down when COVID hit the city he became unemployed.
As stated in his interview under caution D1 met Ah Hong in the club. Then in around late 2021 Ah Hong knew D1 was jobless and needed money because D2, his girlfriend, was pregnant. Ah Hong asked D1 to help him deliver dangerous drugs to buyer who used to frequent the club. Lured by the idea of easy money D1 agreed. The drug delivery, then, was on a casual basis only. The drugs, in Charge 3, was part of the drugs the buyer did not pick up in late 2021.
In January 2022, Ah Hong lured D1 to become more involved in trafficking. He offered D1 a daily wage of $1,000 if D1 promised to deliver the drugs daily, which meant a total of $30,000 per month. As D1’s baby was due in February 2022 he agreed to take delivery of 240 grammes of ketamine two to three times per month. After repackaging the drugs he delivered them on a daily basis. The drugs, in Charge 1, were part of these drugs.
As for the drugs in Charge 2, he initially did not know that the Sienta had drugs in the boot, but as the reward was higher than expected he became suspicious. He turned a blind eye for the monetary award. When he saw the quantity of drugs he told Ah Hong he was scared, but he was told by Ah Hong he was at the point of no return. D1 felt he had no choice but to carry on.
D1 has contributed to Father Wotherspoon’s Voice for Prisoners website by writing a letter in Chinese, and translated into English for publication in February 2025. The said letter in mitigation from Father Wotherspoon, together with his enclosures, has been produced. D1 asked this court to exercise its discretion in D1’s favour after assessing the nature and scope of his contribution in the above, and the trafficking campaign, so as to warrant a discount.
Ms Chan has referred to a case of HKSAR v Castillo Caicedo Teresa, CACC 212/2017, where the Court of Appeal made it clear in paragraph 44 as follows:
“As the sentencing principles now stand, it is not automatic for the defendant’s participation in Father Wotherspoon’s campaign will result in a ‘token discount’ of up to 3 months as provided in Kilima Abubakar Abbas. As stated by this court in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, it needs to be assessed ‘realistically and with common sense’ as to whether the defendant has made a ‘meaningful contribution’ to the campaign. However, this needs to be further assessed by the recent observations of this court in HKSAR v Cherop Caroline, unreported, CACC 321/2018.”
This judgment was the 2 August 2021. Cherop Caroline is now reported in [2021] in 3 HKLRD 904. The observations by the Court of Appeal that whilst a token discount may still be given for assistance in the campaign judges should not rely on hearsay, anecdote, and mere assertions of usefulness but must look at the letters properly adduced that had been written by the defendant or applicant, and consider their substance, as well as when and how they had been written if they were properly to act on them in the exercise of their discretion.
The report also there referred to Kilima Abubakar Abbas [2018] 5 HKLRD 88.
In a letter written by D1, which he submitted, D1 gives his background and his working history. Despite working in the nightclub industry for over 20 years he said he did not smoke, drink, gamble or take drugs. He had never committed an offence. The reason he committed the offence was because he was unemployed during COVID. As a result of economic hardship, this led to his involvement in drug trafficking.
The courts have, on numerous occasions, heard these very same reasons by other defendants for committing this type of trafficking offence. Sadly, and unfortunately, the pandemic was a time when traffickers targeted these people facing economic hardships. The letter is similar to letters these courts receive from defendants in these cases. The fact that this letter is posted by Father Wotherspoon does not, in my view, warrant a defendant any further discount. In addition, there are other defendants in the same position as D1 and, as stated by the court at paragraph 31, it must be wondered why other prisoners who were not afforded such an advantage in a system of Father Wotherspoon’s campaign should be deprived of this advantage.
I would also add that I place no weight on the letter written by D1 in Father Wotherspoon’s campaign as it is a distortion of the facts. The letter states that D1’s only involvement in trafficking was on the day when he was arrested, and his involvement was only because he assisted a customer to move a car for payment of $1,000. D1 was only returning to the car to collect his wife’s Octopus card, which she had left in the car, and unluckily for him the huge amount of drugs were in the car. This is a clear misrepresentation of the facts as D1 had already been involved in trafficking drugs for about seven months prior to the police arresting him.
Moreover, he had already delivered part of the drugs found in the car. I am not aware if D1 was assisted in writing this letter, by those involved in this campaign, but they are clearly contrary to the case admitted by D1. For all of the above reasons I do not consider D1’s participation by posting this letter on Father Wotherspoon’s campaign to be a factor that warrants any further discount.
D1, through his counsel, has submitted a mitigating letter to this court, which the court has taken into account, to which he is truly remorseful for his misdeeds. He deeply regrets his involvement at an age of 62, a person of clear record, being involved for the first time in such serious offences he says has ruined his life. D1 has converted to Christianity whilst in remand. He obtained 33 certificates in Bible studies, enrolled in a distant learning course in theology, of which his ex-wife footed the bill for the courses in support of D1. D1 aspires to become a pastor in the future. It is his intention to salvage lost souls like him and help them see hope and a bright future again.
D1’s role was that he was responsible for receiving and repackaging of drugs and delivering of the same.
D2’s Mitigation and Background
D2 is 28 years of age and of clear record. She was brought up by her grandparents in Hong Kong. She was educated to Form 6 and has a diploma in hospitality and a degree in service management. Despite her qualifications she, nevertheless, found difficulties in finding a job and found a job at a bar as a waitress when she was 19 years old. At the time D1 was the manager and she met him there. D2 began a relationship with D1, who was 35 years her senior. D2 stated at the time they started their relationship D1 deceived her that he was in the process of getting a divorce when she was pregnant with D1’s son. D1’s wife told her the marriage was still very much alive, and she would keep calling D2.
D1 promised he would end the marriage. After giving birth in March 2022, D2 became emotionally unstable. At the time of D2’s arrest her son was five months old. About one month after D2’s arrest her father passed away from liver cancer. D2’s son is being cared for by her grandmother and mother, who are living together. She is grateful to the social workers for making arrangements for her baby to spend time with her whilst in remand, a programme which is permitted by the Correctional Services Department. She is grateful and thankful as she was permitted to spend seven days with her son during her remand at Lo Wu.
While hesitant about D1’s motives in getting her involved in his illicit activities, D2 says she knowingly committed the offences, which was the biggest mistake of her life. I have received six letters written by D2, her grandmother, two from the social worker, her mother and from Father John Wotherspoon. They all speak highly of D2 as a good person and someone who genuinely regrets the commission of her crimes. It was due to her dedication and love to D1, and the future of her new born son, that she became involved in these crimes.
At the time it was quick easy money and being young and naïve, she thought that money meant everything. D2 knows she made a huge mistake in life, and with the assistance of her newfound faith in God and enrolling in courses, together with the assistance from the visiting social workers, she hopes to avail her experience and teach her son and others not to choose the wrong path, as did she.
I have received several certificates and documents evidencing her completion of Biblical courses and contributions to volunteer services whilst in remand. I am informed by the social workers that in view of her remorse and good behaviour whilst on remand the CSD invited D2 to participate in a short film warning juveniles not to break the law. D2 has also participated in Father John’s programme about the consequences of people getting involved in drug trafficking. Father John, as well as her counsel, Ms Patricia Alva, has requested a reduction in sentence be given for participation in the campaign against drugs.
D2’s letter, written in Father Wotherspoon’s campaign, describes D2’s account of how she became involved, and the devastating effects of imprisonment has had on her, on her family and her son, and her deep remorse. As with D1, this letter is similar to those received by this court in many other cases. I do not find D2’s letter to be a meaningful contribution to the campaign. For the reasons similar to D1, I place no weight on it and do not consider it warrants any further discount to her sentence.
In respect of D2’s mistaken belief in the nature and kind of drugs in Charge 2, D2 believed the drugs to be ketamine. In her VRI, D2 mentioned ketamine to be in the Noah. On the balance of probabilities, having heard her evidence and the evidence of the drug expert, I found that D2 genuinely believed the drugs in Charge 2 to be ketamine.
In the case of HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367, Ma CJHC, as the Chief Justice then was, giving judgment report held that:
“In sentencing a defendant who believed the drugs to be of a less potent type then they actually were, this would be a factor that goes to the reduction in what otherwise would be the appropriate sentence. The defendant will be sentenced in accordance with a tariff in the actual drugs, what the actual drugs are, but given a discount on account of his or her mistake but genuinely believed that the drugs were something else.”
On the facts of the present case, D2’s mistaken belief that the cocaine was ketamine would mean that D2 should be sentenced on the tariff for cocaine but given a discount on account of her mistaken belief that they were ketamine.
I turn now to sentence. The sentence approach to sentencing in drug trafficking cases are the ones laid down in the following five cases: HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290; HKSAR v Lee Ming Ho [2024] HKCA 150; HKSAR v Raman Kapusamy [2024] 2 HKLRD 955; HKSAR v Sum Ka Wa [2024] 4 HKLRD 777 and; in the very recent case of HKSAR v Huang Ruifang [2025] HKCA 234, where the Court of Appeal revised the sentencing guidelines in heroin, cocaine and ‘Ice’ to be effective immediately as from the date of judgment of 5 March 2025. I apply the principles and the steps in those cases when sentencing the defendants in this case.
The first step in Herry Jane Yusuph is that to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. The drugs in this present case are ketamine and cocaine. The tariff case for ketamine is set out in the authority of the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, and for large amounts of ketamine, Sin Chung Kin [2013] 1 HKLRD 627.
The tariff case for the drug heroin and cocaine are set out in The Queen v Lau Tak Ming [1992] HKLR 370, and as revised in Huang Ruifang.
In Charge 1, D1 and D2 trafficked in an amount of 75.63 grammes of ketamine. According to the guideline case in Hii Siew Cheng the relevant band of sentence is between 6 to 9 years’ imprisonment for 50 to 300 grammes. Upon an arithmetical calculation the appropriate starting point is 6 years and 3 months’ imprisonment.
In Charge 2, the amount of cocaine involved in Charge 2 is 56.17 kilogrammes or 56,170 grammes of cocaine. Under the revised guideline case for Huang Ruifang when the cocaine is over 30,000 grammes it is above 30 years and at the sentencer’s discretion.
Charge 3, the amount of cocaine in this charge is 2.18 grammes. For this amount of cocaine the guidelines sentence as stated in Lau Tak Ming is still applicable. According to the guideline, up to 10 grammes, a sentence of between 2 to 5 years is appropriate. Upon an arithmetical calculation, the relevant starting point is 2 years 6 months.
In Charge 4, the amount of ketamine was not specified in this charge of conspiracy to traffic in ketamine. The period in the charge is from a day unknown in January 2022 to 1 August 2022. In sentencing for conspiracy to traffic in drugs the court must do its best to ascertain the actual amount of drugs involved in a conspiracy. In calculating the amount of drugs the evidence is revealed by D1’s own admission in his video-recorded interview. D1 stated that on the arrangement of Ah Hong each month he would receive 240 grammes of ketamine about two to three times per month. He would receive the drugs, repackage them, then deliver about 20 to 40 packets daily and receive $1,000 a day, or about 30,000 per month. D1 stated that the drugs in Charge 1 were part of the 240 grammes he received.
Based on the above admission of D1, the offence period lasted for seven months, and the frequency of 240 grammes was two to three times per month. In calculating the amount of ketamine D1 handled during the seven month period I take 740 grammes times seven months times 2.5, as per the occasions per month, which equals 4,200 grammes of ketamine.
The purity of the drugs in Charge 1, that is in D1’s possession, that is E1 to E4, was about 83 per cent. That is 45.23 grammes of ketamine in a solid of 54.45 grammes, or if on all the drugs in Charge 1, it was still about 83 per cent, that is 75.63 grammes of ketamine in 90.65 grammes of a solid. Adopting an average purity of 83 per cent of ketamine, the solid, of 4,200 grammes D1 handled over the seven month period, that would be about 3,486 grammes of ketamine.
The tariff for ketamine set out in the Secretary for Justice v Hii Siew Cheng is at the maximum of trafficking in more than 1,000 grammes of ketamine which would attract a starting point of 14 years or more.
The Court of Appeal in HKSAR v Leung Lok Yi CACC 346/2016, considered the approach to quantities of over 1,000 grammes of ketamine and said the courts should continue to adopt the approach in Sin Chung Kin [2013] 1 HKLRD 627. The court in Sin Chung Kin determined that for trafficking in 2,000 grammes of ketamine narcotic the starting point should be no less than 18 years’ imprisonment, while for trafficking 3,000 grammes the starting point should be no less than 20 years’ imprisonment.
It further held, in paragraph 28:
“...if more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years, although the increase in the 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.”
Pursuant to Sin Chung Kin, I consider the relevant starting point in Charge 4 should be 20 years’ imprisonment.
The present case concerns two types of drugs, ketamine and cocaine, amongst the four charges for D1 and two charges for D2. In sentencing the defendants, I shall take a global approach and sentence the defendants on the total quantity of drugs trafficked in all the charges, for D1 that is Charges 1 to 4 and for D2, Charges 1 and 2, and then reflect the sentence in the individual charges.
In arriving at the total quantity of drugs I adopt the combined approach and conversion approach. I shall take the total amount of ketamine and convert that to an equivalent amount of cocaine.
I turn first to deal with D1. In Charge 1, the total quantity of ketamine is 75.63 grammes, with a starting point of 6 years 3 months, and converting the amount of ketamine to cocaine, that will be approximately 27.43 grammes of cocaine.
In Charge 3, the amount of cocaine is 2.18 grammes, adding that to 27.43 grammes in Charge 1 equals 29.61 grammes of cocaine. In addition to the 56,710 grammes in Charge 2, the total cocaine in charges 1, 2 and 3 is 56,738.61 grammes.
In Charge 4, the total amount of ketamine is 3,486 grammes, with a starting point of 20 years’ imprisonment. If converted into cocaine that would be equivalent to approximately 600 grammes of cocaine. Adding 600 to 56,738.61 makes a total of 57,339.61 grammes, which is the total amount of cocaine for all four charges.
As I mentioned, the guideline in Huang Ruifang for over 3,000 grammes of cocaine is over 30 years at the sentencer’s discretion.
The Court of Appeal has considered large amounts of drugs in Sum Ka Wa and Lee Ming Ho. Given the remarks in Sum Ka Wa the Court of Appeal stated that realistically, and for all practical purposes, there is a prevailing sentencing limit for the offence of trafficking in dangerous drugs, which is 35 years’ imprisonment after trial, save in very exceptional cases for sentences be above that term.
Ms Patricia Alva, for D2, has helped set out a table with the quantity of drugs in the cases of Huang Ruifang and Sum Ka Wa. I have confirmed with all counsel, including Ms
Claudia Ko, the amounts and quantities in Sum Ka Wa. The total amount in Sum Ka Wa in Counts 2 and 3 in respect of cocaine amounted to 26,965-odd grammes of cocaine. The total amount of cocaine in Count 3 was 23,700 grammes. In that case the Court of Appeal upheld a starting point of 33 years’ imprisonment in Count 3, that was for 23,700 grammes of cocaine.
In the instant case the total quantity of cocaine is much larger than that amount, at 57,339.61 grammes of cocaine. I have taken into account what the Court of Appeal has said and deriving my starting point from Sum Ka Wa, I also adopt 33 years’ imprisonment for the total narcotic in all four charges for D1.
Turning to the amount of drugs trafficked by D2. D2 is involved in Charges 1 and 2. The total drugs is 27.43 grammes plus 56,710 grammes, which equals 56,737.43 grammes of cocaine. For this amount, I would also take the same starting point of 33 years’ imprisonment.
The second step is to assess the role and culpability of the defendants based on the evidence. D1 and D2 were the couriers and/or packers of the drugs. D1 and D2 were in a romantic relationship. They became involved with each other when D2 was 19 years old, when they met, when D1 was D2’s boss in the karaoke restaurant. D2 is 35 years her senior.
Even though they were both couriers and packers they were not as culpable as each other. D1 had the more dominant role. He was the one that knew Ah Hong. D2 did not know Ah Hong. D1 was the one who got involved in trafficking because of Ah Hong. On the direction of D1, D2 became involved in the offences as a result of her relationship with D1.
As Ms Alva has said, D2 addressed D1 as her 老公, or her husband. D2 believed D1 was her superstar, the man in her life. He was the one who was controlling and directing her, and gave her the orders for packaging of the drugs. Clearly D2 was involved in trafficking of the drugs as a result of her involvement with D1. D1 received instructions from Ah Hong, the provider and director of where the drugs should be delivered to, and the paymaster. Then D1 would direct D2 to pack and deliver the drugs. So in my view, D2 played a far lesser role than D1, further D1 had got D2 involved in trafficking.
The third step is to identify where in the relevant band the defendants come. The defendants’ role as packagers and couriers fall within the lowest band but given the circumstances of the offence and roles of the defendant, as I have mentioned, I found D1 more culpable than D2. Taking
into account the third band of where in the guidelines the defendants should lie, I consider that an appropriate starting point should be 33 years for D1 and 31 years for D2.
The fourth step is the consideration of any aggravating factors. In this case there was more than one type of drug involved. This is an aggravating feature that an enhancement of sentence should be passed. I consider that an enhancement of 3 months is appropriate for both defendants, making their starting points respectively 33 years 3 months for D1, and 31 years 3 months for D2.
The fifth step is to consider all mitigating factors, bearing in mind that in this particular branch of sentencing personal circumstances would generally count for little. I do not consider there to be any personal mitigating factors for the defendants. I do not consider there to be any positive assistance provided by D2 about Ah Hong in her VRI to warrant any discount. D2 had never met Ah Hong, the supplier and boss of D1. What she had told the police was about what D1 had told her about Ah Hong’s physical appearance and other irrelevant information regarding a car he wanted to sell. She told the police that D1 had Ah Hong’s phone number.
Defendants’ entitlement to a one-third discount. The most significant mitigating factor are the defendants pleas of guilty. The defendants have pleaded guilty at the earliest opportunity and will benefit from a one-third discount to their sentence from the starting point.
D1, the global starting point for you is 33 years and 3 months’ imprisonment. You shall be entitled to a one-third discount, which will reduce to 22 years and 2 months’ imprisonment to which you shall serve. I’ll give you the individual sentences in a moment.
D2, the global sentence for you is 31 years 3 months’ imprisonment. On account of your plea of guilty you shall be entitled to a one-third discount, which sentence shall be reduce to 20 years and 10 months’ imprisonment. D2, you are entitled to a further discount for your mistaken belief to which, on the evidence, I consider you should be entitled to a further 7 per cent, which makes a total of 40 per cent discount from the starting point, I have taken guidance from the case of Yip Wai Yin. Therefore the overall sentence, D2, that you shall serve is 18 years and 9 months’ imprisonment.
The sixth step is to observe the overall sentence passed to ensure that it is fair and balanced in all the circumstances of the offence and the offender. Considering all the matters I have referred to, this I do and consider it to be so.
Now I shall turn to sentence the defendants individually for each offence. I turn to sentence the defendants individually for each offence to reflect the overall sentence outlined.
D1, I turn first to you in your individual sentence. You are charged with four offences. Charge 1, you were trafficking in 75.63 grammes of ketamine. As stated, that sentence warrants a starting point of 6 to 9 months’ imprisonment. I take that as a starting point, reducing that by one-third. On Charge 1, you are sentenced to 4 years 2 months’ imprisonment.
In Charge 2, you were trafficking in 56,710 grammes of cocaine. The amount falls in the band over 30,000 grammes and the sentence is at the sentencer’s discretion. I take a 33 years’ imprisonment as the appropriate starting point, and after a one-third discount reduce that term to 22 years’ imprisonment.
In Charge 3, you were trafficking in 2.18 grammes of cocaine. As stated above, I take a starting point of 2 years 6 months’ imprisonment as the appropriate starting point, and after one-third discount that term is reduced to 1 year and 8 months’ imprisonment.
In Charge 4, D1, you conspired to traffic in 3,486 grammes of ketamine. I take a starting point of 20 years’ imprisonment, and after a one-third discount reduce that to 13 years and 4 months’ imprisonment. To reflect the total sentence of 22 years and 2 months, I order 2 months of Charge 1 to run consecutive to Charge 2, and the remainder of the terms to run concurrent to each other.
D2’s individual sentence. D2 is convicted of Charges 1 and 2. For Charge 1, she is jointly charged with D1 and her sentence shall be the same as D1 and sentenced to 4 years and 2 months’ imprisonment.
For Charge 2, again she is jointly charged with D1. The notable starting point is 31 years 2 months’ imprisonment, given her 40 per cent discount on the starting point because of her mistaken belief, D2 is therefore sentenced to 18 years and 9 months’ imprisonment. D2’s sentences in Charge 1 and 2 are to run concurrent to each other. That concludes my sentence.