Counts 1 and 3 reflect a commercial operation. You told the jury that you knew nothing about it. But Chan Ying-hong, who pleaded guilty to these offences and who gave evidence against you in trial, told the jury that you had arranged for him to receive 3 kilogrammes of ketamine on 2 October via a GoGoVan delivery. The 3 kilogrammes of ketamine were concealed within branded boxes of milk powder, which were themselves within a concealed(sealed?) brown cardboard box. He said that you had instructed him to take the drugs to a hotel in Tsing Yi and you had provided him with $1,000 to pay for both the GoGoVan and the hotel.
In evidence, you suggested something quite different. You suggested that you had simply loaned $1,000 to Chan and that you knew nothing of the GoGoVan, the 3 kilogrammes of ketamine or a hotel. You said that Chan asked to come to your home and that it was Chan who had suggested to go out the next day to Kwai Fong. You had travelled from Tin Shui Wai to Kwai Fong by bus and then on to Tsing Yi by bus and then by foot to the Winland 800 Hotel but had not known where you were going at any stage and had ended up, by surprise, at a hotel in Tsing Yi.
Whilst you accepted that you had booked the room at the Rambler Garden Hotel where the drugs were later found, and indeed had paid for it, you said you had done so at the behest of Chan although at no stage did you ask Chan why he would be booking a further hotel room when he had no money and lived in Ma On Shan. Nor do you ask about all of the equipment which you helped to transport into the new room in the Rambler Hotel other than to simply ask what was in the cardboard box. When Chan replied milk powder, you said nothing more.
I do not know if the jury believed everything Chan told them. I certainly did not, but the jury clearly disbelieved your account. That is no surprise. Your counsel suggested in cross-examination you were legally blind with presbyopia 200 and yet you gave evidence that you drove for a living. He also suggested you were illiterate and yet you accepted in evidence that you could read some of the Pol 153, Notice to Persons in Custody. He further suggested that you had been the carer for your daughter who, sadly, died in August 2019, but we learnt that you had been addicted to drugs since 2011 and had been in prison for a substantial period around 2014 and could not have been caring for a child with epilepsy. Almost everything you said had the taste of untruth.
You suggested on oath that despite the fact that dangerous drugs were on open view in the hotel room when the Customs and Excise entered, and despite the fact that you spent a period of some six hours going to and fro from that room with Chan, you had not noticed bags of ketamine, electronic scales or a sealing machine, let alone plastic gloves and paper plates as well as empty pet food bags which were on the beds. You told the jury they had been covered up and yet they were not covered in any way when the Customs and Excise led you back to Room 2355 after arrest. The extent to which you lied about the events was marked. At each turn you attacked either Chan, your partner in crime, or the officer who arrested you. You went so far as to suggest that Chan not only gave evidence to gain a further discount on sentence but he also blackmailed you into giving him money because he had been caught.
The value of the ketamine in which you trafficked in October 2019 under Count 1 would have been $246,000, and the value of the ketamine under Count 3 would have been $847,467. A total of over HK$1 million. The very small amount which you have pleaded guilty to possessing for the purpose of self-consumption is negligible in respect of the value when considering the ketamine which you trafficked.
You were 45 years of age at the time of this offending and unemployed, and you were not of good character. You were convicted of trafficking in dangerous drugs in 2014, for which you received a term of imprisonment of 4 years and 8 months, and you also have previous for possession of dangerous drugs. This offence took place, however, a few years after that last term of imprisonment and so I am not going to enhance your sentence in respect of that previous offending.
The case of HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1 provides sentencing guidelines for trafficking in ketamine up to a kilogramme, at which point sentencing is at the discretion of the court.
Looking firstly at the ketamine as a whole in order to establish the boundaries for sentencing, I have considered the guideline for both 1 kilogramme and 2 kilogrammes. I bear in mind that this authority suggests that the starting point for trafficking in up to 1 kilogramme of ketamine after trial is 14 years. You have admitted. Well, you have not admitted. You have been found guilty of trafficking in almost double that quantity, 1,874 grammes.
In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and followed in HKSAR v Chan Ka Yiu [2018] HKCA 410, the starting point for trafficking in 2,000 grammes should be in the order of 18 years. That would suggest that a starting point in the region of 17 years and 9 months would be appropriate for trafficking in 1.8 kilogrammes of ketamine if these had been before me just as one count.
As it is, I must sentence you for each offence. The starting point I adopt for Count 1, which concerns 381 grammes of ketamine, is that of 9 years and 9 months’ imprisonment. On Count 2, for possession, there will be no separate penalty. And under Count 3, for 1,493 grammes of ketamine, a starting point of 16 years’ imprisonment is appropriate. That would make a total sentence of imprisonment of 25 years and 9 months which does not reflect your culpability when compared to the starting point of 17 years 9 months’ sentence if these drugs were just part of one count.
You have been found guilty after trial. There is no mitigation before the court which can reduce the sentence I must pass, and no mitigation was proffered save to say that the defence saved a significant amount of court time by agreeing a substantial part of the evidence, and that was to your credit.
On Count 1, you will go to prison for 9 years and 9 months. On Count 2, there will be no separate penalty. On Count 3, you will go to prison for 16 years; 21 months of the sentence under Count 1 to run consecutively to your sentence on Count 3.
You will go to prison for a total of 17 years and 9 months.
Chan Ying-hong, you pleaded guilty on 2 November 2020 before the Eastern Magistracy to two counts of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in that you admitted that you unlawfully trafficked in 381 grammes and 1,493 grammes of ketamine respectively on 3 October 2019 in the vicinity of the Rambler Garden Hotel, Tsing Yi. You also pleaded guilty to one count of possession of 4.04 grammes of ketamine on the same date and at the same place. All three offences therefore arise from the same offending.
The Summary of Facts has been read out to you and they were agreed by you, but I have also had the benefit of hearing the whole of the evidence in the trial of your co-defendant, Cheung Hoi-pun, and of hearing the evidence which you gave in that trial on behalf of the prosecution. You were told on the last occasion that I would take this into account when sentencing you.
Counts 1 and 3, as I have said, reflect a commercial operation. You told the jury that you had received 3 kilogrammes of ketamine on 2 October via a GoGoVan delivery. Indeed, it appeared that this was a common form of transportation for the movement of dangerous drugs as you referred to it more than once. The 3 kilogrammes of ketamine were concealed within branded boxes of milk powder which were themselves within a sealed brown cardboard box. You said that you did not open the cardboard box at that time but took it back to your home address prior to travelling from your home in Ma On Shan to the Winland 800 Hotel in Tsing Yi.
You told the jury that you collected what was 3 kilogrammes of ketamine from the GoGoVan driver at the behest of Cheung Hoi-pun and that it was Cheung who had instructed you to take the drugs to the hotel. You said that he transferred $1,000 to you to enable you to pay both the driver and book a hotel room, and it was only once you were at Tsing Yi that you booked your room at the Winland 800. Having taken the drugs into the room you had reserved, you rang Cheung. He told you to open the box to check the goods, and you did so but you did no more than that, although you said that you remained in the room for the entire afternoon until 9 pm that evening when you went over to Cheung’s home in Tin Shui Wai where you stayed overnight, apparently leaving over $1 million worth of ketamine on its own in a hotel room in which there would have been access by room service.
Both you and Cheung left Tin Shui Wai in the late morning on 3 October. You took with you from Cheung’s home, you said, the necessary tools to carry out the job which you had been tasked to do, and that was to subdivide the drugs. Those tools included, amongst other things, a set of electronic scales, a sealing machine and foil pet food bags to conceal the ketamine once it had been extracted from the milk powder boxes. You also took a large cardboard box containing a Philips rice cooker which you say you had intended to be used to hide drugs.
This exercise of repackaging the ketamine was going to be carried out at the Winland 800. Unfortunately, the hotel could not extend your reservation and therefore you needed somewhere else to carry out your plan. You remained in the hotel room at the Winland 800 with the drugs and other equipment whilst Cheung went to the neighbouring Rambler Garden Hotel and reserved a new room for three nights although neither of you took any personal items for such a stay.
From the photographs of Room 2355 at P96, it appears that you were extracting the ketamine from the sealed foil packets contained within the boxes of milk powder. They had obviously been professionally packaged because you said you had to snip open the various foil packages to check which had ketamine within them and which had milk powder. There were six boxes in all and you told the court that three of them contained ketamine.
During the afternoon of 3 October, you had subdivided the ketamine into approximately 253 grammes ziplock bags which you then concealed within the foil pet food bags which were themselves sealed with the sealing machine you had with you.
You first arrived at the hotel room in the Rambler Garden Hotel at about 2 pm. Within an hour, you left with Cheung in order to buy other items you required to do the repackaging, which included the ziplock bags which we see in photo 20 as well as paper plates and rubber gloves. You left once more two hours later. You told the jury that you had needed other items in order to weigh and repackage the drugs, which is why you had to shop. Once you had what you needed to subdivide the drugs, as we can see at photo 20, you said that Cheung had taken the photographs at tab 6, P99, of the drugs in the ziplock bags with their weight written on them in order for him to check with someone else that the packaging had been done correctly.
At 18.43 that evening, you left the hotel again with Cheung, but this time you were carrying several bags. And you were out of the hotel for just 10 minutes. You returned and remained in the room until you went out for the last time at 8 o’clock, carrying yet more bags.
It was at this point that you were intercepted along with Cheung Hoi-pun on the podium outside the Rambler Garden Hotel. You were found to be carrying the 381 grammes of ketamine which forms the basis of Count 1. It was expertly hidden inside a packet of cat food. You had, of course, an absolute right to silence at this point, but it is to be noted that you were not full and frank with the officers at that time, and it was only much later that you decided to cooperate with the Customs and Excise and agreed to give evidence against Cheung.
In that evidence, you said that you received instructions from Cheung. He was your boss. Cheung, in turn, was receiving his instructions from somebody called Si Heng. You told the jury that it was Cheung who instructed you what to do with the drugs. You were taking directions from him. And you have not mentioned in your evidence what reward you were to receive for your part in this offending.
Cheung Hoi-pun, as you know, gave evidence in his defence. By reason of the unanimous verdict of guilty by the jury on both counts, they did not believe him when he said that he knew nothing about the dangerous drugs in your possession and in the room he occupied over a six-hour period. However, that is different from approving the whole of your version of events and I must say I believe you have been economical with the truth. I had the opportunity to observe Cheung. He is clearly a long-term drug addict and I suspect that has had some effect upon his mental health and agility.
Having considered, compared and contrasted what both of you have said on oath, I find that whilst you played quite different roles, Cheung was neither your boss nor was he instructing you that day how to proceed. I find that he was merely a conduit between other drug dealers and the pushers on the street. As such, I find that the roles that you played were on a par.
The value of the ketamine in which you trafficked in October 2019 under Count 1 would have been HK$246,000 and the value of the ketamine under Count 3 would have been HK$847,467. A total of over $1 million. The small amount which you have pleaded guilty to possessing for the purpose of self-consumption is negligible in respect of the value when considering the whole of the ketamine which you trafficked.
You were 38 years of age at the time of this offending and you worked as a cook on a good salary in the region of $28,000 per month. And it would appear that you had a good relationship with your employer from the letter that has been received. But you were not of good character either. You met Cheung when you were serving a sentence of DATC for possession of dangerous drugs in 2011. Two years later, you were prosecuted once more for possession and served another period of DATC. On your own admission, you have been consuming drugs since that date up to the date of this offence and have been involved in trafficking previously. But you are not being sentenced for what you have frankly admitted in court, and I will not enhance your sentence for your previous offending for which you have already been punished.
The case of HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1 provides sentencing guidelines for trafficking in ketamine up to 1 kilogramme, at which point sentence is at the discretion of the court.
Looking firstly at the ketamine as a whole in order to establish the boundaries of sentencing, I have considered the guidelines for both 1 kilogramme and for 2 kilogrammes, and I bear in mind that this authority suggests that the starting point for trafficking in up to 1 kilogramme of ketamine after trial is 14 years. You have admitted to trafficking in almost double the quantity, that is, 1,874 grammes.
In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 as followed in HKSAR v Chan Ka Yiu [2018] HKCA 410, the starting point for trafficking in 2,000 grammes should be in the order of 18 years. That would suggest that a starting point in the region of 17 years and 9 months would be appropriate for 1.8 kilogrammes of ketamine if these had been before me as just one count.
As it is, I must sentence you for each offence. The starting point I adopt for Count 1, which concerns 381 grammes of ketamine, is that of 9 years and 9 months’ imprisonment. On Count 2, for possession, there will be no separate penalty. And under Count 3, for 1,493 grammes of ketamine, a starting point of 16 years’ imprisonment is appropriate. That would make a total sentence of imprisonment of 25 years and 9 months’ imprisonment which does not reflect your culpability when compared to the starting point for sentence if these drugs were just part of one count. Nor does it take into account your assistance.
Under HKSAR v Abdou Maikido Abdoulkarim [2016] 5 HKLRD, as you have pleaded guilty at committal and at the first opportunity, you are of course entitled to a full one-third discount from that starting point after trial.
I have also taken into consideration the fact that you have given evidence against your co-defendant, Cheung Hoi-pun, who was found guilty by the jury. As I have already mentioned, in that evidence, you suggested that you were acting at the direction of Cheung. Having observed Cheung in the witness box, I do not accept that you had a lesser or subservient role. I believe you were acting in an equal capacity even though you may have had different roles. Your roles were to be middlemen. On your own admission, you were to receive and subdivide drugs for others who I presume may then subdivide the drugs further for onward sale.
I also took the view that at times you were not entirely frank with the court and that there may very well have been an expectation of a significant reward. I believe it likely that the conversation about a $300,000 compensation package from Si Heng between you and Cheung had some element of truth.
You are nevertheless entitled to a greater discount for your assistance which in all the circumstances of this case will result in the following sentence:
On Count 1, you will go to prison for 5 years and 2 months. On Count 2, there will be no separate penalty. On Count 3, you will go to prison for 8 years and 6 months; 11 months of the sentence under Count 1 to run consecutively to your sentence on Count 3.
You will go to prison for a total of 9 years and 5 months.