HKSAR v. LI SING YAN

HCCC 356/2020,
HCCC 246/2021 and
HCCC 247/2021

[2025] HKCFI 2096

(Heard together)

HCCC 356/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 356 OF 2020

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AND

HCCC 246/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 246 OF 2021

________________________

AND

HCCC 247/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 247 OF 2021

________________________

 (Heard Together)

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The 3 cases, HCCC 356/2020, HCCC 246/2021 and HCCC 247/2021 have connection. The cases concern drugs posted from Germany to the same address. It is the consensus of all parties that the 3 cases can be dealt with together, and I consider it appropriate to do so. To avoid confusion, I adopt the original arrangement to call SHING Yiu-fung as D2 and LI Sing-yan as D3. There is another person, LAI Wing-hong, who will be sentenced separately, and will be called D1.

Sentencing Consideration

2.  In sentencing, I have considered the whole of the circumstances, including the facts each defendant admitted, the type and quantity of drug involved, personal background of the defendants and mitigation put forward on their behalf including what I set out below.  I also have regard to the relevant tariff cases as well as the following two cases in which the Court of Appeal set out principles and approach of sentencing consideration: HKSAR v Herry Jane Yusuph[1]and HKSAR v Lee Ming Ho[2].

THE FACTS

3.  The facts of the cases may be summarized as follows.

4.  On 11 February 2019, Customs officers found two suspicious parcels (“parcels A and B”)  sent from Germany. 

5.  Subsequently, it was confirmed that parcel A contained a total of 3,004 grammes of a solid containing 2,600 grammes of ketamine.  The dangerous drug was contained in each of the 7 pieces of cake placed in transparent bags and paper boxes. 

6.  Parcel B was confirmed to contain a total of 2,957 grammes of a solid containing 2,563 grammes of ketamine. The drug was contained in bread inside the parcel.

7.  The declared content of both parcels was “Ginger Bread Sample”.  The delivery addresses were the same: the office address of a company called Brilliant Business Centre Limited (“BBCL”)  which provided secretarial services to clients. 

HCCC356/2020 & HCCC246/2021

8.  These two cases relate to Parcel A.  There are two cases because D3 pleaded guilty before a Magistrate[3] and D2 did so only when his case had been fixed for trial in the Court of First Instance[4].  In essence, D2 and D3 are alleged to have conspired with other persons in trafficking in the drug inside this parcel.

9.  The named recipient of parcel A was “Chan Wai Wai”, who was one of the clients of BBCL.  After interception of the parcel, the Customs arranged to send an email to Chan Wai Wai (“Mr Chan”)  informing him of the arrival of the parcel for his collection.

10.  On 13 February 2019, a GOGOVAN driver came to collect the parcel, claiming that he was instructed to do so by Mr Chan.

11.  The driver was arrested and he participated in a controlled delivery operation.  Later, in Kwai Chung, after D2 received the parcel from an officer disguised as a vehicle delivery attendant, he was arrested.  D2 said under caution that he was asked by a friend, Cheung Chai, to collect the parcel as the latter was not free.  He said he did not know what was inside the parcel and he would not receive any reward.

12.  After the arrest of D2, there were calls to his mobile phone from callers whose names had been saved in D2’s phone as Cheung Chai and Ah Sing.  D2 did not answer the calls. 

13.  D2 later participated in a controlled delivery operation and used his mobile phone to talk to Cheung Chai and Ah Sing respectively.  D2 was told by Cheung Chai to call Ah Sing.  D2 did so.  Ah Sing is D3.  D3 asked D2 whether he had been told to “flower” the bag of stuff. “Flower” is a term commonly used in the illicit drugs subculture and refers to the act of packaging dangerous drugs or processing drugs.  D2 replied no.  D3 told D2 to ask whether the latter would need to do this act.

14.  In another phone call, D3 asked D2 whether he had opened the goods and D2 replied no.  D3 told D2 that Cheung Chai would come on the following day and he (D2)  was not to open the parcel.  D3 also told D2 to bring the parcel to a location at 1 pm on the following day.  D3 said, “you know what to say when things come up. Just say you don’t know what it is, think it’s some goods from Taobao.”  D3 also told D2 to lend his place to Cheung Chai to “flower” the stuff.  D2 refused.  D3 said to D2 that ‘If you are questioned, just say you received that for a friend whom you knew at a bar.  The friend was busy, so you received that for him/her”.  D2 replied Cheung Chai had told him that he would only be responsible for receiving the goods.  D3 said what he heard was that Cheung Chai would be responsible for flowering, and D2 would be responsible for carrying the goods.

15.  Then D2 made a call to Cheung Chai, and said his parents had seen the packet of stuff and asked what it was, he also asked Cheung Chai to come and take the stuff away.  Cheung Chai asked D2 whether his parents had said they would throw the stuff away and said “tell them to throw it away then, just prepare to repay the money and be chopped tomorrow”.  D2 then asked Cheung Chai to help him.  Cheung Chai said he would only help him (D2)  to flower it but he was not going to receive it.  He also told D2 that he (D2)  could say it is a computer, and said he (D2)  had been taught what to say.  D2 then said he could not keep the stuff at home.  Cheung Chai asked D2 if he would pay him $3,000 as reward.  When D2 told Cheung Chai he could take the money, Cheung Chai said he did not give a crap about that, it was D2 who took the job.

16.  There were also messages in the mobile phone of D2 which showed D2 did ask Cheung Chai whether the parcel had arrived and when to start working with Cheung Chai replying “very soon”, and D2 asking Cheung Chai to reflect to D3 about lack of transportation fee and ask D3 to advance more money.

17.  As the telephone number of D3 was kept in the mobile phone of D2, the identity of D3 became known.  A few months later, on 19 May 2019, D3 was arrested at his home. Under caution, he said he had no knowledge about the parcel.  He said he did not know who Shing Yiu Fung (D2)  was. 

18.  D3 provided the password of his mobile phones to the officers.  The telephone numbers of Cheung Chai and D2 had been saved in the contact list in some of his phones.

19.  From one of D3’s mobile phones, WeChat conversations between D3 and an unknown person called Mei Ling were discovered.  Amongst the messages the followings were found:

(1)  In exchanges on 17 January 2019, D3 sent to Mei Ling a photograph depicting D2’s identity card and another depicting a letter with D2’s name and his home address;

(2)  Mei Ling making remarks that D2 was too young, and D3 said “are you hiring a celebrity? It is for hiring a person to deliver drugs”;

(3)  Mei Ling said D2’s appearance was silly and D3 said if D2 was smart he would not be distributing stuff;

(4)  In exchanges on 13 February 2019, the day on which D2 received the parcel, term commonly used in the illicit drug subculture referring to dangerous drug transaction and jargon meaning 250 grammes of dangerous drugs were found. In addition, there were exchanges showing a telephone number which is untraceable, D3 sending the telephone number of D2 to Mei Ling, and saying that the transaction would take place on that day;

(5)  On the following two days, there were talks about whether D2 had been caught and a news report that the parcel had been intercepted, D3 said he would need to hide himself; and

(6)  In messages a few days later, D3 asked Mei Ling why the quantity was 3 kilogrammes whereas it should have been 1 kilogramme. They also talked about asking the boss to engage a lawyer for D2. D3 expressed worry that D2 might disclose the people involved and he (D3)  himself would be affected.

HCCC 247/2021

20.  This case, as far as D2 is concerned, relates to the drug found at his home. 

21.  After D2 had been arrested as mentioned earlier[5], he was taken to his home for a search.  Dangerous drugs were found, they were: 0.08 grammes of a solid containing cocaine, 0.02 gramme of a solid containing ketamine and cocaine, and 0.03 gramme of a solid containing ketamine.  D2 admitted that he trafficked in these drugs.

THE CHARGES

HCCC 356/2020

22.  D3, Li Sing Yan, is the defendant in this case. He pleaded guilty before a Magistrate to a charge of Conspiracy together with D2, Mei Ling and Cheung Chai to traffic in a dangerous drug, which is in relation to Parcel A.  He was committed before me for sentence.

HCCC 246/2021

23.  D2, SHING Yiu-fung, is the defendant in this case.  He was originally charged with Trafficking in dangerous drug, in relation to the drug contained in Parcel A.  He pleaded not guilty and was committed to the Court of First Instance for trial.  Prior to the trial, there was plea bargain and the Prosecution indicated that they were prepared to accept a guilty plea to the offence of Conspiracy to Trafficking.  The subject matter is the same as in the case that D3 faced.  An amended indictment was filed, alleging that D2 conspired with D3, Mei Ling and Cheung Chai.  Before me, D2 pleaded guilty to the amended count of offence.

HCCC247/2021

24.  D1 LAI Wing Hong and D2 SHING Yiu-fung are the defendants in this case.  D1 will be dealt with separately.

25.  D2 was charged with Trafficking in the dangerous drugs found in his home.  He pleaded guilty before a Magistrate to this charge and was committed before me for sentence.

CIRCUMSTANCES PERTAINING TO EACH DEFENDANT AND MITIGATION

D2 SHING Yiu-fung

26.  On hehalf of D2, Mr Bernard Yuen asked the court to take into account that D2 pleaded guilty at the earliest opportunity to the charge laid against him in HCCC247/2021.

27.  In relation to HCCC 246/2021, Mr Yuen informed the court that despite D2 had not pleaded guilty at earlier stage, he stated clearly both to the prosecution and the court that he was prepared to admit most of the evidence, including that he had received the parcel containing drug, the chemist examination, the chain of evidence and the value of the drug. 

28.  Mr Yuen also urged the court to take into account that D2 was only of the age of 17 years at the time of the offence and he had a clear record.

29.  Mr Yuen informed the court that D2 studied up to Form 3 and worked as a warehouse keeper and manual labour on freelance basis, earning about $12,000 a month.

30.  He told the court that D2 had known Cheung Chai for about 5 years and that he was a person of dubious character engaging in smuggling of goods and trafficking in dangerous drugs.  D2 engaged in football gambling and as he had lost he borrowed $15,000 from Cheung Chai.  It was in these circumstances that he agreed to the request of Cheung Chai to pick up the parcel and keep it in his home.  He did not realize the very serious nature and consequence of the offence.

31.  During the custody of more than 5 years, D2 has reflected upon himself and is determined to turn a new leaf.

32.  Mr Yuen asked the court to take into account the assistance D2 had given to the authority, which included:

(1)  Upon arrest, D2 at once gave details to the officer about how he came to collect the parcel and gave the full name and phone number of Cheung Chai;

(2)  He willingly took part in a controlled delivery operation and used his phone to talk to Cheung Chai and D3, as directed by the officers;

(3)  His participation resulted in revealing the roles of D3 and Cheung Chai; and

(4)  He gave permission to the officer to inspect his phone, as the number of D3 had been saved in his phone he (D3)  was traced and arrested.

33.  Mr Yuen also made the following submission:

(1)  Cheung Chai was the person who guided and directed D2 as to what to do and in one of their conversations he used threatening word upon him (D2);

(2)  The exchange between Cheung Chai and Mei Ling indicated that they were manipulating and exploiting D2; and

(3)  The fact that D3 gave Non-prejudicial statement against D2 may be interpreted as some form of revenge from D3.

34.  Mr Yuen also submitted that despite the drugs were from abroad the sentence for D2 should not be enhanced as there is nothing to suggest that he knew Parcel A was imported from abroad or that he knowingly assisted or facilitated the importation of dangerous drug.

35.  Mr Yuen also asked the court to order the sentences in the two cases against D2 to run concurrently.

36.  A letter written by D2 in which he expressed remorse was produced.  A letter written by a Justice of Peace who is a colleague of D2’s mother was also produced in which leniency was pleaded.

D3 LI Sing-yan

37.  D3 is now 29 years of age and was 23 years old when he committed the offence.  He studied up to Form 3 and had worked as a part time transportation worker.  He is single and had been living with his grandparents.  He was on 3 previous occasions convicted.  In 2010, he was put on probation for an offence of Attempted Theft.  In 2011, he misled the Police and a Community Service Order was imposed.  In 2014, for the offence of Trafficking in dangerous drug he was sentenced to DATC.

38.  Counsel for D3, Ms Money Lo, informed the court that D3 had an unfortunate childhood.  His parents divorced and abandoned him in the care of his grandparents when he was 6 years old.  The grandparents are now over 70 years of age.  Despite they love D3 they lack the ability to give him proper supervision. 

39.  Ms Lo stressed that D3 had tried to reform after discharge from DATC.  However, due to his low education background, he could only obtain labour work.  His simple stupidity led him to succumb to the temptation of making quick money and committed the present offence.

40.  Ms Lo said D3 is full of remorse.  He is attending courses to equip himself to turn a new leaf.  He has completed courses in word processing and marketing management. He also has interest in hair styling and is now responsible for cutting hair for inmates.

41.  Ms Lo asked the court to take into account matters including the followings :

(1)  D3 pleaded guilty to the amended charge at the committal stage;

(2)  The particular in the amended charge expressly stated that the conspiracy was confined to 1,000 grammes of ketamine;

(3)  As soon as D3 indicated his desire to plead guilty to the amended charge, he stated his willingness to assist the authority; and

(4)  D3 has provided Non-prejudicial statement to the prosecution and was listed as a witness in the case against D2, D2 has now pleaded guilty and the Non-prejudicial statement of D3 is an important contributing factor.

42.  Ms Lo also argued that in the circumstances of the present case, even though the item came from abroad the sentence on D3 should not be enhanced for this reason. 

CONSIDERATION

Relevant authorities

43.  For the offence of Trafficking in dangerous drug against D2, having considered submission from counsel, I see no reason in the circumstances of the present case to depart from the relevant tariff. 

44.  For the offence of Conspiracy to traffic in a dangerous drug, I have had regard to cases including HKSAR v Tsang Ka Wing[6], HKSAR v Chan Kam Loi[7] and HKSAR v Chung Yat Ho[8].  If quantity of the drug involved is known it provides the court with a ready means of identifying the appropriate starting point, though quantity is not the only fact relevant to the assessment of gravity.

45.  I have also had regard to the sentencing principle and approach as laid down in HKSAR v Herry Jane Yusuph[9]and HKSAR v Lee Ming Ho[10].

Role of the defendants

46.  On the facts admitted by the defendants, I found D3 occupied a higher role in the conspiracy than D2.  That said, I am also of the view that there were someone behind both of them and the respective role of the two defendants was relatively low in the hierarchy of the conspiracy. 

47.  As regards the trafficking count against D2, I consider sentence on the basis that his role was low in the hierarchy in the trafficking operation.

Notional Sentence after Trial

48.  In deciding the notional sentence after trial for each charge, I adopt the sentencing approach as stated earlier, bearing in mind the finding of the respective role of the defendants.

HCCC 356/2020 and HCCC 246/2021

49.  In HCCC 356/2020, D3 pleaded guilty before a Magistrate to one charge of Conspiracy to traffic in ketamine.  In HCCC 246/2021, D2 pleaded guilty before me to one count of Conspiracy to Traffic in ketamine. The conspiracy alleged in these two cases concern trafficking in the drug contained in Parcel A.  In the Particulars of Offence in both cases, conspiracy is alleged without a quantity being specified.  The facts, however, reveal that the quantity of the drug actually seized was 2,600 grammes of ketamine. 

50.  In deciding the degree of culpability of each defendant, I have considered submission from all counsel.  Very briefly, Counsel for the Prosecution, Mr Ng, submitted that the court should take into account the actual quantity of drug involved, whilst Counsel for the 2 defendants submitted that culpability should be gauged by reference to the ambit of the conspiracy.

51.  Counsel were asked to research on relevant authorities and the Court was told that there was none directly on the point.

52.  In consideration, I take into account the following matters :

(1)  The narcotic content of the drug inside Parcel A was 2,600 grammes of ketamine;

(2)  If a defendant is convicted of Trafficking in this quantity of drug, according to the tariff set down in SJ v Hii Siew Cheng[11], the sentence to be considered is over 14 years;

(3)  Having regard to cases such as HKSAR v SIN CHUNG KIN[12] and HKSAR v CHAN Ka Yiu[13], taking into account the narcotic quantity actually found in Parcel A, a notional sentence after trial of 19 years should be considered; and

(4)  The offence the defendants stood convicted in these two cases is Conspiracy to Traffic in dangerous drug, not Trafficking in dangerous drug, the following principles are applicable:

(a)  The court is entitled to take into account the overall criminality involved in the conspiracy, see HKSAR v Tam Kam Tong[14];

(b)  The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out;

(c)  Mens rea of the offence is determined by reference to the time the agreement is made;

(d)  The offence of conspiracy is completed once the required criminal agreement is formed, however, the offence will continue if the agreement continues to exist with at least two parties still participating; and

(e)  Usual sentencing consideration for the offence of conspiracy involves taking into account relevant factors in the case which may be: length of the conspiracy, complexity, loss or potential loss, and degree of risk.

53.  As far as the offence of Conspiracy to traffic in dangerous drug is concerned, according to the cases stated earlier, though quantity is not the only fact relevant to the assessment of gravity, if quantity of the drug involved is known it provides the court with a ready means of identifying the appropriate starting point.

54.  In this case, the quantity of drug actually trafficked in is known. On the other hand, the quantity is not stated in the Particulars of Offence;

55.  There were letters from the Prosecution to the Defence :

(a)  In a letter dated 30 October 2020 to D3, Counsel from DOJ said: “the defendant’s plea bargaining (ie he will plead guilty if the charge is amended to one count of conspiracy to traffic in a dangerous drug, namely 1 kilogramme of ketamine)  has been accepted by the prosecution.”; and

(b)  In a letter dated 5 December 2023 to D2, another Counsel from DOJ, having referred to a letter from the defence proposing a plea negotiation, said in gist “the Prosecution is prepared to amend the Indictment to a count of Conspiracy to trafficking in ketamine without specifying the amount on the condition that the defendant admits to the summary of facts which will state:

(i)  the conspiracy concerned 1,000 grammes of ketamine (ie narcotic content); and

(ii)  the actual quantity of the drug found.

56.  The Summary of Facts which D2 admitted includes the sentence: “D2 now admits and accepts that on 13 February 2019 in Hong Kong he conspired with D3 and persons known as Mei Ling and Cheung Chai, to unlawfully traffic in a dangerous drug, namely 1,000 grammes of ketamine.

57.  The Summary of Facts which D3 admitted includes a sentence in identical terms save that the co-conspirator is stated as D2 instead of D3.

58.  In the circumstances, despite the Particulars of offence in the case against D3 had not been amended as stated in the letter of DOJ and the Particulars of Offence in the case against D2 do not mention the quantity, I am of the view that I should consider sentence on the basis that the conspiracy alleged against D2 and D3 respectively is that the agreement each of them made in relation to the conspiracy was to traffic in 1,000 grammes of ketamine.

59.  The next question is whether this is the confine of the degree of culpability of the two defendants.

60.  In HKSAR v Yeung Hoi Ting[15], which is a case of Trafficking in dangerous drug where mistaken of belief on the part of the applicant on the type of the drug was in issue, having cited relevant passage in HKSAR v Yip Wai Yin[16], Zervos JA has the following observations :

“ … Even though a person had a mistaken belief as to the type of drug involved, the extent to which this should be reflected in his sentence, if at all, depended upon the circumstances of the case, particularly whether he had exercised any degree of care in knowing about the type of drug involved;

… if it was shown that the exercise of only ‘a small degree of curiosity, enquiry or care’ would have revealed the true nature of the drug, then the mitigating effect of the belief, if accepted, would be small;

… what a sentencing court is essentially required to do when addressing an issue of mistaken belief is to approach it by looking at what the defendant had in fact done, and also at what he thought he was doing, whilst emphasizing that a court must take into account the actus reus, and its consequence, as well as the defendant’s mens rea; and

… If the assertion is manifestly false, the court may reject it without hearing evidence.”

61.  Whilst the case of Yeung Hoi Ting[17] concerned mistaken belief regarding the nature of drug, in my view the consideration factors are in general applicable in a case alleging mistaken belief regarding quantity.

62.  Nevertheless, I have to bear in mind the present case is one of Conspiracy to traffic in dangerous drug, not Trafficking in dangerous drug, and importantly, by reason of what I have said, the agreement was to traffic in 1,000 grammes of ketamine.

63.  I note that the parcel was heavier than the agreed weight by at least 2 kilograms.  However, it would not be surprising for a person handling it to form a view that there was, in additional to the drug, legitimate stuff inside to avoid detection. 

64.  The parcel was posted from abroad, well packed, D2 was the one who received it and as soon as he had received it he was arrested.

65.  D3 was the person behind.  He had no opportunity to see or inspect the parcel.  There is evidence indicating that all along in his mind it involved 1 kilogram.

66.  In a case of conspiracy where the evidence reveals existence of a conspiracy but not for a specific quantity, the court is entitled to consider sentence taking into account all relevant factors beyond the quantity of drug actually found.

67.  The present case is not a case of conspiracy to traffic in a dangerous drug whilst there is no evidence as to the exact ambit of the unlawful agreement.  In the present case, for the reasons stated above, I have to consider the matter on the basis that the unlawful agreement was in relation to traffic in 1 kilogram of ketamine.  There is no evidence that when the defendants performed acts pursuant to the agreement there was anything which would have caused either of them to have an idea of the exact quantity of the drug in the parcel.

68.  Whilst quantity of the drug is an important factor in consideration of the sentence, the court is entitled to take into account other relevant circumstances.

69.  Evidence reveals that D2 and D3 must be aware that they were involved in a conspiracy which involved other people. Although the agreement in question was in relation to 1,000 grammes, common sense dictates that quantity in this illicit trade would not be that exact.  The defendants must be taken to have agreed to traffic in a substantial quantity of ketamine though, in my view, I am not entitled to sentence them by reference to a quantity significantly exceeding the agreed quantity.

70.  Having considered the whole circumstances, bearing in mind the allegation is confined to one day, and having regard to cases such as SJ v Hii Siew Cheng[18], HKSAR v SIN CHUNG KIN[19] and HKSAR v CHAN Ka Yiu[20], I adopt 14 years 9 months as the notional sentence after trial for D2.

71.  As regards D3, I adopt 16 years as the notional sentence after trial, for the following two main reasons :

(1)  my finding that his position in the hierarchy was higher than that of D2; and

(2)  this is his second conviction for the offence relating to trafficking in dangerous drug for which in my view an enhancement of about 6 months is warranted.

72.  The cases involved a parcel posted from Germany.  I have considered whether this should be taken into account in deciding the role and culpability of each defendant.

73.  In consideration, I take into account HKSAR v SK Wasim[21], in which the Court of Appeal held that :

“for an international element to be an aggravating factor, it must go to the aggravation of the offence as alleged against the defendant”.

74.  From the facts which both defendants admitted, I do not find there is sufficient material so that I can draw the inference that they were knowing parties to the importing of the drug or that they were assisting or facilitating such importation.  As D2 received the parcel, he might have a chance to learn that it came from abroad but as soon as he received the item he was arrested. D3 occupied a higher position in the hierarchy.  However, having considered the whole circumstances as revealed in the facts relevant to him, not without reservation I decide against the finding that he had the required knowledge.  I therefore do not think that the international element should be reflected in deciding the role and culpability of the two defendants.

HCCC 247/2021

D2

75.  In this case, D2 pleaded guilty to one charge of Trafficking in dangerous drugs, which were 0.08 gramme of a solid containing cocaine, 0.02 gramme of a solid containing ketamine and cocaine and 0.03 grmme of a solid containing ketamine. 

76.  Cocaine is obviously the more serious drug for the purpose of sentence.  I have to take into account that two type of drugs were involved but at the same time note that the quantity of both types was very small.  In my judgment, 20 months is the appropriate notional sentence after trial.

Consideration of mitigation submission

Guilty plea

77.  D2 pleaded guilty before a Magistrate in HCCC 247/2021 and D3 also did so in HCCC 356/2020[22], the defendant is each entitled to a 1/3 discount for the relevant charge.

78.  In the other case, HCCC 246/2021, D2 only pleaded guilty to the count after the case had been set down for trial and a firm indication of guilty plea was only made pursuant to further plea bargain raised in a PTR hearing about a month before the trial.[23]

79.  In this regard, I note that, in August 2021, whilst rejecting a plea bargain proposal by D2, DOJ indicated that they were prepared to take the same approach as regards D3 to amend the charge to Conspiracy to trafficking in 1 kilogram of ketamine.  No further action had been taken until November 2023 that in the Case Management Hearing the defence proposed a plea bargain in similar terms.

80.  Having regard to cases in particular HKSAR v Ngo Van Nam[24], and submission of Mr. Yuen, in my judgment, D2 is entitled to a discount of 20% for his late guilty plea in HCCC 246/2021.

Effect of young age on the sentence

81.  D2 was of the age of 17 years at the time of the offence and he had a clear record.

82.  Whilst section 109A(1)  of the Criminal Procedures Ordinance is not applicable, I bear in mind the spirit behind the provision and the desire in general to foster rehabilitation for young offenders.  On the other hand, the offences which D2 committed were extremely serious. I find his age carries little significance in mitigation of sentence.

Discount on other grounds

D2

83.  For the assistance which D2 provided to the officer, I will give him a further discount of about 4% for each charge. 

D3

84.  D3 had provided Non-Prejudicial Statement to the authority and was listed as a witness for the trial against D2.  Eventually D2 pleaded guilty.  Having assessed the importance of the act of D3, I will give him further discount so that his total discount is 45%.

Total discount for the defendants

85.  Having considered the whole of the circumstances, including what Counsel said on behalf of each defendant, in my judgment what I have said is the extent of discount each defendant is entitled to. 

Sentence

D2

86.  In relation to the case of HCCC 246/2021, which concerns a count of Conspiracy to Traffic in a Dangerous Drug, for the reason I have mentioned, I sentence D2 to an immediate imprisonment term of 11 years 3 months.

87.  In relation to the case of HCCC 247/2021, which concerns Trafficking in the drugs found at his home, I sentence D2 to an immediate imprisonment term of 1 year.

88.  Further, I order the sentences of both cases to run concurrently, D2 is to serve a total sentence of 11 years 3 months for the two cases.

D3

89.  In relation to the case of HCCC 356/2020, which concerns a count of Conspiracy to Traffic in a Dangerous Drug, for the reasons I have mentioned, I sentence D3 to an immediate imprisonment term of 8 years 9 months.