HKSAR v. CHEUNG HO HEI

HCCC 251/2025

[2026] HKCFI 1263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 251 OF 2025

________________________

_________________________________

REASONS FOR SENTENCE

_________________________________

THE CHARGES

1.  The Defendant, CHEUNG Ho Hei, pleaded guilty in the Magistrates’ Courts to three charges and was committed to this Court for sentence.  The charges are:

· Charge 1 – Trafficking in a Dangerous Drug: On 1 April 2023, in Tin Shui Wai, he unlawfully trafficked in one kilogramme of a solid containing 877 grammes of cocaine hydrochloride.

· Charge 2 – Trafficking in Dangerous Drugs: On the same date, at Room 1227, Ping Yin House, Ping Yan Court, Tin Shui Wai (“the premises”), he unlawfully trafficked in 109.29 grammes of a solid containing 61.5 grammes of cocaine and 0.14 gramme of solid containing 0.13 gramme of cocaine hydrochloride.

· Charge 3 – Manufacture of a Dangerous Drug: On or about the same date, at the premises, he unlawfully manufactured cocaine.

2.  The Defendant appears before me today for sentence, having confirmed his guilty pleas to all three charges and admission of the Summary of Facts.

THE FACTS

3.  On 1 April 2023, during a Customs operation, officers observed the Defendant acting furtively.  He entered Ping Yan Court and was intercepted outside Ping Yin House, and found to be carrying a rucksack containing a 1 kilogramme slab of cocaine hydrochloride (later examined to contain 1 kilogramme of a solid containing 877 grammes of cocaine hydrochloride, and was arrested.  He identified a set of keys to the premises to the officers.

4.  A search of the premises and a room inside the premises revealed a drug processing setup.  Seizures included cocaine and manufacturing apparatus, which contained small amount of traces of cocaine (0.77 gramme of cocaine and 0.13 gramme of cocaine hydrochloride) and 2 plastic bags containing 109.34 grammes of a solid containing 61.55 grammes of cocaine.

5.  The drug manufacturing paraphernalia includes metal pots, a sieve, electronic scales, scissors, spoons, ceramic cups, paper bowels and a cassette cooker and there was a quantity of 414 grammes of sodium bicarbonate (baking soda).

6.  The officers also seized a Tenancy Agreement which is to run from 1 March 2023 for 2 years in the name of a Ms. Sung, who later confirmed she only rented the flat on the Defendant’s behalf and did not pay the rent.

7.  The Government Chemist, Dr. Tang, attended the scene and opined that the setup was consistent with the conversion of cocaine hydrochloride into cocaine base using sodium bicarbonate, water, and heat—a process for manufacturing “crack” cocaine and the two plastic bags of cocaine could be the final product of the process.

8.  The total estimated street value of all cocaine seized was approximately HK$1,211,574.

DEFENDANT’S BACKGROUND AND MITIGATION

9.  The Defendant is a 25-year-old single male with a Form 5 education.  At the time of the offences, he worked as a skewer chef, earning HK$18,000 per month.  He is the primary breadwinner for his family, contributing HK$8,000 monthly to support his father (55, part-time taxi driver) and mother (51, housewife recovering from breast cancer).  He has an unemployed elder brother (27).  He lived with his girlfriend in a separate apartment, sharing the HK$11,500 monthly rent.

10.  Mitigation Letters from family, teachers, and a social worker portray him as having a fundamentally positive character.  As a child, he was identified as having high potential and participated in gifted education programs.  He has maintained good relationships with his former teachers.

11.  The Defendant has one unrelated previous conviction for Dangerous Driving (2021) for which he was fined and disqualified from driving for 6 months.

12.  I have considered the mitigation presented by Ms. Vivian Wong, Counsel for the Defendant, which focuses on his personal circumstances, his limited role in the offences, and his strong rehabilitation prospects.

13.  It is emphasised that the Defendant has pleaded guilty at the earliest opportunity, thereby saving considerable court time and resources.  He has expressed remorse for his actions.  

14.  Ms. Wong argues he was not a mastermind but acted under instruction due to financial difficulty. His role is portrayed as subordinate:

· He did not rent the flat in his own name but asked a friend to do so out of apprehension.

· He had not yet received any reward for his actions.

· His involvement in the manufacturing process is already addressed by a separate charge (Charge 3), and defence argues it should not be used to enhance the trafficking sentences to avoid "double-counting." While his role was more than a courier, it was still that of an inferior party.

15.  Ms. Wong refers to leading authorities in trafficking and manufacturing of drugs and invites the court to consider an overall starting point lower than 20 years to ensure the total sentence is just and fair, reflecting the overall circumstances of the case.

16.  The mitigation heavily features 10 mitigation letters and the Defendant’s childhood achievements to show he “went astray” but has the foundation to reform.  While on remand, I was told the Defendant has proactively sought rehabilitation by completing courses (e.g. spreadsheet processing) and engaging in religious studies.  He has also written essays to discourage youth from drugs, showing a desire to reform.

CONSIDERATION OF SENTENCE

Charges 1 & 2 – Trafficking in Dangerous Drugs

17.  The Defendant was found in possession of dangerous drugs both on his person and within a dedicated drug manufacturing workshop.  The drugs in Charge 1 were, on the evidence, intrinsically linked to the manufacturing operation uncovered at the premises in Charge 2.  Following the principle in HKSAR v CHONG Cho-kit (CACC 363/2005, unrep., 12 July 2006), where separate lots of drugs seized from the same incident are treated as part of a whole, I find it appropriate to consider the total quantity of cocaine from both charges for the purpose of fixing a global starting point for trafficking.

18.  The total narcotic content of cocaine involved in the trafficking charges amounts to 938.63 grammes of cocaine/cocaine hydrochloride.  In sentencing, I adopt the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 that was recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150.

19.  Step 1 – Gravity of the Offence: Cocaine is equated with heroin for sentencing purposes.  Applying the revised sentencing guidelines for cocaine set out in the recent authoritative judgment of HKSAR v Huang Ruifang [2025] HKCA 234, and considering the total quantity involved, I assess that a global starting point of 17 years and 9 months’ imprisonment is appropriate for the combined trafficking offences.

20.  Step 2 & 3 – Role and Culpability: The sentencing bands are primarily designed for the least culpable participants, such as couriers or storekeepers.  Ms. Wong submits that the Defendant only acted under instructions and was neither the boss nor the mastermind.  It is true that there is no evidence to prove or infer that the Defendant played a more serious role but be that as it may, his role was still significantly more serious than a mere courier or storekeeper.  He was the sole active operator of a drug manufacturing workshop, directly involved in processing the raw narcotic and the packaging of the drugs.  This places his culpability far above that of a mere courier.  An upward adjustment from the base starting point is therefore warranted to reflect his enhanced role.  However, as the Defendant has already been additionally charged with manufacturing of the drugs inside the premises, in order to avoid double counting, I would not enhance his sentence on the trafficking charges on account of manufacturing but would only impose the basic sentence to reflect his role as a courier or storekeeper as far as trafficking is concerned.  The starting points for Charge 1 and Charge 2 is therefore be still 17 years and 9 months’ imprisonment.

21.  Step 4 – Aggravating Factors: The possession of drugs for trafficking is, in itself, the gravamen of the charge.  The scale of the operation and the Defendant’s role in manufacturing will be reflected in the manufacturing charge.  I identify no separate aggravating factors in the two trafficking charges requiring further enhancement.

22.  Step 5 – Mitigating Factors: The Defendant’s timely guilty plea is a significant mitigating factor.  He is entitled to the conventional one-third discount.  Applying this discount to the starting points of 17 years and 9 months results in a sentence of 11 years and 10 months’ imprisonment for the combined trafficking charges (Charges 1 & 2).

23.  Step 6 – Overall Fairness: I will consider the totality of the sentence after dealing with the manufacturing charge.

Charge 3 – Manufacturing a Dangerous Drug

24.  Manufacturing is an offence of greater gravity than trafficking.  As held in R v Cheung Wai Kwong [1997] 3 HKC 496, a person involved in manufacturing is “nearer to the source of evil than a trafficker” and deserves a heavier sentence.

25.  The approach to sentencing for manufacturing is multifaceted.  As elucidated in HKSAR v Cheng Chi Wai [2021] HKCA 181, the court must consider not only the quantity of drugs seized, but also the length of operation, the scale and productivity of the workshop, the sophistication of the equipment, and the Defendant’s role.  The guidelines do not prescribe a rigid mathematical multiple of the trafficking sentence but require a holistic assessment.

26.  In this case, the evidence points to a fully operational, albeit not industrial-scale, conversion laboratory.  The presence of 414 grammes of chemicals (sodium bicarbonate), dedicated heating apparatus, processing tools, and packaging materials and the decision to rent the premises in terms of years rather than days or months indicates a continuous manufacturing process, not an one-off event.  The Defendant was the cook as well as the sole apparent operator.  While the quantity of finished product seized (61.5 grammes of cocaine base) is a relevant factor, the court must also consider the capacity and purpose of the workshop, which was to produce far more quantity of a more dangerous and profitable form of cocaine for the market.

27.  According to the principles in Cheng Chi Wai, if the manufacturing was continuous, and the workshop was of a considerable scale and productivity, involving a large amount of chemicals and significant manufacturing paraphernalia, the appropriate sentence should not be less than 20 years’ imprisonment, even if the quantity seized was not substantial.  Having considered the above principle and the facts before me, I deem that the appropriate starting point for the manufacturing offence, reflecting its serious nature and the Defendant’s pivotal role, should at least be 20 years’ imprisonment.

28.  For his guilty plea, the Defendant is again entitled to a full one-third discount.  This reduces the sentence for Charge 3 from 20 years (240 months) to 13 years and 4 months’ imprisonment (160 months).

TOTALITY AND CONSECUTIVE ORDERS

29.  I must now consider how these sentences should run.  The Court of Appeal in Cheng Chi Wai affirmed that trafficking and manufacturing charges are of a different nature and reflect distinct criminality.  The Defendant here was not merely manufacturing. One can readily infer that the cocaine hydrochloride carried in Charge 1 and the crack cocaine stored in Charge 2 were all made for the purpose of sale and he was at the same time operating a warehouse of drugs for the purpose of delivery and sale at the premises.  These roles enhance the overall gravity of his conduct.

30.  It is therefore appropriate that part of the sentence for the trafficking offences should be served consecutively to the sentence for manufacturing, to reflect this additional criminal dimension.

31.  However, I must apply the totality principle to ensure the final sentence is not crushing.  A sentence after discount of 13 years and 4 months for manufacturing is already a very lengthy term of imprisonment especially for a Defendant who has never served time in the prison.

32.  Balancing these factors, and to reflect the distinct criminality of the trafficking activities alongside the manufacturing, I finally order that 14 months (1 year and 2 months) of the sentence imposed for the combined trafficking charges (Charges 1 & 2) shall be served consecutively to the sentence for the manufacturing charge (Charge 3).  The remaining of the sentence for Charge 1 & 2 shall run concurrently with the sentence for Charge 3.

SENTENCE

33.  Accordingly, I pass the following sentences:

· Charge 1 and Charge 2 (taken together): 11 years and 10 months’ imprisonment.

· Charge 3: 13 years and 4 months’ imprisonment.

34.  I order that the sentences for Charge 1 and Charge 2 to run concurrently with each other.  I further order 10 years and 8 months of the sentence for Charges 1 and Charge 2 to run concurrently with the sentence for Charge 3.  The remaining 1 year and 2 months of the sentence for Charges 1 and Charge 2 to run consecutively to the sentence for Charge 3.  

35.  No doubt the resulting sentence is significant but taking a step back to review the overall sentence, in my judgment, it is still a just, balanced and fair sentence in the circumstances of the case and in the circumstances of the Defendant.  

36.  The total sentence to be served for Charges 1-3 is therefore 14 years and 6 months imprisonment.