HKSAR v. WONG CHEUK HIN

HCCC 197/2024

[2025] HKCFI 1947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 197 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 counts of trafficking in a dangerous drug[1] (count 1 and 3)  and one count of manufacturing a dangerous drug[2] (count 2)  before Magistrate Mr. Jeffrey Sze and was committed, on 16^th January 2025, to the Court of First Instance for sentence. He confirmed his pleas and admission to the Summary of Facts before me, and his convictions were duly recorded.

2.  Particulars of count 1 are that, the defendant on 16^th July, 2023, near Lamppost No. EB 2499, Lam Tsuen San Tsuen, Tai Po, New Territories, together with other persons unknown, unlawfully trafficked in a dangerous drug, namely 60.7 grammes of a solid containing 53.6 grammes of cocaine.

3.  Particulars of count 2 are that he on or about 16^th July, 2023, at the premises at 1^st Floor, No. 131A Lam Tsuen San Tsuen, Tai Po, New Territories, together with other persons unknown, unlawfully manufactured a dangerous drug, namely cocaine.

4.  Particulars of count 3 are that he on 16^th July, 2023, at the premises at 1^st Floor, No. 131A Lam Tsuen San Tsuen, Tai Po, New Territories (“the Premises”), together with other persons unknown, unlawfully trafficked in dangerous drugs, namely, 1,028.77 grammes of a solid containing 894.21 grammes of cocaine, 460 millilitres of a liquid containing traces of cocaine, and 1.92 grammes of a solid containing 1.74 grammes of cocaine hydrochloride.

FACTS

5.  The defendant was, at all material times, the sole tenant of the Premises, against which the police had mounted an anti-narcotics operation on 16^th July 2023.

6.  The defendant was seen coming out of the Premises at about 3:27pm, carrying a black nylon bag (“the nylon bag”).  He was intercepted when he was about to get into a parked vehicle nearby.  The defendant dropped the nylon bag and tried to flee but was unsuccessful.  Upon search, two packs of crack cocaine, with a total of 60.7 grammes of a solid containing 53.6 grammes of cocaine, were found inside.  They would become the subject matter of count 1.

7.  The defendant was arrested for trafficking in dangerous drugs.  He claimed under caution that he had taken out the ‘coke’ for selling.

8.  At about 3:40pm, the defendant was brought back to the Premises.  Police officers used the keys found on the defendant to gain entry and executed a search warrant issued against the Premises.  

9.  Upon search of the Premises, the following items were found:

(a)  3 digitial scales containing totally 0.01 grammes of a solid containing cocaine;

(b)  6 plastic bags containing crack cocaine (totally 65.3 grammes of a solid containing 41.9 grammes of cocaine);

(c)  A metal pot containing 0.06 grammes of a solid containing cocaine and 460 millilitres of a liquid containing traces of cocaine;

(d)  An induction cooker containing traces of a solid containing cocaine;

(e)  A ceramic stew pot containing 0.13 grammes of a solid containing 0.12 grammes of cocaine;

(f)  A ceramic bowl and a spoon containing totally 0.05 grammes of a solid containing cocaine;

(g)  A plastic container containing 0.01 grammes of a solid containing cocaine;

(h)  A ceramic bowl and a metal sieve containing totally 0.21 gramme of a solid containing 0.19 grammes of cocaine;

(i)  A wooden rolling pin containing traces of a solid containing cocaine;

(j)  A pair of scissors containing traces of a solid containing cocaine hydrochloride;

(k)  An opened paper box containing soda powder (sodium bicarbonate);

(l)  46 plastic bags containing crack cocaine (963 grammes of a solid containing 852 grammes of cocaine);

(m)  A plastic bag containing phenacetin (a Part I poison);

(n)  11 plastic bags containing totally 1.89 grammes of a solid containing 1.74 grammes of cocaine hydrochloride; and

(o)  Two pieces of plastic wrapping containing 0.03 grammes of a solid containing cocaine hydrochloride.

10.  Government chemist subsequently confirmed the total narcotic contents found in the Premises is as particularized in count 3.

11.  Furthermore, upon inspection and examination of the exhibits seized, it is the Government Chemist’s opinion that the chemicals and paraphernalia seized from the Premises were items commonly associated with the process of making cocaine base from cocaine hydrochloride, and the process could have taken place at the Premises.  This would become the basis of prosecution for count 2.

12.  The defendant was arrested for manufacturing of dangerous drugs.  He claimed under caution that he did it because he had no job but wanted to make money.  The defendant claimed he got the ‘raw coke’ from other people and he would sell the ‘cooked coke’ for money.

13.  In his subsequent video recorded interview, the defendant claimed under caution that he rented the Premises on 19^th June 2023.  He was the only one with the keys.  He decided to manufacture drugs to make money after his child was born on 19^th May 2023.  It was a person he referred to as ‘Ah Go’ who introduced him to the manufacturing.

14.  The defendant would communicate with Ah Go via WhatsApp, and it was he who taught the defendant how to make crack cocaine via video calls.  Ah Go would tell the defendant where to pick up the ‘raw cocaine’ over the phone.

15.  The defendant would boil the ‘raw cocaine’ with water and soda powder, and then rinse and cool the mixture to make crack cocaine.  Ah Go would then arrange for someone to take over the finished product from the defendant for onward selling.

16.  The defendant claimed that the 2 packs of crack cocaine inside the nylon bag were made by him and they belonged to him.  As instructed by Ah Go, he was to drop them off for collection by someone arranged by Ah Go.

17.  The defendant also claimed that he owned all the manufacturing apparatus at the Premises, and that the crack cocaine found there were made by himself using the ‘raw cocaine’ that he had collected that day at Shan Tong Tsuen in Tai Po, as instructed by Ah Go.

18.  The defendant was supposed to be paid $16,000 for undertaking to manufacture and traffic in the drugs, but he had not yet been paid.  

19.  By his admission of the Summary of Facts, the defendant had accepted that he had, at all material times, knowingly possessed all the seized drugs for the purpose of unlawful trafficking, and that he had manufactured dangerous drugs at the Premises.  

PREVIOUS CONVICTIONS

20.  The defendant has 3 previous convictions.  The first was for possession of dangerous drugs when he was sentenced to 15 months’ probation in August 2016.  His second conviction was also for possession of dangerous drugs, for which he was sentenced to 8 months’ imprisonment suspended for 3 years, and a fine of $5,000.  His third conviction was for the offence commonly known as ‘money laundering’.  He was sentenced to 6 months’ imprisonment for that offence in March 2024, and his previously suspended sentence was ordered to be activated in full and to be served consecutively.  I was told that the defendant had finished serving the said sentences on or around 4^th November 2024.

BACKGROUND AND MITIGATION

21.  The defendant was born in Hong Kong in August 1999 and is 25.  He was educated up to Form 3 level. He got married in September 2022 and has a 2 year old son who was living with his wife and parents.  

22.  The defendant worked as an elevator maintenance worker after leaving school.  He changed job to become a driver in 2023, earning around $15,000 per month.  Mr. Davies, counsel for the defendant, told the court that the defendant committed the current offences due to great financial difficulty after the birth of his son in 2023.

23.  The defendant wrote in his letter of mitigation about how getting married and having a son had caused him to become anxious and depressed since he did not know how to handle the situation.  After discussing his financial problems with his friends who told him about the drug manufacturing job, he foolishly decided to solve his money problems the wrong way.  

24.  He regrets what he had done and is ashamed to face his family.  Yet, they did not give up on him and have continued to offer him guidance.  The defendant will try to turn a new leaf and had asked his family to buy him exercise books for self-studies.  He promises to use his time in prison wisely, and try his best to repay society and his family by way of achievements while in detention.  

25.  The defendant’s wife wrote to tell the court how the defendant is a man with a good heart, and who has been taking care of her since they were secondary school mates.  She wrote about how the defendant had worked really hard to make ends meet after the arrival of their son.  She believes the defendant has now learnt an unforgettable lesson and truly wants to reform, and wishes for leniency so that the family can be reunited.

26.  The defendant’s parents blame themselves for not bringing up their son properly, which led to his committing the different offences over the years.  They seek leniency, for the court to take into consideration how the defendant has been in remand since his son was not even a month old.

27.  Mr. Davies submitted that the court should consider reducing the sentence in the present case when considering the totality principle in relation to the earlier sentences, which were passed in March 2024, which was after the detention of the defendant for the present case had started on 16^th July 2023.

SENTENCING

28.  The maximum sentence on conviction upon indictment for trafficking in, and manufacturing of, dangerous drugs is both of life imprisonment and a fine of $5 million.

29.  Although the drugs in counts 1 and 3 were found at two locations, which led to two separate charges, given the fact that it is obvious that the defendant’s possession of the drugs are directly connected, the defendant is to be sentenced for trafficking in the combined quantity of the drugs found[3].

APPLYING HERRY JANE YUSUPH

30.  The guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[4], as read in conjunction with HKSAR v Lee Ming Ho[5] are applied as follows.

Step 1: The applicable guideline tariff bands

31.  The sentencing guidelines as updated in the case of HKSAR v Huang Ruifang [2025] HKCA 234 for cocaine are applied.  It is not disputed that the guideline tariff for cocaine is applicable to cocaine hydrochloride.

32.  The individual tariff bands for 53.6g and 894.21g of the drugs in count 1 and 3 are, respectively, “8 to 12 years” and “16 to 20 years”.

33.  For the combined quantity of 949.55g of narcotics, the applicable tariff band is “16 to 20 years”.

Step 2: The defendant’s role and culpability

34.  Based on the defendant’s video recorded interview admissions, it is an irresistible inference that he had taken part in the manufacturing of the drugs found from the nylon bag and in the Premises.

35.  To ensure the defendant is not doubly punished for his trafficking and his manufacturing of the same drugs, I will adopt an arithmetical starting point on the basis that the defendant was a courier and storekeeper of the drugs in count 1 and 3.

Step 3: The relevant band within the guidelines

36.  As such, the individual starting points would be 8 years 1 month for count 1, and 17 years 7 months for count 3.

37.  For the combined quantity, I would adopt a starting point of 17 years 9 months’ imprisonment.

Step 4: Aggravating factors

38.  The defendant had committed the present offence whilst being the subject of a suspended sentence. However, since the suspended sentence had been ordered to be activated in full and to be served wholly consecutively to the sentence in the possession of dangerous drugs charge, I will not enhance the defendant’s present sentences on this basis so as to avoid double punishment.  

Step 5: Mitigating factors

39.  As much as one may sympathize with the defendant’s personal circumstances, as McWalters J stated clearly in the case of HKSAR v Bayanmunkh [2012] 2 HKC 233:

“…no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers.”

40.  The only mitigating factor is, therefore, the defendant’s timely guilty pleas, for which he will be granted the usual one-third discount.

Step 6: Totality

41.  I have looked at the combined notional sentence after trial of 17 years and 9 months, and I am of the view that it is a fair, just and balanced sentence in the circumstances.

SENTENCES FOR COUNT 1 AND 3

42.  The global sentence for the two counts after plea is, therefore, 11 years 10 months’ imprisonment.

43.  To achieve this sentence, in relation to count 1, I sentence the defendant to 64 months after plea, in relation to count 3, to 140 months after plea.  I order 2 months of the sentence in count 1 to be served consecutively to the 140 months sentence in count 3, the balance concurrently, leading to the combined sentence of 11 years 10 months’ imprisonment.  

COUNT 2: MANUFACTURING DANGEROUS DRUGS

44.  In the case of HKSAR v Sum Ka Wa [2024] HKCA 760, the Court of Appeal made the following general observations about sentencing in cases where large manufacturing and trafficking operations were inextricably linked.

45.  First, the sentencing judge must retain some overall perspective to avoid distorted and extremely long sentences.

46.  Secondly, the offence of manufacturing is to be regarded even more seriously than the offence of trafficking, because “the amount of drugs found in the premises where manufacturing is taking place will invariably be a small part, perhaps only a fraction, of the drugs actually manufactured and the capacity of the operation.”

47.  The third observation is that caution should be exercised when ordering partly consecutive and partly concurrent sentences, lest the resulting sentence be too great for the overall criminality of the defendant.  In any event, be it making other sentences concurrent to the principle offence or adding to it, the sentencing court must always apply common sense and have an overall appreciation of the criminality involved, so as to arrive at the proper sentence.  

48.  The Court then proceeded to state that, since the quantity of dangerous drugs in the two trafficking charges were taken into consideration when assessing the criminality of the manufacturing count:

“…it was important that the making of partly consecutive sentences did not inflate the overall sentence when using the same quantity of dangerous drugs to arrive at both the starting point for trafficking and the starting point for manufacturing. The better and safer course, given that counts 2 and 3 (the trafficking charges)  obviously derived from, and were inextricably linked with, count 4 (the manufacturing count), was to make all sentences concurrent.”

49.  In relation to the size of the operation in the present case, I would like to refer to the following two paragraphs in the judgment of Yeung VP in HKSAR v Cheng Chi Wai (鄭志偉)  [2021] HKCA 181, CACC 50/2019:

“33. Should there be information which shows that the drug-manufacturing act is a one-off rather than a continuous act, a starting point slightly higher than the sentence for ‘trafficking’ in the same quantity of ‘drugs’ may be considered appropriate. However, this Court agrees with the approach adopted in Wong Chun Ping and reiterates that the starting point for ‘drug-manufacturing’ offences should not be less than 10 years’ imprisonment unless the act of drug-manufacturing was just nominal, for instance, only a one-off mixing and diluting of a small quantity of drugs without involving any sophisticated paraphernalia or a large amount of chemicals as raw materials.

34. If the drug-manufacturing act is a continuous act spanning a period of time, and the drug-manufacturing workshop is of considerable scale and productivity involving a large amount of chemicals used for drug-manufacturing as well as a not insignificant quantity of high-standard drug-manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial.”

50.  In the present case, I find that based on the available facts, the only reasonable inference must be that the manufacturing that had taken place in the Premises was not a nominal, one-off event.  I find that but for the intervention of the police, the defendant would have continued with the manufacturing, with the defendant continuing to play a significant role in the manufacturing.  

51.  Based on the quantity of raw materials and the paraphernalia found in the Premises, I find that the manufacturing operation can be regarded as a small to medium sized operation.

52.  Given the defendant’s role and culpability, and considering all the circumstances of the offence and the above cited sentencing principles, I adopt a starting point of 20 years’ imprisonment against the defendant on count 2.  

53.  I repeat what is said above in relation to the personal circumstances of an offender in serious cases not being considered a mitigating factor.  The only mitigating factor is the defendant’s timely guilty plea.

54.  This sentence is, therefore, discounted to 13 years and 4 months’ imprisonment after plea.

TOTALITY

55.  Taking a step back, I order all 3 sentences to be served concurrently, making a final total sentence of 13 years 4 months’ imprisonment for the 3 counts after plea.  

56.  In relation to the sentence that the defendant had served for the possession of dangerous drugs conviction and the money laundering conviction, since neither of the offences had any direct connection to the factual matrix of the present offences and are of entirely different nature, the sentences ought in principle to be served consecutively, subject only to the principle of totality.  

57.  On totality, the Court of Appeal stated the following in the case of HKSAR v Ngai Yiu Ching, CACC 107/2011:

“22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment but it is also a tool by which to ensure that ‘the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.’: R v K M [2004] NSWCCA 65 at paragraph 55.”

58.  I have considered whether an order for the sentences to be served consecutively would result in a crushing sentence and find that it will not be any more crushing than the sentence in the present case already is, which is, nevertheless, the proper sentence.

59.  The defendant committed the money laundering offence while under a suspended sentence.  Given the timing of the conviction of the money laundering offence, and upon confirmation by Mr. Davies, the defendant had committed the present offences after the money laundering offence.  There is no suggestion that the possession of dangerous drugs, the money laundering and the present offences were in any way connected.  

60.  Given the disregard for the law that the defendant had demonstrated, I find that, in order to sufficiently deter and denounce this and other defendant, I would have ordered the sentences to run wholly consecutively had I been sentencing the defendant for the money laundering and breach of suspended sentence on the same occasion.  

61.  As such, having considered the principle of totality, I will exercise my discretion and not reduce the present sentence, which remains at 13 years and 4 months’ imprisonment.