HKSAR v. CHO KIN CHEUNG AND ANOTHER

HCCC 325/2024

[2025] HKCFI 1797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 325 OF 2024

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REASONS FOR SENTENCE

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1.  The defendants each pleaded guilty to one joint count (Count 2)  of trafficking in dangerous drugs[1] before Magistrate Mr. Jeffrey Sze, admitted to the summary of facts and were committed, on 7^th October 2024, to the Court of First Instance for sentence. They confirmed their pleas and admissions before me and the convictions were duly recorded.

2.  Particulars of Count 2 are that the defendants on the 13^th February, 2023, at Flat C, 61^st Floor, Tower 3, Primrose Hill, No. 168 Kwok Shui Road, Tsuen Wan, New Territories, unlawfully trafficked in dangerous drugs, namely 201.61 grammes of a solid containing 175.34 grammes of cocaine, 64.17 grammes of a solid containing 37.59 grammes of ketamine and 9.24 grammes of a solid containing 7.25 grammes of 2-fluorodeschloro-N-ethyl-ketamine and 0.71 gramme of N,N-dimethylpentylone.

3.  D1 also pleaded guilty to one additional count of trafficking in dangerous drugs that he faces alone (Count 1).  He confirmed his plea and admission to the Summary of Facts before me and his conviction was duly recorded.  

4.  Particulars of Count 1 are that, D1 on 13^th February, 2023, at the lobby on the Ground floor of the same building, unlawfully trafficked in dangerous drugs, namely 26.27 grammes of a solid containing 22.87 grammes of cocaine and 6.17 grammes of a solid containing 5.24 grammes of ketamine.

FACTS

5.  At around 8:13pm on 13^th February, a nervous looking D1 stepped out of the lift and into the lobby of Tower 3, Primrose Hill and was immediately intercepted by police officers who were conducting an anti-narcotics operation there.

6.  Upon search, from his left front trousers pocket were found 10 small packets containing a total of 6.17g of a solid containing 5.24g of ketamine, and 100 small packets containing a total of 14.39 grammes of a solid containing 12.43 grammes of cocaine.

7.  From his right front trousers pocket, a transparent resealable plastic bag containing 31 small packets containing a total of 11.88 grammes of a solid containing 10.44 grammes of cocaine was found.

8.  The dangerous drugs above together form the subject matter of count 1, with a total estimated street value of around HK$23,534.

9.  D1 was arrested and claimed under caution that he got the cocaine from a unit in Tower 3, and that he was going to sell them to make some money.

10.  D1 was taken to Flat C on the 61^st floor of Tower 3.  Police officers were able to gain entry using keys found on D1.  D2 was sitting at the table in the living room alone.

11.  Upon search, all the dangerous drugs particularized in Count 2 were found in the living room, contained in numerous plastic bags.  There were also paraphernalia used in packaging dangerous drugs, including a bowl, 4 digital scales with plastic spoons, empty re-sealable plastic bags, 3 pairs of scissors, 3 plastic bag sealers, and 3 lighters.  DNA materials of both the defendants were found on the digital scales and plastic spoons.

12.  There was a safe placed in the wardrobe in the living room, with cash of HK$20,000 inside.  The total estimated street value of the drugs found inside Flat C is around HK$236,452.

13.  D1 and D2 were arrested and both claimed under caution that the cocaine and ketamine belonged to them and they planned to sell them after they packaged them.

14.  In the subsequent video recorded interview, D1 claimed under caution that Flat C was rented by his mother, that he moved to live there because he had a poor relationship with his family, that he was the only one who had the key to Flat C, and that none of his family members had been to Flat C.  

15.  D2 exercised his right to silence in his own video recorded interview.  

16.  By their respective pleas and admission to the Summary of Facts, they each admitted and accepted that at all material times, they knowingly possessed all the seized dangerous drugs for the purpose of unlawful trafficking.  

PREVIOUS CONVICTION

17.  D1 was convicted of one charge of trafficking in dangerous drugs in October 2020 and was sentenced to detention in the Training Centre.  He was detained for a total of 18 months there, and was released under supervision on 18^th March 2022.  The fact that this is a second conviction for trafficking in dangerous drugs is an aggravating factor to be dealt with.

18.  D2 was convicted of one charge of common assault in January 2021 and was put on 18 months’ probation.  His last and latest conviction was for possession of dangerous drugs, when he was ordered to be detained at the Drug Addiction Treatment Centre on 14^th July 2022.  He was released on 14^th December 2022. The fact that he committed the present offence just about 2 months after his release is an aggravating factor to be dealt with.

D1’S BACKGROUND AND MITIGATION

19.  D1 was born in Hong Kong in February 2005 and is 20 years old.  He had just turned 18 years old when he committed the offences.  He used to live with his parents but had moved out a few months before his arrest in this case because he wanted to be more independent.  

20.  Ms. Vivien Chan, counsel for D1, told the court that D1 did not do well in school and had started to mingle with some bad peers.  He quit school after completing Form 1. He was influenced into taking part in drug trafficking, which led to his detention at the Training Centre in 2020.  He worked as a logistic worker upon release in March 2022, but was made redundant in 2022 as a result of the pandemic.

21.  D1’s so called friends suggested for D1 to traffic in drugs again.  Out of greed and foolishness D1 agreed and committed the present offences, since he did not want to be a burden to his parents.  It is Ms. Chan’s submission that D1 had the role of a foot soldier who did help in the packaging and delivery of the drugs according to instructions.

22.  D1 made two non-prejudicial statements in February and March 2024, providing an address in Mongkok concerning drug trafficking activities.  I am told that nothing came out of that.  

23.  D1 was saddened about the passing of his grandfather and maternal grandparents in the two years that he had been remanded.  He did, however, make good use of the time in custody and completed training courses and obtained certificates for Construction Industry Safety and Auxiliary Medical Service.  D1 and his parents wrote in mitigation seeking leniency.

D2’S BACKGROUND AND MITIGATION

24.  D2 was born in Hong Kong in December 2003 and is 21 years old.  He was 19 at the time of his commission of the offence in Count 2.  He was educated up to Form 2 level, and was working as a vegetable stall worker before his arrest in this case, earning about $15,000 per month.

25.  Mr. Stephen Wong, counsel for D2, submits that D2 committed the offence due to the influence of bad peers who tempted him into trafficking drugs for quick money.  The defendant is now very remorseful.  He had obtained a construction site safety certificate while detained, and will continue with acquiring more skills and learning English while serving his sentence.  

26.  D2, his mother and cousin wrote in mitigation.  D2 speaks of how guilty he feels for putting his parents in this position, having to travel a long way to visit him in detention.  His mother says D2 had always been kind and loving to others, and caring to old folks, although he would have difficulty expressing his love for his siblings and family members.  She blames herself for not being able to communicate properly with her son and neglecting him.  She talks about how D2 suffered from ADHD, which probably played some part in his impulsiveness which led to his commission of the offence.  She sees now that he is truly remorseful and seeks leniency on his behalf.  

SENTENCING

27.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.

COUNT 2 AND SENTENCING OF D2

28.  Given the negligible quantity of N, N-dimethylpentylone in count 2, which would have no practical effect on the final sentence, I will disregard this drug when sentencing the defendants on this count.  

29.  The sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Huang Ruifang [2025] HKCA 234, and HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1 are applied as follows.  

30.  Given the proximity in time and location of D1 being in possession of the dangerous drugs in both counts, D1 will be sentenced for the combined quantity as in accordance with this well-established sentencing approach[2], and dealt with below.

31.  It is not disputed that the sentencing guidelines in relation to ketamine is applicable to 2-fluorodeschloro-N-ethyl-ketamine, a ketamine analogue.  

Step 1: The applicable guideline tariff bands

32.  For the 175.34g of cocaine, and 44.84g of ketamine (37.59+7.25)  the applicable guideline tariff bands are, respectively, “8 to 12 years”, and “4 to 6 years”.

Step 2: The defendant’s role and culpability

33.  Based on the Summary of Facts, both D1 and D2 had taken up the role of courier and storekeeper, and both had engaged in the packaging of the seized dangerous drugs, which added to their culpability, which needs to be reflected in the starting point.

Step 3: The relevant band within the guidelines

34.  Since two different types of dangerous drugs were trafficked, I adopt the combined approach as propounded in HKSAR v Yip Wai Yin [2004] 3 HKC 367.  I have applied the absurdity, conversion and ratio tests as used in HKSAR v Chan Yuk Leong CACC 318/2013 to assist me in arriving at the correct starting point.  

ABSURDITY TEST

35.  On the basis of all 220.18g of narcotics were the more potent drug of cocaine, any combined starting point above 12 years 3 months, without taking into account any aggravating factors, would be regarded as absurdly high.

CONVERSION TEST

36.  The individual starting points for the cocaine and ketamine are 11 years 4 months and 5 years 9 months, respectively.

37.  If the ketamine is converted into cocaine that would yield the equivalent sentence, the total converted quantity of cocaine would be 195.71g, which would have a notional starting point of 11 years 10 months.

RATIO TEST

38.  Based on the proportion of the different drugs involved, the sentence should be about 11 years 5 months.

THE COMBINED NOTIONAL STARTING POINT

39.  Having regard to the above test results, taking into consideration the defendant’s role and culpability as couriers, storekeepers who had taken part in the packaging of the dangerous drugs, I will adopt a combined starting point of 12 years 6 months’ imprisonment, being 8 months (5.6%)  more than the arithmetical application of the guidelines of 11 years 10 months, to reflect the increased culpability of their involvement in the packaging.

Step 4: Aggravating factors

40.  The defendants trafficked in 2 different types of drugs and it is trite law that trafficking in more than one variety of dangerous drugs is an aggravating factor, because the trafficker will be able to cater to a wider market[3]. Given the not too large quantity of ketamine involved, I will enhance the sentence by 6 months (4.2% of 11 years 10 months), taking the combined starting point to 13 years’ imprisonment.

41.  In relation to D2, as mentioned above the fact that he committed the present offence just about 2 months after his release from the DATC is an aggravating factor.  For this, I will further enhance his sentence by 3 months, taking D2’s sentence up to 13 years 3 months’ imprisonment.

Step 5: Mitigating factors

42.  It is trite law that the personal circumstances of the offender would pale into insignificance as a mitigating factor in serious cases such as the present one.  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.”

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

Step 6: Totality

44.  Taking a step back, I find the sentence fair, just and balanced.

D2’S SENTENCE

45.  The sentence for D2 is, therefore, 106 months, or 8 years 10 months’ imprisonment after plea.

SENTENCING OF D1

46.  In relation to D1, as mentioned above, I will proceed to sentence him for all the drugs in both count 1 and 2.

47.  The total quantity of cocaine and ketamine becomes 198.21g and 50.08g, respectively.

48.  The applicable tariff bands are “8 to 12 years” and “6 to 9 years”, respectively.

49.  The role and culpability of D1 is that of a courier and storekeeper who had taken part in the packaging of the drugs, thus a starting point higher than the arithmetical application of the tariff bands is called for.

50.  The individual notional starting point for the cocaine and ketamine are 11 years 11 months, and 6 years, respectively.

51.  Applying the absurdity, conversion and ratio tests yielded the results of 12 years 7 months; 12 years 3 months; and 11 years 9 months.

52.  Bearing in mind the role and culpability of D1, I would adopt a notional starting point of 12 years 11 months, being 8 months (5.6%)  above the converted arithmetical starting point of 12 years 3 months.

53.  For the trafficking of 2 different types of dangerous drugs, I will enhance this starting point by 6 months (4.2% of 12 years 3 months), taking it up to 13 years 5 months’ imprisonment.

54.  As mentioned above, this is D1’s second conviction for trafficking in dangerous drugs, and he committed the present offence not too long after his supervised release from the Training Centre.  For this, I will enhance his sentence by 4 months, taking it up to 13 years 9 months’ imprisonment.  

55.  D1 is granted the full one-third discount for his guilty plea, leading to a sentence of 9 years 2 months’ imprisonment.  I repeat what is stated above in relation to the defendant’s personal circumstances not being a mitigating factor in serious cases such as the present one.

56.  Therefore, for count 1 and 2, D1 is sentenced to concurrent sentences of 9 years 2 months’ imprisonment after plea[4].

FINAL SENTENCES

57.  D1 is sentenced to a total sentence of 9 years 2 months’ imprisonment for Count 1 and 2 after plea.

58.  D2 is sentenced to 8 years 10 months’ imprisonment for Count 2 after plea.