HKSAR v. FUNG CHEUK KEI

HCCC 241/2024

[2025] HKCFI 4372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 241 OF 2024

______________

______________

_________________________________

REASONS FOR SENTENCE

_________________________________

The Charge

1.  On 25 July 2024, the defendant pleaded guilty in the magistracy to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The count involved 4 kilogrammes of a solid containing 3,104 grammes of cocaine.  On the same day, the defendant admitted a Summary of Facts dated 5 April 2024 and he was committed to the Court of First Instance for sentencing.  Today, before this Court, the defendant confirmed his guilty plea to the trafficking count and his admission of the Summary of Facts.

Facts Admitted

2.  The facts of the case can be summarized as follows. 

3.  On 11 January 2023, the defendant was seen going into a room which was under Police observation in Kwun Tong (“the Room”).  When he came out 17 minutes later, he was intercepted by Police officers who were lying in ambush in the vicinity.  The defendant tried to take flight but was subdued at the scene.  A body search on the defendant found two key cards for accessing the Room.

4.  On the strength of a search warrant, Police officers searched the Room and found, inter alia, a carton box in which there were two boxes marked “water purifier” containing a total of four blocks of substance.  The four blocks were subsequently tested and found to be dangerous drugs, the subject matter of the trafficking charge.

5.  The Police also found in the Room four identical copies of a “Commercial Invoice” in which the issuer was stated to be “Lam Ka Wai” of the Room, and which was addressed to someone in Australia (“the Recipient”) regarding two water purifiers; and three identical copies of a shipping label addressed to the Recipient with the description of “water purifiers”.

6.  Upon arrest and under caution at the scene, the defendant admitted that he had been told by “Ah Shing” to go up there to bring some goods for SF Express staff to send away.

7.  On 9 January 2023, a logistics company had received a commercial order to deliver two water purifiers from a person named “Lam Ka Wai” at the Room to the Recipient in Australia.  SF Express was arranged to deliver the goods from the Room to the logistics company.  Thus, a staff of SF Express arrived at the Room on 11 January 2023 to collect the goods but by then the Police had already subdued the defendant and entered the Room to investigate the case.

8.  The street value of the cocaine seized was estimated to be $3,572,000 (in powder form) or $5,044,000 (in crack form).

9.  In the Summary of Facts, the defendant also admitted that at the material time, he possessed all the dangerous drugs for the purpose of unlawful trafficking.

Background and Mitigation

10.  The defendant is now aged 24 and single.  He completed his education up to Form 4 level.  His father is aged 61 and works as a dump truck driver and his mother, aged 45, is employed as a waitress.  The defendant is the only child in the family.  In 2010, his parents divorced and he was raised by his paternal grandfather and aunt.  At the age of 18, he moved to live with his mother but then about a year later, he moved out to live alone. 

11.  In mitigation, counsel for the defendant, Miss Annie Lai, informed the Court that before his arrest for the present case, the defendant had worked as a transportation worker, but from January 2022, he became unemployed due to redundancy during the Covid 19 pandemic.  As he was obliged to pay a monthly rent of $7,500, his financial plight led him to commit the present offence in order to earn quick money. “Ah Shing” had asked him to take the dangerous drugs out from the Room and hand them over to the SF Express staff at the doorway.  Miss Lai invited the Court to take the view that the defendant played a role no more than that of a local courier.

12.  The defendant has a previous conviction of unlawful possession of dutiable goods in 2021 for which he was fined $5,000.  As it is relatively minor and unrelated to dangerous drugs, I shall disregard it in sentencing the present offence.

13.  Miss Lai submitted three letters to the Court in mitigation, written by the defendant himself, his mother and his aunt respectively.  In his own letter, the defendant indicated his remorse, his realization of the grave and serious mistake of committing the offence and his willingness to bear the legal consequences of his crime.  His mother wrote to express her regret and pain for failing to properly guide the defendant in his up-bringing.  His aunt, with whom the defendant had lived before he turned 18, wrote to confirm that the defendant was filial and would accompany her whenever she had to visit the doctor; and that he is now deeply remorseful for the offence.  They all pleaded for the Court’s leniency in sentencing.  

Sentence

14.  In sentencing the defendant, I will follow the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

15.  The first step is to identify the relevant guideline band applicable to the quantity of the dangerous drugs in question.  In the present case, Miss Lai accepted that with the total quantity of 3,104 grammes of cocaine, the starting point should be a term of about 21 years and 10 months’ imprisonment: see HKSAR v Huang Ruifang [2025] 2 HKLRD 138 at §62. 

16.  The second step is to assess the role and culpability of the defendant based upon the Summary of Facts before the Court.  In short, the defendant was instructed to take out the dangerous drugs from the Room and hand them over to the SF Exchange staff for onwards delivery.  On the available materials before the Court, I am not satisfied that the defendant was involved in arranging the dangerous drugs to be delivered to Australia.  I accept Miss Lai’s submission that the intended delivery was probably arranged by another person, namely, “Lam Ka Wai” who was named in the commercial invoice found in the Room and in the commercial order sent to the logistics company; and that there is a possibility that the defendant was not aware of the ultimate destination of the drugs being Australia, although he was to take part by handing over the drugs to the SF Exchange staff for a local delivery to the logistics company. 

17.  The third step is to decide where within the relevant guideline band the defendant should come.  In my assessment, the defendant’s role was no more than that of a local courier.

18.  The fourth step is to deal with aggravating factors, if any.  Other than the huge quantity of dangerous drugs involved, I do not see any aggravating factor in the present case.

19.  The fifth step is to consider the mitigating factors, if any.  Miss Lai accepted that given the seriousness of the offence, the only strong mitigating factor in the defendant’s case is his guilty plea which was entered at the earliest opportunity.  Because of that, I will give the defendant a discount of slightly more than one-third to bring the starting point of 21 years and 10 months down to a final sentence of 14 years and 6 months’ imprisonment.

20.  Lastly, I consider this sentence fair, just and balanced in all the circumstances of the offence and the defendant.  Accordingly, the defendant is sentenced to imprisonment for 14 years and 6 months.

Exhibits

21.  An Order in terms of the Prosecution’s application, not objected to by the Defence, was granted to dispose the exhibits.