HKSAR v. AU WING KI

DCCC 1607/2024

[2025] HKDC 1766

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1607 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one charge of trafficking in  dangerous drugs, contrary to sections 4(1)(a)  and subsection (3)  of the Dangerous Drugs Ordinance, Cap 134, and one charge of possession of poison included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Cap 138.

2.  The particulars of the offence show the drugs involved, which are quantities of cocaine and heroin and a small amount of herbal cannabis.  The offences arise out of a narcotics operation conducted by Customs Officers on 9 July 2024 at a premises in The Sherwood, which is a property in Tuen Mun, in the New Territories.

3.  The premises were under observation by Customs Officers who saw the defendant enter the relevant flat.  As soon as he entered, the officers revealed their identities and intercepted the defendant and conducted a house search. 

4.  Various items were found.  In the bedroom was a plastic box which contained various plastic bags containing a total, firstly 2.86 grammes of cannabis in herbal form; a further plastic bag with 2.44 grammes of cocaine by narcotic value; a further plastic bag with 6.64 grammes of heroin and a further 1.0 grammes of cocaine; and then a plastic bag containing a solid containing phenacetin.  Furthermore, an investigation of the wardrobe showed foil containers with kitchen towels placed on it, another amount being 1.19 grammes of cocaine, gloves, plastic resealable bags, further quantities of phenacetin, a scale, a sieve, and a sealing machine - all this providing evidence both of the possession of the drugs for unlawful trafficking and the possession of the Part 1 poison found in Charge 2.

5.  There was a tenancy agreement which showed the defendant as the tenant of the premises, and the defendant said he had been renting the flat since November 2023 and also worked as a part-time casual worker.  The actual lease showed he had rented the premises from 17 November 2023, the tenancy continuing to 16 November 2025.

6.  The total value of the dangerous drugs seized from the flat was $10,796.75. 

7.  The defendant did not deny that he unlawfully trafficked in the dangerous drugs found in the premises so I convicted him on Charge 1.  On the 2^nd  charge, the defendant admitted the possession of the Part 1 poison found in the premises and I convicted him accordingly.

8.  As far as the defendant’s background is concerned, that can be found from his antecedent statement.  He is currently, I understand, 33 years of age, a Hong Kong resident, had been working as a casual worker earning 20 to 30 thousand dollars a month prior to his arrest.  He has one relevant conviction, and that is for possession of a dangerous drug in 2017 when he received a sentence of 14 months’ imprisonment.

9.  The defendant does have other convictions but they relate to his driving of vehicles and are not relevant to sentence today. 

10.  Turning to the defendant’s mitigation as advanced.  He has written a letter which highlights the situation with his parents.  He feels responsible for his parents and he expresses remorse.

11.  And I am told from the mitigation that I have received the defendant’s major mitigating factor is his plea of guilty and he admits his role in the offence as being one of a storekeeper and that is evident from the facts which he has admitted.

12.  Turning to the approach to sentence, effectively there are two main cases for the court to consider, the first being HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which sets out the steps the court should generally take in assessing the correct sentence for an individual case of trafficking in a dangerous drug.

13.  One of the principles contained in Herry Jane Yusuph is the court is to not adopt a rigid arithmetical approach when determining the starting point for sentence and can follow and have a more discretionary approach, looking at the defendant’s role, overall role, and culpability.  However, clearly the quantity of drug involved remains a primary determinant in sentencing.

14.  The other case is a more recent case, HKSAR v Huang Ruifang [2025] 2 HKLRD 138, which sets out the general guidelines for sentencing in cocaine and heroin cases.  In fact, the general guideline for cocaine and heroin is the same.  For a quantity between 10 to 50 grammes, a starting point for sentence would range between 5 to 8 years’ imprisonment. The sentencing guideline, as I said, for cocaine and heroin is the same and in this case there are 11.28 grammes of the combined drug, which would lead to a sentence slightly in excess of 60 months’ imprisonment.   The calculation has been made and I am told it is 61 months:  5 years and 1 month’s imprisonment.

15.  Also relevant here is there is the presence of a small quantity of herbal cannabis:  2.86 grammes.  In my view, that does not add to the overall gravity or calculation of sentence in this case. 

16.  The other -- that you would have to consider is Charge 2, where some Part 1 poison was possessed.  Again, there is no guideline for that particular charge.  So the sentences are somewhat at large.

17.  Applying the principles found in the cases, the defendant’s role, as I said, is fairly clear, is that of storekeeper.  His main mitigating factor was his plea of guilty.  The only potential aggravating factor in this case is the fact that we are dealing with two kinds of drugs, so we are dealing with a cocktail of drugs.  It does not affect the way which sentence is calculated in this case because the guideline for sentence is the same in respect of each drug but it is an aggravating factor for a person who has trafficked in more than one form of dangerous drug.

18.  As far as Charge 1 is concerned, having regard to the aggravating factor, I am going to take an overall starting point of 63 months’ imprisonment.  I shall reduce that to 42 months’ imprisonment for the defendant’s plea of guilty.

19.  On the 2^nd charge, I will adopt a starting point of 6 months’ imprisonment.  I will reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

20.  Overall, having a look at the overall totality, I consider a sentence of 42 months is sufficient in this case to reflect the gravity of the offence, so I will order that the sentences in Charge 1 and 2 be served concurrently to each another, giving a total of 42 months’ imprisonment.