HKSAR v. YIU CHUN MING AND ANOTHER

DCCC 788/2024

[2025] HKDC 1368

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 788 OF 2024

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REASONS FOR SENTENCE

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1.  This case involves two defendants.  The 1^st defendant was charged with one count of trafficking in dangerous drugs[1] (Charge 2).  The 2^nd defendant was charged with one count of possession of dangerous drugs[2] (Charge 1)  and one count of driving a motor vehicle with any concentration of specified illicit drugs[3] (Charge 4).  The two defendants were jointly charged with one count of trafficking in dangerous drugs[4] (Charge 3).  The 1^st defendant pleaded guilty to Charges 2 and 3.  The 2^nd defendant pleaded not guilty to Charge 1 but guilty to Charges 3 and 4.  Upon parties’ application, Charge 1 against the 2^nd defendant is to be left on court file and not to be proceeded with without the court’s leave.

Facts

2.  All the details of the case were set out in the Amended Summary of Facts dated 15 May 2025 and admitted by both defendants.  I am not going to repeat all the facts here.

3.  In gist, at around 0044 hours on 14 July 2023, police officers spotted the 1^st defendant acting furtively outside 33 Marble Road in North Point.  When they approached the 1^st defendant, he turned around and ran onto the road before boarding a taxi bearing registration number RG 6726 (the “Taxi”).

4.  The Taxi, driven by the 2^nd defendant and parked outside 53 Marble Road, was displaying an 'Out of Service' sign while its engine was running.  Police officers intercepted the Taxi and found the 1^st defendant sitting on the right rear passenger seat.

5.  Upon body search on the 1^st defendant, items including a total of 24 resealable transparent plastic bags containing the drugs set out in Charge 2 were found, i.e. 2.88 grammes of a solid containing 2.54 grammes of cocaine, 3.83 grammes of a solid containing 3.21 grammes of ketamine and 3.79 grammes of a solid containing 0.65 gramme of 2-fluorodescloro-N-ethyl-ketamine (hereinafter referred as “FDCK”)  and 2.38 grammes of ketamine (Charge 2).

6.  Upon search of the Taxi, 24 resealable transparent plastic bags containing the drugs set out in Charge 3 were found inside a transparent plastic bag under the carpet of the left rear passenger seat, i.e. 5.58 grammes of a solid containing 4.93 grammes of cocaine, 1.91 grammes of a solid containing 1.61 grammes of ketamine and 1.25 grammes of a solid containing 0.34 gramme of FDCK and 0.56 gramme of ketamine (Charge 3).

7.  Both defendants were arrested. 

8.  The 2^nd defendant was required to undergo a Rapid Oral Fluid Test at the scene.  The result revealed that he had illicit drug in his body. Subsequently, a specimen of blood was obtained from the 2^nd defendant for drug testing.  Upon examination, the 2^nd defendant’s blood specimen was found to contain methamphetamine and metabolite derived from cocaine (Charge 4).

9.  Under caution at scene, regarding Charge 2, the 1^st defendant stated that the drugs were for his self-consumption.  For Charge 3, he stated that those drugs belonged to the 2^nd defendant.

10.  Under caution at scene, regarding Charge 3, the 2^nd defendant stated that he was paid by a “Lok Lok” to drive a young male around at a daily pay of $1,200 and that he saw the 1^st defendant touch the carpet but he did not know anything else.

11.  In subsequent video-recorded interview, the 2^nd defendant stated under caution that regarding Charge 3, he was hired by Lok Lok to drive a person around for a reward of $1,200; he called Lok Lok and then the 1^st defendant boarded the Taxi; the 1^st defendant asked him to drive the Taxi and stop at 53 Marble Road; and the 1^st defendant dropped something and touched the carpet; and for Charge 4, he did take cocaine and ICE at around 1600 hours on 13 July 2023; he knew that taking cocaine and ICE would affect his driving so he would usually take the drugs after his work and around 8 hours before his next shift.

12.  The total estimated market value of the drugs involved in Charge 2 is $11,287.50 while that for Charge 3 is $7,666.98.

Mitigation

13.  The 1^st defendant is aged 34, single.  His parents have retired.  The 1^st defendant and his younger sister are the breadwinners of the family.  Prior to the offences, he worked as a construction worker earning around $25,000 per month and he resided with his girlfriend.  He used to contribute $5,000 monthly to his mother as household money.  He has a clear record.  

14.  In 2023, the 1^st defendant’s father needed to undergo brain surgery, so the 1^st defendant wanted to earn some quick money.  He committed the present offences out of stupidity.  After the offences, his girlfriend left him.  It was submitted that the 1^st defendant had learnt a lesson and the chance of re-offending was low.

15.  The 2^nd defendant is aged 45, single.  His parents passed away some time ago.  He worked as a taxi driver before the arrest.  He has 24 criminal conviction records, 1 relating to trafficking in dangerous drugs. 

16.  The 2^nd defendant is suffering from lung cancer and has been hospitalized in the custodial ward for most of the time during his remand. This Court was urged to impose a lenient sentence given the 2^nd defendant’s health condition.  For Charge 4, it was pointed out that no personal injury or death was caused in the incident.  The defence had no submission on disqualification order or driving improvement course. 

17.  For the drugs-related charges, it is noted that there is no sentencing guidelines for FDCK.  The defence referred to the sentence of a case in the Court of First Instance[5] and submitted that the sentencing guidelines on ketamine should apply to FDCK.  On this basis, the total quantity of ketamine for Charges 2 and 3 are 6.24 grammes and 2.51 grammes respectively.  

18.  Given multiple drugs were involved in each charge, it was submitted that this Court should adopt the combined approach when sentencing.  All parties agreed cocaine should be used as the base drug in the calculation of starting point.  Defence for each defendant has worked out the suggested starting point for each charge in accordance with the methodology as set out in HKSAR v Islam S M Majharul CACC 67/2019. 

19.  The defence acknowledged trafficking in more than 1 drug and committing the offence by more than 1 person were all aggravating factors that might lead to upward adjustment of the starting point.

20.  It was submitted on behalf of both defendants that they were very remorseful for what they had done, and that given their guilty plea, they should be granted the usual 1/3 discount.  The defence also urged this Court to consider the totality of sentence.

Sentence of the 1^st defendant

21.  The 1^st defendant faces two counts of trafficking in dangerous drugs (Charges 2-3).  He has a clear record.

22.  For Charge 2, the drugs involved are 2.54 grammes of cocaine, 5.59 grammes of ketamine and 0.65 gramme of FDCK.  All parties agreed that the sentencing guidelines for trafficking in ketamine should apply to FDCK on same-weight basis.  Therefore, the drugs involved are 2.54 grammes of cocaine and 6.24 grammes of ketamine.

23.  The Court of Appeal has laid down sentencing guidelines for trafficking in the two drugs[6]. In Majharul, the Court of Appeal revisited the “individual” and “combined” approaches used in sentencing when a defendant has been found guilty of trafficking in multiple drugs.  In that case, the Court of Appeal also set out the guidance on the methodology to be used by a sentencing court when adopting the “combined” approach.  According to the methodology set out in that case for calculating the arithmetic starting point, the starting point would be 33.14 months’ imprisonment for trafficking in 2.54 grammes of cocaine and 37.80 months’ imprisonment for trafficking in 6.24 grammes of ketamine.

24.  The total quantity of the 2 drugs is 8.78 grammes.  If the total quantity were cocaine, the starting point would be 55.61 months’ imprisonment. If the total quantity were ketamine, the starting point would be 44.75 months’ imprisonment. 

25.  If the individual approach were adopted in this case, the overall starting point would be 70.94 months’ imprisonment, which is much higher than the starting point of 55.61 months’ imprisonment if the total quantity were cocaine.  Therefore, I agree with parties that the combined approach should be adopted in determining the appropriate starting point in this case.

26.  In accordance with the methodology of the combined approach as set out in Majharul, the sentence for Charge 2 is as follows.

27.  In this case, cocaine and ketamine are involved.  Cocaine is the more serious drug in terms of potency.  All parties agreed cocaine should be used as the base drug for calculation of starting point.

28.  As stated above, the starting point for trafficking in 2.54 grammes of cocaine is 33.14 months’ imprisonment.  This would be used as the base. 

29.  For trafficking in 6.24 grammes of ketamine, the starting point is 37.8 months’ imprisonment.  Given the sentencing guidelines and the related ranges of sentence of cocaine and ketamine are different, I have to consider the results of the absurdity test, the conversion test and the ratio test when determining a reasonable and realistic increase to the starting point of 33.14 months.  Taking into consideration the results of these tests[7], I consider it appropriate to increase the starting point of 33 months’ imprisonment by 14 months to 47 months’ imprisonment. 

30.  Given the 1^st defendant trafficked in 2 types of drugs, the starting point should be enhanced by 2 months to 49 months’ imprisonment.

31.  Apart from the 1^st defendant’s guilty plea, there is no other mitigating factor justifying further reduction in sentence.  Given his plea, the sentence for Charge 2 is reduced to 32 months’ imprisonment.  

32.  For Charge 3, the drugs involved are 4.93 grammes of cocaine and 2.51 grammes of ketamine.  Based on the sentencing guidelines, the starting point would be 41.75 months’ imprisonment for trafficking in 4.93 grammes of cocaine and 28.03 months’ imprisonment for trafficking in 2.51 grammes of ketamine.

33.  Having considered the total quantity of the 2 drugs and the starting point based on that total quantity, I agree with parties that the combined approach should be adopted and cocaine should be used as the base drug in determining the appropriate starting point. 

34.  As stated above, the starting point for trafficking in 4.93 grammes of cocaine is 41.75 months’ imprisonment.  This would be used as the base. 

35.  For trafficking in 2.51 grammes of ketamine, the starting point is 28.03 months’ imprisonment.  Again, I have to consider the results of the absurdity test, the conversion test and the ratio test in order to determine the increase to the starting point of 41.75 months.  Taking into consideration the result of these tests[8], I consider it appropriate to increase the starting point of 41 months’ imprisonment by 6 months to 47 months’ imprisonment. 

36.  Given the 1^st defendant trafficked in 2 types of drugs, the starting point should be enhanced by 2 months to 49 months’ imprisonment. Further, the 1^st defendant committed the offence with the 2^nd defendant, which is also an aggravating factor.  The starting point is further enhanced by 2 months to 51 months’ imprisonment.

37.  Apart from the 1^st defendant’s guilty plea, there is no other mitigating factor justifying further reduction in sentence.  Given his plea, the sentence for Charge 3 is reduced to 34 months’ imprisonment.  

38.  Taking into consideration the totality principle and bearing in mind the total quantity of drugs trafficked, 6 months of the sentence for Charge 2 is to run consecutively to the sentence for Charge 3, making a total sentence of 40 months’ imprisonment.  Therefore, the 1^st defendant is sentenced to a total sentence of 40 months’ imprisonment.

Sentence of the 2^nd defendant

39.  The 2^nd defendant faces one count of trafficking in dangerous drugs and one count of drug driving (Charges 3-4).  He has 1 previous conviction for trafficking in dangerous drugs.  When sentencing, I will not consider this as an aggravating factor.

40.  For Charge 3, I adopt the same calculation and reasons for sentence I just mentioned above in relation to Charge 3 as faced by the 1^st defendant. The starting point for Charge 3 is therefore 51 months’ imprisonment after all the enhancement.  Given the 2^nd defendant’s guilty plea, the sentence is reduced to 34 months’ imprisonment.  While I note that 2^nd defendant’s health condition, I am sure appropriate arrangement will be made for his treatment and I consider this does not in this case amount to a mitigating factor.  Therefore, apart from the 2^nd defendant’s plea, there is no other valid mitigating factor justifying further reduction in sentence.

41.  For Charge 4, there is no sentencing guidelines.  While the 2^nd defendant has a number of traffic convictions, those are not similar to Charge 4.  Given the circumstances of the case, in particular, no injury or damage was caused, I consider the appropriate starting point is 12 months’ imprisonment.  Given his plea, the sentence is reduced to 8 months’ imprisonment.  Apart from his guilty plea, there is no other mitigating factor justifying further reduction of sentence.  Further, according to the relevant provisions of the Ordinance[9], the 2^nd defendant is disqualified from holding or obtaining any driving licence for a period of 2 years and he has to attend and complete a driving improvement course.

42.  Having considered the totality principle and given the two offences are of different nature, 4 months of the sentence for Charge 4 is to run consecutively to the sentence for Charge 3, making a total sentence of 38 months’ imprisonment, with disqualification order for 2 years and the requirement to attend and complete a driving improvement course.