HKSAR v. NG CHI YIP AND OTHERS

HCCC 48/2024

[2026] HKCFI 1546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 48 OF 2024

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REASONS FOR SENTENCE

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1.  The 3 defendants each pleaded not guilty to one joint count of conspiracy to traffic in a dangerous drug. D1 and D3 were acquitted and D2 was convicted by the jury after trial. These are D2’s reasons for sentence.

PARTICULARS OF THE CHARGE

2.  “Ng Chi-yip, Tam Tin-yau and Chua Yik-lam, between the 28^th day of March 2021 and the 23^rd day of July 2021, both dates inclusive, in Hong Kong, conspired together with other persons unknown to traffic in a dangerous drug, namely, 56.37kg of a mixture containing 46.12kg of heroin hydrochloride.”

SUMMARY OF FACTS

3.  A container consignment of 20 large carton boxes of snacks, which included instant rice vermicelli packets, were shipped from Thailand and arrived in Hong Kong on 19^th July 2021.  They were found by Customs Officers to contain the charged dangerous drugs on 22^nd July 2021.  

4.  The drugs were replaced with real rice vermicelli packets (“the dummy packets”).  The phone number of the contact person of Yat On Food Limited, the consignee company, was called and the controlled delivery of the consignment, with the dummy packets, was arranged to be made on 23^rd July 2021 to Hoover Industrial Building in Kwai Chung.

5.  The delivery arrived at 3:09pm on that day at the carpark of Hoover.  D1 was the person who used the company stamp of Yat On to accept delivery.  

6.  D1 and D2 loaded the 20 carton boxes into a lift and then up to the lobby of the 6^th floor of the building.  

7.  D1 waited outside Flat 6D on the 6^th floor with the 20 boxes.  D2 used a key card to enter the glass door of Flat 6D, which was subdivided into a number of rooms sublet to different tenants.

8.  Customs Officers intercepted D1 on the lobby of 6^th floor while he was waiting there for D2.

9.  Upon arrest and caution, D1 said it was a “Fei Chai” who had asked him to collect the consignment, and that someone will take over the goods later.  He did not know the full name of Fei Chai, nor what was inside the consignment.  He was promised $2,000 for helping to collect the consignment.  

10.  After D1’s apprehension, Customs Officers tried to pull open the glass door of Flat 6D, which D2 had earlier opened and went into, but were unable to do so.  While they kept on trying, D2 appeared behind the glass door.  Upon seeing D1 being surrounded by a bunch of people, he immediately turned around and disappeared from the view of the Customs Officers who were shouting for D2 to open the glass door.  

11.  Not long after D2’s disappearance, the glass door was opened by someone else from inside Flat 6D who heard the commotion, and the officers were finally able to enter.  They went towards where they saw D2 had gone and found Room 12.  They knocked on the door, loudly declaring that they were customs officers and demanded the occupant to open the door.

12.  D2 eventually came to open the door.  Upon arrest and caution, he exercised his right to silence.

13.  Inside room 12 were a large number of carton boxes containing rice vermicelli packets that had already been cut open.  None of the rice vermicelli packets had any seasoning packets, just the actual instant vermicelli inside the wrapper.  No dangerous drugs were found inside room 12.  

14.  D2’s home was searched later on.  The original business registration certificate of Yat On, a stack of shipping documents for the consignment of rice vermicelli from Thailand, and the original tenancy agreement for Room 12 were found inside a carton box on the window sill of one of the rooms there.

15.  The wrappers from all the original rice vermicelli packets of the consignment were sent for fingerprints lifting and D2 and D3’s fingerprints were found on a number of the wrappers.  

16.  The wrappers from all the already opened rice vermicelli packets found from Room 12 were also sent for fingerprints lifting.  D2 and D3’s fingerprints were also found on some of those wrappers.  

17.  D3 was arrested on the street on 1^st April 2022 for the drugs found in the original consignment packets.  Under caution, D3 said he was in Thailand from 28^th March to 25^th July 2021 for sightseeing and offering thanks to deities.  He had planned to stay for 2 weeks but was unable to return to Hong Kong because of the pandemic, and so he had stayed for a few more months.  It is not disputed that D3 landed in Hong Kong on 25^th July 2021 and was immediately served with a 21 days compulsory quarantine order, to expire on 14^th August 2021.  

18.  By their verdicts, the jury were sure that there was in fact an agreement to arrange for the heroin hydrochloride in the seasoning sachets of the rice vermicelli packets to be imported into Hong Kong and to be moved and stored in Room 12.  They were sure that D2 had joined in that agreement with at least one other person unknown, that he intended to enter into that agreement, and that when he made that agreement, he intended that he or some other party to the agreement would carry out what was agreed.  

PREVIOUS CONVICTION

19.  D2 is of previously clear record.  

BACKGROUND AND MITIGATION

20.  D2 is 35.  His parents separated when he was 8.  His mother passed away when he was 14.  The defendant was educated in a boarding school up to Form 5 in Hong Kong.  He then went to Korea to study music and the Korean language, utilizing the inheritance his mother had left for him.  Upon his graduation, he returned in 2013 and found a job in a financial investment group.  He worked there for about 2 to 3 years.  The defendant married his ex-wife in 2016, and their child was born in the same year.  Also in 2016, he and a friend started up a Hong Kong style restaurant (港式茶餐廳)  in Shenzhen.

21.  The restaurant business failed in 2018.  At the same time, relationship with his ex-wife had deteriorated and they separated in 2019.  D2 moved out of the matrimonial home and rented Room 12 in around August 2019 and started living there.  Meanwhile, D2 managed to find work as a night shift warehouse logistics worker on a casual basis, at least securing a source of income.  D2 only met his ex-wife once after they separated, which was in 2021 when she visited him in prison to tell him about her petition for divorce.  The marriage was dissolved in 2023 and D2 had since severed all ties with his ex-wife and their child.  

22.  Ms. Chan, Counsel for D2, submits that D2 was merely involved in the logistics of the moving and storing of the dangerous drugs and that he was at the lowest end of the trafficking hierarchy.

23.  Ms. Chan pointed out that the possession of the business registration documents of Yat On does not link D2 to the establishment of the business some two years before the offence date, and there is nothing to show that D2 had done anything to cause the heroin to be imported via Yat On.  

24.  Ms. Chan accepts that D2 had known that the consignment originated from Thailand, but submits that mere knowledge of that does not mean that he was responsible for arranging or causing the drugs to be imported from overseas.  Ms. Chan, however, does acknowledge that the drugs being imported from overseas is a ‘major aggravating factor’ in this case, and that there might be an enhancement of sentence on this basis.

25.  Having regard to the sentencing guidelines in Huang Ruifang (below), the presence of a prevailing sentencing limit of 35 years’ imprisonment after trial as indicated in HKSAR v Sum Ka Wa (08/08/2024, CACC144/2023)  [2024] 4 HKLRD 777, [2024] HKCA 760, and the role and culpability of D2, Ms. Chan submits that a term of 31 years’ imprisonment after trial, being inclusive of an enhancement for the presence of an international element, is sufficient to reflect D2’s involvement in this drug trafficking conspiracy.

SENTENCING

26.  The maximum sentence on conviction upon indictment for the present offence is the same as that of trafficking in dangerous drugs, which is life imprisonment and a fine of $5 million.

27.  It was confirmed in the case of HKSAR v Chan Kam Loi (陳鑑來)  CACC 410/2012, that even in respect of inchoate offences, the court should see whether the evidence would allow it to reach a conclusion which fairly reflects the quantity of drugs that were agreed to be trafficked, and that quantity would be one of the facts relevant to the assessment of the gravity of the crime and a ready mean to identify the appropriate starting point, which can then be enhanced should there be aggravating factors present.

28.  In the present case, the quantity of drugs that was agreed to be trafficked is known, as such, I will adopt the sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Huang Ruifang [2025] HKCA 234 to assist the court in arriving at the proper starting point.

29.  It is not disputed that the updated guidelines in Huang Ruifang are applicable despite the fact that the present offence was committed before they were laid down[1].

Step 1: The applicable guideline tariff bands

30.  For 46.12 kg of heroin hydrochloride, the applicable band is “over 30 years”.

Step 2: The defendant’s role and culpability

31.  It can be seen from the CCTV footages capturing the moving of the dummy cartons after D1 had signed for their delivery that it was D2 who went up to a staff member to hold lift number 3 so that he and D1 could load the boxes inside.

32.  At the time of his arrest on the day, D2 had 2 keys of Room 12 on his person.  He was the person who used a key card to unlock the glass door of Flat 6D and then went inside alone, going into Room 12, no doubt to prepare the room for the incoming 20 cartons of goods that he believed had dangerous drugs inside.

33.  Room 12 was rented by D2, using his own name.

34.  The original business registration certificate of the consignee company, Yat On, named in the Bill of Lading were found in D2’s home, together with the shipping documents of the consignment and the tenancy agreement for Room 12.  

35.  D2’s fingerprints were found on the inside and outside of a number of rice vermicelli wrappers that contained the seasoning sachets replaced with heroin that were shipped into Hong Kong.  

36.  D2 had multiple contacts with a person whom he addressed as ‘Ah Wah’, who was supposed to be one of the masterminds behind the operation.  

37.  According to the evidence of the exhibits officer, but for the fact that some indistinct re-sealing trace and slight difference in the shade of green of the packets, one would not have known that the packets of rice vermicelli had been tampered with and that the seasoning powder sachets had been replaced by sachets of heroin mixture.  

38.  There were 3,060 such sachets in total from 12 of the 20 large cartons that were shipped in.  The then street value of the drug was around $83 million.  

39.  The conspiracy was to import this large quantity of drugs into Hong Kong, store them in a warehouse and then no doubt eventually distribute them.  It was a sophisticated and well planned operation.

40.  Based on the shipping documents, the BRC of Yat On found in his residence, I find that D2’s role was that of a storekeeper.

41.  I do accept that, although D2 was well aware that the drugs were being imported into Hong Kong when he entered into the agreement to traffic, there is no evidence to suggest that he had directly facilitated their importation.

42.  Be that as it may, he did assist in the reception of the delivery and his culpability is higher than that of a simple courier who knew nothing about the origin of the drugs being handled.

Step 3: The relevant band within the guidelines

43.  Taking into consideration the scale of the conspiracy, the quantity of drugs involved, the presence of an international element, and D2’s role in the conspiracy, I find that an appropriate starting point is that of 31 years’ imprisonment.

Step 4: Aggravating factors

44.  The international element had already been incorporated in the said starting point.  There are no other aggravating factors.

Step 5: Mitigating factors

45.  D2 was convicted after trial.  There are no mitigating factors in his commission of this serious offence.

Step 6: Totality

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

47.  D2 is, therefore, sentenced to 31 years’ imprisonment.