HKSAR v. CHOW CHUN FAAT

HCCC 96/2025

[2025] HKCFI 2800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 96 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 counts of trafficking in a dangerous drug[1] before Magistrate Ms. Minnie WAT and was committed, on 17^th March 2025, to the Court of First Instance for sentence. He confirmed his pleas and admission to the Summary of Facts before me and the convictions were duly recorded.

2.  Particulars of count 1 are that, the defendant on 14^th August, 2023, outside Flat B605, Block B, Cambridge Plaza, No. 188 San Wan Road, Sheung Shui, New Territories (hereinafter as “the building”), unlawfully trafficked in a dangerous drug, namely 1.39 kilogrammes of a mixture containing 1.09 kilogrammes of heroin hydrochloride.

3.  Particulars of count 2 are that he on the same day, at Flat B605 of the building, unlawfully trafficked in a dangerous drug, namely 4.681 kilogrammes of a mixture containing 3.652 kilogrammes of heroin hydrochloride.

FACTS

4.  The defendant was intercepted by anti-narcotics police officers at around 5:31pm on 14^th August 2023 when he stepped out of Flat B605 of the building.  4 packets containing a total of 4 blocks of dangerous drugs were found in his possession.  They form the subject dangerous drugs of count 1.

5.  The defendant was arrested and claimed under caution that a ‘Cheung Tau’ had told him to bring the 4 blocks of drugs outside; that there were more drugs in the ‘warehouse’; and that he could bring the officers inside.

6.  The defendant was escorted back into Flat B605 and the following items were found in the living room:

(1)  In a plastic box, 20 packets containing a total of 6.95 kilogrammes of a solid which was not a controlled substance;

(2)  In a bag, 111 packets containing a total of 4,681 grammes of a solid containing 3,652 grammes of heroin hydrochloride;

(3)  A sealing machine;

(4)  An electronic scale;

(5)  A stack of black plastic bags;

(6)  A stack of transparent plastic bags;

(7)  3 spoons/spatulas;

(8)  Stationery such as marker, scissors and adhesive tape;

(9)  Hydraulic pump;

(10)  Metallic block mould;

(11)  A cigarette butt (on which DNA of the defendant was found); and

(12)  CCTV cameras inside and outside the Flat.

7.  The defendant was arrested for the drugs found in the flat and he claimed under caution that they were the drugs that ‘Cheung Tau’ had asked him to distribute.

8.  In the subsequent video recorded interview conducted on the same evening, the defendant claimed that a friend of his, ‘Ah Bun’ knew the defendant was in need of money and offered him a job to earn some quick money.  Later on, a person identifying himself as ‘Cheung Tau’ contacted the defendant via WhatsApp and they started to communicate.  All their communications had, however, been deleted as instructed by ‘Cheung Tau’.

9.  ‘Cheung Tau’ told him to go to Flat B605 where he found the key under the doorstep, and the defendant was told to deliver 2 blocks of the drugs that were in the flat each time, for a reward of $2,000 per delivery.  The defendant was supposed to be paid monthly but he had yet to receive any money.  

10.  The defendant explained that the heroin inside the plastic box were for deliveries, while the 111 packets in the bag were samples for customers and he had never delivered those drugs.

11.  The defendant had delivered drugs 7 to 8 times over the past 2 to 3 weeks.  He would be given a destination each time, where he would put the drugs in a bush next to a rubbish bin.  He had nothing to do with the renting of the flat, and he had never brought anyone there.  

12.  The defendant claimed to have never touched any of the packaging paraphernalia found in the flat.  

13.  CCTV footages captured the defendant at the building on 6 different days in August 2023, being the 6^th , 8^th , 9^th , 11^th , 12^th and 14^th of August.  

14.  The defendant’s home was searched and nothing of significance was found.

15.  The total estimated retail price of the seized drugs as at August 2023 was HK$4,431,830.

PREVIOUS CONVICTION

16.  The defendant has 3 previous convictions from 2 court appearances.  His first set of convictions were for trafficking in dangerous drugs and possession of equipment for smoking or injecting dangerous drugs, when he was sentenced on 22^nd October 2021 to a total of 40 months’ imprisonment in the District Court.  He finished serving that sentence on 29^th November 2022.

17.  His third and last conviction was for attempting to deal with property known or believed to represent proceeds of an indictable offence (commonly known as money laundering).  The date of commission of that offence was 10^th July 2023, which was also the date of his arrest for that offence.  He was brought to court on 13^th July 2023 and was then remanded in police custody for an identification parade to be held.  He was granted court bail on 18^th July 2023.

18.  The defendant was arrested for the present offences on 14^th August 2023 and had been in remand since 16^th August 2023.  

19.  On 5^th November 2024, the defendant pleaded guilty to the charge of attempted money laundering and was, on the same day, sentenced to 2 years 5 months’ imprisonment[2].  The defendant finished serving that sentence on 19^th April 2025.

BACKGROUND AND MITIGATION

20.  The defendant was born in mainland China in August 1995 and is 29.  He came to Hong Kong with his parents shortly after birth and was educated up to Form 2 level here.  He is single and was living with his 55 year old mother and elder sister in a public housing unit.  The defendant’s father had left when the defendant was young.  

21.  The defendant took up casual work after leaving school.  Prior to his arrest, he was working at a warehouse earning about $15,000 a month.

22.  Mr. Ken Ng, counsel for the defendant, confirmed that the defendant committed the present offences about 8 months after he had finished serving the sentence for his first trafficking in dangerous drugs conviction.

23.  Mr. Ng also confirmed that the defendant had committed the present offences 27 days after he was granted court bail in the attempted money laundering case.

SENTENCING

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

25.  Although the drugs were found from the defendant’s person and inside the flat, which led to two charges being laid, it is obvious that the defendant’s possession of the drugs were directly connected, it is trite law that he should be sentenced as if he was in possession of all the drugs on one single occasion[3].

APPLYING HERRY JANE YUSUPH

26.  The guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[4], as read in conjunction with HKSAR v Lee Ming Ho[5] are applied as follows.

Step 1: The applicable guideline tariff bands

27.  The sentencing guidelines as updated in the case of HKSAR v Huang Ruifang [2025] HKCA 234 for heroin are applied.

28.  For the individual quantity in the two counts, the bands are “16 to 20 years” and “20 to 24 years” respectively.

29.  For the combined quantity of 4,742g, the applicable band is “20 to 24 years”.

Step 2: The defendant’s role and culpability

30.  Despite the presence of tools that are typically used in packaging drugs, such as digital scale and empty plastic bags, there is no direct evidence that the defendant was engaged in the packaging of the drugs that he was asked to deliver.  There were no fingerprints or DNA materials on the paraphernalia that would tie the defendant to their usage.  One reasonable inference can be that some other people were tasked with the packaging while the defendant was there solely to make the deliveries.  This inference is, of course, also supported by the defendant’s own utterances under caution.  

31.  There being two reasonable inferences, the defendant is granted the benefit of the doubt and is to be sentenced on the basis that is more favourable to him, which is that his role and culpability is that of a mere courier and storekeeper.

Step 3: The relevant band within the guidelines

32.  The individual notional starting points for count 1 and 2 are, therefore, respectively, 18 years 4 months and 22 years 5 months’ imprisonment.

33.  For the combined quantity of 4,742g, the starting point should be 23 years 8 months’ imprisonment. This is the starting point I would adopt.  

Step 4: Aggravating factors

34.  The defendant committed the present offences just 8 months after his last release from jail.  This is the defendant’s second trafficking in dangerous drugs conviction.  The previous sentence imposed in 2021 did not achieve its deterrent effect.  

35.  Furthermore, the defendant committed the present offences while on court bail for the money laundering case, which is an aggravating factor[6].

36.  Taking these aggravating factors into consideration together, I will enhance the starting point by a total of 10 months, taking it up to 24 years 6 months’ imprisonment.

Step 5: Mitigating factors

37.  The only mitigating factor is the defendant’s timely pleas, for which he is granted the full one-third discount, resulting in a sentence of 16 years 4 months after plea.  

Step 6: Totality

38.  Taking a step back, I am of the view that this is a fair, just and balanced sentence.  

39.  To achieve the said combined sentence, in relation to count 1, I sentence the defendant to 12 years’ imprisonment after plea; in relation to count 2, to 16 years’ imprisonment after plea, and I order 4 months of the sentence in count 1 to be served consecutively to the sentence in count 2, the balance concurrently.

40.  The total sentence for the two counts after plea is, therefore, 16 years 4 months’ imprisonment.  

FURTHER APPLICATION OF THE TOTALITY PRINCIPLE

41.  The time of commission of the attempt to money launder was 10^th July 2023, which was only 35 days before the defendant’s commission of the present offences which took place on 14^th August 2023.  

42.  Given that the commission of the offences were so close to each other, out of an abundance of caution, and for the sake of completeness, despite the fact that the defendant had already finished serving his sentence in the attempt to money launder case on 19^th April 2025, I have applied my mind to whether and how I would have dealt with the sentences in the two cases had they been before me on the same occasion[7].

43.  According to the Reasons for Sentence in the attempt to launder money case, the 73 year old victim (“V”)  received a phone call from someone (“A”)  pretending to be his son, saying that he had been arrested and needed $100,000 for bail.  V told A he only had $60,000.  A said will arrange for the money to be collected.  V received a call from A two hours later telling him to hand over the money to A’s friend who had arrived.  V then went to a place (location of which is not apparent from the Reasons for Sentence)  and handed over $60,000 to an unknown male (not the defendant).

44.  40 minutes later, at 12:40pm, A called again, asking for another $120,000 for legal fees.  Since it was a Saturday, V told A that the bank had closed and he can only give him the money on Monday.  Later on that day, V saw his family members and found out that he had been the victim of a scam.  The matter was reported to the police.  

45.  2 days later on Monday 10^th July, A called and told V to get ready the $120,000.  The police then mounted a controlled delivery operation.  A called again at 12:47pm, telling V that someone else will call him to confirm the time of arrival to collect the money.  At 1:07pm, A called and said his assistant will arrive in about 30 to 40 minutes.  At 1:11pm, a different man called saying he was on his way from Kwun Tong and that he will be late.  At 2:22pm, that same man called and told V to meet him downstairs.  V did accordingly and met with the defendant.  He asked the defendant if he had come from Kwun Tong and the defendant replied yes.  The defendant then made a phone call and handed his phone over to V.  It was A on the other end and he told V to hand over the money to the defendant.  V opened the paper bag with props money for the defendant to have a look.  Once the defendant took over the bag, police officers in ambush intercepted the defendant and arrested him.

46.  In the learned Deputy District Judge’s sentencing, the fact that the defendant had committed the attempted money laundering offence just 8 months after his last release from jail for the trafficking in dangerous drugs case had not been taken as an aggravating factor.  

47.  The judge took into consideration the relevant sentencing authority, the fact that the underlying offence was relatively simple,that the defendant’s role was limited to collecting money from the victim, with no evidence to suggest his participation in the deceiving of the victim, and that apart from the first $60,000, which the defendant was not being charged for, the victim had not suffered any further monetary loss, and adopted a starting point of 33 months’ imprisonment, discounted to 22 months upon the defendant’s guilty plea.  The sentence was then enhanced under s.27(2)(c)-(e)  of the Organized and Serious Crimes Ordinance, Cap.455 by 7 months, resulting in the final sentence of 2 years and 5 months’ imprisonment.

48.  With the above background information in place, my thinking is as follows.  Had the trafficking charges and the attempted money laundering charge been dealt with by me on the same occasion, given that the trafficking offences are in no way connected to the attempted money laundering offence, which took place on a different day and is an offence of a totally different nature, and that the defendant had committed the trafficking offences just 27 days after court bail for the money laundering case was granted.  In fact according to the summary of facts, the defendant claimed to have delivered drugs 7 to 8 times over the past 2 to 3 weeks in his video recorded interview dated 14^th August 2023, and CCTV footages showed 6^th August as the earliest date that he was seen entering the building.  The defendant had demonstrated a complete disregard for the law.  

49.  In order to properly “comprehend and reflect the overall criminality” of the offences[8] in both cases, I would have ordered the sentences to be served wholly consecutively.

50.  I would then have taken a step back and applied the totality principle, and found that the resulting sentence of 18 years 9 months’ imprisonment (being 16 years 4 months for the trafficking and 2 years 5 months for the attempted money laundering)  appropriate in all the circumstances.

51.  Lastly, I note in particular that the Deputy District Judge had not considered the timing and nature of the first set of convictions as aggravating features in her sentencing of the money laundering case, and as such the defendant would not have been doubly punished even if the sentences are made wholly consecutive.

52.  The final combined sentence for the two counts in the present case is, therefore, 16 years 4 months’ imprisonment after plea.