HKSAR v. SHEK KA MING

DCCC 570/2025

[2026] HKDC 820

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 570 OF 2025

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REASONS FOR SENTENCE

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1.  D pleaded guilty to a charge of Trafficking in Dangerous Drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  Around 2:10 pm on 6 December 2024, a police officer, seeing D alighting from a motorcycle outside Lung Fai House in Lower Wong Tai Sin Estate and acting suspiciously, stopped him for a search. The officer found in D’s left hand a piece of tissue paper containing 2 plastic bags containing a total of 1.77 g of a solid containing 1.5 g of ketamine. Inside D’s waist bag, the officer found:

(i) 24 plastic bags containing 20.9 g of a solid containing 17.3 g of ketamine; and

(ii) 55 plastic bags containing 47.1 g of a solid containing 38.4 g of ketamine.

3.  D was arrested. Under caution, he admitted helping others to traffick in ketamine for a reward.

4.  Inside a paper box in a recycling bag hanging from the handlebars of the motorcycle, the officer found:

(i) 53 plastic bags containing a total of 13.9 g of a solid containing 11.9 g of cocaine;

(ii) 20 plastic bags containing a total of 4.49 g of a solid containing 3.79 g of cocaine;

(iii) 5 plastic bags containing a total of 1.43 g of a solid containing 1.09 g of ketamine;

(iv) 2 plastic bags containing a total of 0.51 g of a solid containing 0.41 g of cocaine; and

(v) 10 plastic bags containing a total of 2.54 g of a solid containing 2.16 g of cocaine.

5.  Upon his further arrest and caution, D admitted helping others to traffick in the cocaine and the ketamine for a reward of $2,000.

6.  In a subsequent video-recorded interview, D admitted trafficking in the dangerous drugs found in his waist bag and on the motorcycle. Around 8 am on 6 December 2024, he picked up those drugs from another deliveryman. By that time, he had already delivered several orders of drugs that day. He had been hired by a company as a courier for about a month to deliver dangerous drugs. He would receive delivery instructions via WhatsApp. He used to work 2 days a week, 12 hours a day, and receive a reward of $40 to $50 per order. Customers would either pay the company directly by bank transfer, or they would pay him in cash and he would remit the payment to the company’s bank account. If he did not deliver all the drugs during his shift, he would pass the remainder to the deliveryman working another shift. He claimed that he did the trafficking out of financial difficulties, and that the ketamine found in his hand was for his own consumption.

Defendant’s Background

7.  D has only one previous conviction in 2017 for trafficking in dangerous drugs, for which he was sentenced to 40 months’ imprisonment. He was discharged from prison on 6 October 2017.

8.  He is 38 years old and was educated to Form 3 level. He has a 6-year-old son with his cohabitee. He used to work as a freelance hair stylist and a deliveryman of takeaway food.

Mitigation

9.  Defence counsel Mr Yeung Shak Nung pointed out that although D is not a first offender, he had been out of trouble for 7 years before his commission of the present offence. D was under considerable financial strain at that time due partly to his addiction to ketamine, partly to his acquisition of a new motorcycle to replace the previous one that suffered a total loss in an accident, and partly to his having to defray the funeral expenses of his cohabitee’s father who had recently passed away.

10.  D is now fully remorseful, as reflected in his cooperation with the police, his early guilty plea, and his letter in mitigation.

11.  By reason of his incarceration since his arrest, D is no longer dependent on drugs. He is looking forward to a new drug-free life in which he can engage in proper jobs to support his family.

12.  With regard to sentence, Mr Yeung submitted that sentencing guidelines for cocaine were laid down in HKSAR v Pedro Nel Rojas [1994] 1 HKC 342, which adopted the guidelines for heroin set out in R v Lau Tak Ming [1990] 2 HKLR 370, while those for ketamine were laid down in HKSAR v Hii Siew Cheng [2009] 1 HKLRD 11.

13.  By referring to HKSAR v Chan Yuk Leong [2014] HKLRD (Yrbk) 325 for the Absurdity, Conversion and Ratio tests, I take it that counsel is asking the court to adopt the “combined” approach as opposed to the “individual” approach in assessing the quantum of sentence for trafficking in more than one type of drugs.

14.  Mr Yeung submitted that the Absurdity test would yield a starting point which is beyond the sentencing limit of this Court. If all the drugs were converted to ketamine, the starting point would be about 6.6 years’ imprisonment. The ratio test would yield a sentence of about 6.9 years.

15.  It was submitted that a starting point of 6.6 years for trafficking in both types of drugs would be sufficient.

16.  Counsel then summarised the six-step approach to drug-trafficking sentencing set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as follows:

(i) identify the applicable guideline and band;

(ii) assess the role and culpability of the defendant;

(iii) identify the starting point by reference to the band;

(iv) consider aggravating factors;

(v) consider mitigating factors; and

(vi) ensure the overall sentence is fair, just and balanced.

Sentencing considerations

17.  This case involves trafficking in 18.26 g of cocaine and 58.29 g of ketamine.

18.  Sentencing guidelines for heroin are applicable to cocaine. According to those guidelines, trafficking in 10 – 50 g of cocaine would attract a starting point of 5 to 8 years’ imprisonment.

19.  According to the Hii Siew Cheng guidelines, trafficking in 50 – 300 g of ketamine would attract a starting point of 6 to 9 years’ imprisonment.

20.  The “combined” approach is the proper sentencing approach to take in this case. The case of HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 sets out the proper methodology under this approach.

21.  I would use cocaine, which is the more potent of the two drugs, as the base drug in calculating the starting point of the total drugs.

22.  D was clearly a courier. According to Herry Jane Yusuph, the sentencing guidelines apply to a courier or storekeeper arithmetically.

23.  Applying the cocaine guidelines arithmetically, the starting point for trafficking in 18.26 g of the base drug cocaine would be about 5 years 7 months (67 months).

24.  In determining how much of this starting point will have to be increased on account of the ketamine involved in the offence, first of all, the court would note that according to the Hii Siew Cheng guidelines, trafficking in 58.29 g of ketamine would attract a starting point of about 6 years 1 month.

25.  If the total amount of narcotics involved in the charge, ie 76.55 g, were the more potent drug of the two, ie cocaine, trafficking in this amount of cocaine would, according to the sentencing band of “50 – 200 g: 8 to 12 years”, result in a starting point of about 8 years 8 months (104 months). This is the result of the Absurdity Test.

26.  The starting point for trafficking in 76.55 g of ketamine would be about 6 years 4 months (76 months).

27.  The Ratio Test would yield a result of 82.6 months (6 years 10.6 months).

28.  As for the Conversion Test, if all the drugs were converted to cocaine, basing on the cocaine sentencing guidelines, the starting point would be about 7 years 5 months (89 months); if the drugs were converted to ketamine, basing on the ketamine guidelines, the starting point would be about 6 years 7 months (79 months).

29.  That D was trafficking in two types of drugs increases the criminality. I will take this into consideration in assessing his role and culpability^[1].

30.  Taking all these matters into account, I would increase the starting point of 5 years 7 months for the base drug to 7 years 3 months’ imprisonment as the notional starting point for trafficking in both types of drugs.

31.  I do not propose to enhance D’s sentence by reason of his previous similar conviction. As Mr Yeung pointed out, that was his only previous conviction and he had been out of trouble for 7 years before he broke the law this time.

32.  It hardly needs saying that committing the offence out of financial difficulties and/or out of a need to finance his own addiction cannot mitigate D’s culpability.

33.  D’s claim that the 1.5 g of ketamine held in his hand was for his own consumption, even if it was true, would not make any meaningful difference to the sentence.

34.  D’s early guilty plea is the only effective mitigating factor, for which he will be given a one-third sentencing discount. After such a discount, the final sentence is 58 months’ imprisonment.