HKSAR v. CHOI TSZ FUNG

CACC 213 /2024, [2025] HKCA 733

On Appeal From [2024] HKCFI 3194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 213 OF 2024

(ON APPEAL FROM HCCC NO 84 OF 2024)

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J U D G M E N T

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1.  The applicant pleaded guilty in the magistrate’s court to a charge of trafficking in a dangerous drug, namely 8.18 kilogrammes of a solid containing 6.8 kilogrammes of Ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was duly committed to the High Court for sentence and, on 30 September 2024, sentenced by Deputy Judge Eric Kwok, SC (“the judge”) to 16 years’ imprisonment.

2.  On 15 October 2024, the applicant filed a Form XI Notice of Application for Leave to appeal against his sentence.  Since I have decided to grant leave to appeal against sentence in this matter and the applicant is currently unrepresented, I can deal with this application for leave on the papers.  I have had the benefit of reading Mr Raymond Chan’s submission on behalf of the respondent. 

The Summary of facts

3.  At around 1:35 pm on 11 April 2023, Customs officers intercepted the applicant after he had left Myloft building, at 9 Hoi Wing Road, Tuen Mun, the New Territories (“the Building”).  He was searched and in his rucksack were found six packets each containing white powder wrapped in tinfoil and black plastic wrapping.  The white powder was subsequently confirmed to be 8.18 kilogrammes of a solid containing 6.8 kilogrammes of Ketamine, the street value of which was HK$4,400,840^[2].

4.  Under caution, the applicant said that the packets belonged to “the Boss”, who had asked him to take the packets home for a reward of HK$5,000.  In subsequent video recorded interviews (“VRI”), the applicant claimed that he collected and assembled furniture for the Boss, who was the owner of a furniture shop.  The applicant worked alone on a part-time basis and received a monthly salary of HK$5,000.  It was the Boss who instructed the applicant to receive or collect a delivery of goods on the ground floor of the Building.  The applicant was only told that the consignment was a “log (sic) of table lamps”.  He received no further information, including by which courier company the consignment was going to be delivered^[3].

5.  According to the applicant’s assertions in his video-recorded interviews, on the day of the arrest, when he arrived at the Building, someone had already delivered the consignment and left it unattended in the ground floor carpark.  The applicant noted that the consignment, consisting of nine cartons, was destined for an address on the second floor of the Building.  However, at this juncture, the Boss instructed the applicant to take the consignment to the third floor and retrieve the six packets in question from a hidden compartment inside one of the cartons.  The applicant was further requested to take the six packets to his own home, while leaving everything else on the third floor.  The Boss told the applicant that the six packets contained “lamp accessories” such as screws.  However, the applicant was aware that the packets felt as though they contained powder.  Although he found this whole arrangement strange and suspicious, the applicant raised no further enquiry with the Boss and followed his instructions.  He was arrested shortly after leaving the Building^[4].

6.  However, it transpired that the applicant’s account of knowing little about the consignment was contradicted by various communications recorded on his telephone.  His WhatsApp conversations with the Boss revealed that, instead of working alone, the applicant had repeatedly worked with other people to receive things for the Boss, with a monthly remuneration always exceeding HK$5,000.  Throughout these conversations, no furniture or furniture-assembling task was ever mentioned.  On the day of the arrest, the applicant had recruited one “Ah For” to receive the consignment at the Building.  After collecting the consignment, “Ah For” sent pictures of it and its invoice to the applicant, who then passed on the pictures to the Boss^[5]. Furthermore, the delivery address of the consignment provided to the courier company, Room 224 of the Building, was a false address made up by the applicant himself.  According to his counsel, the applicant did this to prevent the consignment being received by some innocent party^[6].

7.  At the time of the offence, the applicant was in his final year at university in the United Kingdom.  He had previously been arrested on 10 October 2022 for two offences of trafficking in Cannabis, for which he received a total sentence of 8 weeks’ imprisonment on 24 May 2023.  The applicant therefore committed the present offence whilst on court bail for the previous trafficking offences^[7].

The ground of appeal

8.  In his Form XI Notice, the applicant simply submitted that the sentence was disproportionate to the quantity of the dangerous drug. 

The respondent’s submissions

9.  The respondent opposes this application.  Mr Chan points out that the judge considered HKSAR v Sin Chung Kin^[8] and held that for trafficking in more than 3 kilogrammes of Ketamine, the starting point could exceed 20 years’ imprisonment.  Given the applicant’s role and culpability, which were more serious than that of a mere courier or storekeeper, the judge was right to adopt a starting point of 23 years’ imprisonment.  It was also correct for the judge to enhance such starting point by 1 year to 24 years’ imprisonment because the applicant committed the present offence whilst on court bail for the same offence.

Consideration

10.  The courts have generally regarded trafficking in Ketamine as meriting a lesser sentence than trafficking in Heroin or Cocaine. For example, under the consolidated and revised guidelines in HKSAR v Huang Ruifang (No 3)^[9], the starting point after trial for trafficking in 50 grammes and 1,000 grammes of Heroin or Cocaine would, on a purely arithmetical basis, be in the region of 8 years’ and 18 years’ imprisonment respectively.  However, under the guidelines in Secretary for Justice v Hii Siew Cheng[10]the starting point after trial for trafficking in 50 and 1,000 grammes of Ketamine would be in the region of 6 years’ and 14 years’ imprisonment respectively.  In rough terms, therefore, the sentence for trafficking in 50 grammes of Ketamine would be 25% lower than the same quantity of Heroin or Cocaine, while the sentence for trafficking in a kilogramme of Ketamine would be about 22.2% lower than for Heroin or Cocaine.  Ketamine, whilst a serious and addictive dangerous drug, with a particular prevalence among young people, has obviously not been dealt with quite as harshly as Heroin or Cocaine. 

11.  If one were to apply the Huang Ruifang (No 3) guidelines on a strictly arithmetical basis to 6.8 kilogrammes of Heroin or Cocaine, the starting point would be just over 24½ years’ imprisonment.  Applying a differential of 22.2% to what is regarded as a comparatively less serious drug, then 6.8 kilogrammes of Ketamine would attract a sentence in the region of 19 years and 2 months’ imprisonment, again on a strictly arithmetical basis.  However, it is important to recognise that the judge found that the applicant was not a “mere courier” but was more heavily involved in the planning of the offence[11].  He adopted a starting point of 23 years’ imprisonment, which he enhanced by 1 year for the applicant’s previous trafficking conviction to 24 years’ imprisonment, before giving the applicant a full one-third discount for his timely plea.

12.  The fact is, however, that the Ketamine guidelines in Hii Siew Cheng are now 17 years old and only cater, in numerical terms, for amounts up to 1 kilogramme of narcotic and above.  Beyond that, there are individual authorities dealing with very large quantities of Ketamine, which, while useful, are not intended to be methodical, structured guidelines.  Given that there are now modern, comprehensive guidelines for all quantities of Heroin, Cocaine and “Ice”, as well as Cannabis^[12], the time may well have come for the Court to reconsider the guidelines for Ketamine.

13.  However, I would caution the applicant that the Court may conclude that simply adopting guidelines with a differential of 22.2% or 25% from existing Heroin or Cocaine guidelines may be somewhat simplistic. Heroin and Cocaine, whilst very serious addictive drugs are derived from the poppy and coca leaf respectively.  Supply is therefore limited by harvest and manufacture abroad.  Ketamine is a synthetic, chemical drug, which can be manufactured anywhere and its supply is therefore limitless.  In that respect, it has some similarity with “Ice”.  Ketamine is also very popular with teenagers and young people.  In Hii Siew Cheng it was said, on the basis of the expert evidence adduced before the Court, that Ketamine “is presently the most popular drug of abuse in Hong Kong for those who are under 21…”[13].  For that reason, as well as its prevalence, the Court may well consider that a significant element of deterrence should be built into the guidelines for Ketamine.

14.  I shall grant the applicant leave to appeal and also give him an appeal aid certificate.  I would hope that experienced counsel on both sides would then be able to assist the Court of Appeal in considering the necessity and formation of any new guidelines, and their resultant effect, if any, on the present appeal.  To that end, the Court would benefit from expert evidence both as to the effects of Ketamine, now that it is better known and understood than it was in 2008, and any statistics concerning seizures as well as usage among particular age demographics of the population since Hii Siew Cheng was decided.  The Court will also wish to know the figures for importation and exportation of Ketamine to and from Hong Kong over the last 17 years.  With such information, the Court will then be in the best position to consider a re-evaluation of the Ketamine guidelines for all quantities for the future.

15.  I shall further direct that this appeal shall be heard by a Court of Appeal comprising three justices of appeal.

[1]  The original hearing date of 8 August 2025 was vacated by direction of the Court on 1 August 2025, so that the application could be dealt with earlier on paper.

[2]  Summary of Facts at [1], [2] & [10]: Appeal Bundle (“AB”), pp 3 & 6.

[3]  Summary of Facts at [3]-[5]: AB, pp 3-5.

[4]  Summary of Facts at [5]: AB, pp 4 & 5.

[5]  Summary of Facts at [9]: AB, pp 10 & 11.

[6]  Summary of Facts at [7] & [8]: AB, p 10; Transcript of Mitigation: AB, p 14M.

[7]  Transcript of Reasons for Sentence: AB, p 11G-K; Criminal Record: AB, p 30.

[8]  HKSAR v Sin Chung Kin [2013] 1 HKLRD 627.

[9]  HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

[10]  Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[11]  AB, p 12A-D.

[12]  HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329.

[13]  Hii Siew Cheng, at [27].