HKSAR v. YU HENGHUI

HCCC 295/2024

[2025] HKCFI 3560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 295 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 9 September 2024. The case was then committed to the Court of First Instance for sentence. Before this court, the defendant confirmed his plea and his agreement to the Summary of Facts through counsel.

2.  The particulars of the charge state that on 23 June 2023, outside No. 69 Fuk Wing Street, Sham Shui Po, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 64.84 grammes of a mixture containing 49.71 grammes of heroin hydrochloride. 

3.  The Summary of Facts admitted by the defendant provides, inter alia, as follows. At about 6.30 am on 23 June 2023, police officers of District Special Duties Squad 1 of Sham Shui Po District mounted an anti-narcotics operation in the vicinity of Nam Cheong Street, Sham Shui Po, Kowloon.

4.  At about 8.59 am on the same day, Senior Inspector Ma, PC26047 and PC18673 spotted the defendant riding a bicycle along Nam Cheong Street (south bound).  Upon seeing Senior Inspector Ma, the defendant immediately turned left into Fuk Wing Street and accelerated.  Feeling suspicious, the police gave chase and intercepted the defendant outside No. 69 Fuk Wing Street shortly afterwards. 

5.  At that time, the defendant was holding a lemon tea box (“Exhibit 22”)  in his right hand.  Senior Inspector Ma revealed his police identity to the defendant with a view to conducting enquiry with him. 

6.  At about 9 am, one of the police officers conducted a search on the person of the defendant with nothing suspicious found, while another police officer seized Exhibit 22 from the defendant which contained a total of 280 packets of the total gross weight of 64.84 grammes of a mixture containing 49.71 grammes of heroin hydrochloride. 

7.  At about 9.10 am, one of the police officers arrested and cautioned the defendant for trafficking in a dangerous drug, and the defendant stated “someone gave me $1,000 to take those white powder to Nam Cheong Street Sitting-out Area”.

8.  Later in the police station, PC26047 also found from the defendant’s possession cash of HK$3,609.60 and three mobile phones.  No suspicious contents were found in the digital contents of those three mobile phones upon the search.

9.  In a subsequent video-recorded interview conducted between 4.14 pm and 4.29 pm on the same day, in gist, the defendant stated under caution that:

(1)  earlier on 23 June 2023, while he was riding on a bicycle near Block 19, Shek Kip Mei Estate, Sham Shui Po, he was asked by an unknown male to take Exhibit 22 to Nam Cheong Street Sitting-Out Area to a person named “Ah Wai”, for which he was promised the reward of HK$1,000;

(2)  he had not yet received the said reward of HK$1,000;

(3)  he had no fixed abode;

(4)  he would receive CSSA payment of about HK$4,000 each month;

(5)  the cash of HK$3,609.60 found from him was his CSSA allowance for supporting his living expenses; and

(6)  the three mobile phones seized from him belonged to himself which he used for communicating with his family.

10.  In June 2023, the estimated street value of all the heroin hydrochloride seized was about HK$64,840. 

11.  Regarding the personal background of the defendant, he is 63 years of age.  He was born in mainland China.  He moved to Hong Kong in 2011 as his wife is a permanent Hong Kong resident.  He was educated up to Secondary Form 2 level in the mainland. 

12.  He was unemployed at the time of the offence.  He relied on CSSA, receiving around HK$4,000 per month.  Previously, he had worked as a renovation worker for 30 years until 2021. 

13.  As far as his health condition is concerned, he was found unconscious in February 2025 in prison and was admitted to the hospital.  He was diagnosed with cholangitis.  A biliary drainage bag is now connected to his body to help drain the bile ducts and relieve pressure.  An operation is scheduled in August 2025.

14.  The defendant’s counsel has confirmed that the defendant has received appropriate treatment for his conditions during remand. 

15.  The defendant has one previous conviction.  He was convicted of the offence of possession of a dangerous drug in December 2021, for which he was sentenced to a drug addiction treatment centre.

16.  The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  The first step is to identify the relevant sentencing band (or bracket)  applicable to the quantity of drug concerned.  The second step is an assessment of the role and culpability of the defendant based on evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes.  It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant.  The fourth step is to consider aggravating factors which bear on the “notional sentence after trial”.  The fifth step is to have regard to any matter of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”.  The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just and balanced sentence”. 

17.  Regarding the first step, for 49.71 grammes of heroin, the applicable guideline tariff band is that of 5 to 8 years’ imprisonment: see HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138, at paragraph 62. 

18.  Second, concerning the defendant’s role and culpability, I accept that the defendant was a courier, in that he was to deliver the drug for someone for a reward.

19.  Third, for 49.71 grammes of heroin, an arithmetical approach towards the guidelines would lead to a notional sentence after trial of 7 years and 11 months’ imprisonment.  Based on my finding of the defendant’s role and culpability under step 2 above, I would adopt that as the notional sentence after trial in this case. 

20.  Fourth, I consider that there is no aggravating factor which would enhance the notional sentence after trial.

21.  Fifth, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely guilty plea, for which I will give him a one-third discount. 

22.  Accordingly, the defendant’s sentence is reduced to 5 years and 3 months’ imprisonment. 

23.  Finally, I consider that a sentence of 5 years and 3 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and in the circumstances of the defendant.

24.  The defendant is accordingly sentenced to 5 years and 3 months’ imprisonment.