HKSAR v. CHEN WAI HUNG

DCCC 124/2025
[2025] HKDC 1671
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 124 OF 2025
________________________
HKSAR
V
CHEN WAI HUNG
________________________
Before:
Deputy District Judge Colin Wong
Date:
30 September 2025
Present:
Ms Wong Hei Man, Jaime, Public Prosecutor for HKSAR/Director of Public Prosecutions
Mr Boyton David Rex, instructed by T K Tsui & Co, for the defendant
Offence:
Trafficking in dangerous drugs（販運危險藥物）
________________________
REASONS FOR SENTENCE
________________________
1.
The Defendant pleaded guilty to one charge of “Trafficking in dangerous drugs”
[1]
, namely 0.36 gramme of solid containing 0.3 gramme of ketamine and 16.72 grammes of a solid containing 13.28 grammes of cocaine.
ADMITTED FACTS
2.
At about 2218 hours on 25 October 2024, police officers found the Defendant sitting in the driver’s seat of a stationary private car bearing registration number RW8385 (the “Car”)  parked on Cheung Shan Estate Road West, Tsuen Wan, New Territories, Hong Kong.
3.
Upon search of the Car, a plastic bag containing 0.25 gramme of a solid containing 0.21 gramme of ketamine and a paper folded into a packet containing 1 piece of paper and 0.11 gramme of a solid containing 0.09 gramme of ketamine were found from the sun visor at the driver’s seat of the Car.
4.
The Defendant was arrested by PW2 for the offence of “possession of a dangerous drug”. Under caution, the Defendant admitted to have consumed ketamine for stress relief.
5.
Upon further search, the following items were found inside the Car: -
(i)  2 plastic bags containing a total of 0.54 gramme of a solid containing 0.49 gramme of cocaine were found from the compartment underneath the handbrake;
(ii)  19 plastic bags containing a total of 4.94 grammes of a solid containing 3.95 grammes of cocaine;
(iii)  20 plastic bags containing a total of 5.25 grammes of a solid containing 4.12 grammes of cocaine;
(iv)  19 plastic bags containing a total of 4.98 grammes of a solid containing 3.93 grammes of cocaine; and
(v)  4 plastic bags containing a total of 1.01 grammes of a solid containing 0.79 gramme of cocaine were found.
6.
Cash in the total sum of HK$6,000 (consisting 300 banknotes of HK$20 denomination)  were found from the glove box in front of the front passenger seat; cash in the total sum of HK$4,350 were found from the glove box next to the driver’s seat.
7.
The Defendant was further arrested by PW2 for the offence of “Trafficking in dangerous drugs”.  Under caution, the Defendant stated that he trafficked in dangerous drugs to earn money for his family.
8.
On 26 October 2024, a cautioned video-recorded interview (“VRI”)  was conducted.  The Defendant admitted the offence, and also stated that:-
(i)  The Defendant committed the offence to earn more money to support the living expenses of his family members;
(ii)  The defendant was invited by his friend to take part in trafficking in dangerous drugs. He refused to disclose his friend’s identity;
(iii)  The ketamine seized from the sun visor were bought from an unknown person at the price of HK$300 in Tsuen Wan during the evening on 25 October 2024, whilst the cocaine were bought from an unknown person in Yuen Long on around 20 October 2024 at the price of HK$9,000;
(iv)  The Defendant placed all the dangerous drugs in the Car by himself and all the dangerous drugs seized by police belonged to him; and
(v)  Part of the dangerous drugs was intended for self-consumption. However, the Defendant had not differentiated which part of dangerous drugs was to be used for trafficking and which part were for self-consumption.
9.
The street value of the relevant quantity of ketamine and cocaine at the time of the offence were estimated to be HK$138.90 and HK$11,354.40 respectively.
MITIGATION
Sentencing Principles
10.
Defence’s submission follows the six-step approach laid down in
HKSAR v Herry Jane Yusuph
[2]
. These submissions and the application of the six-step approach, on these facts are not affected by
HKSAR v Lee Ming Ho
[2024] 1 HKLRD 1186.
11.
Step 1 and 2
- the initial
starting point
for each individual type of dangerous drug.
13.28 grammes of cocaine narcotic
12.
According to guidelines laid down in
Attorney General v Pedro Nel Rojas
[3]
,
R v Lau Tak Ming and another
[4]
and
HKSAR v Huang Ruifang
[5]
, this amount falls within the tariff band of between 10 grammes and 50 grammes of narcotic, which equates to a term of imprisonment of 5 to 8 years.  A purely mathematical approach would arrive at a sentence of 5 years and 2 months’ imprisonment after trial.
0.3 gramme of ketamine narcotic
13.
Similarly, according to
SJ v Hii Siew Cheng
[6]
at paragraph 95 laid down the tariff for trafficking in both ketamine and ecstasy.  The amount falls in the lowest band, but the two lowest bands are quoted from the judgment:
(1)  up to 1 gramme: within the sentencer’s discretion.
(2)  over 1 gramme to 10 grammes: 2 to 4 years’ imprisonment.
14.
Again, despite the insignificant amount, a purely mathematical approach would arrive at a sentence of 1 year and 3 months’ imprisonment after trial.
COCKTAIL OF DANGEROUS DRUGS
15.
Defence submitted on the various approaches have been taken to deal with the sentencing of different types of dangerous drugs. See
HKSAR v Yip Wai Yin and anor
[7]
and
HKSAR v Wan Lau Mei
[8]
。
16.
The most potent dangerous drug is clearly the cocaine, and even if the 0.3 gramme of ketamine were to be treated as cocaine, the 13.58 grammes would result in a sentence only a very slight increase, as a mathematical calculation of that figure achieves an initial starting point of 5 years and 3 months’ imprisonment.
17.
The Defendant does not propose to adopt the other tests in any great detail, in this mitigation submission, as they will produce significantly and disproportionately higher starting points.
18.
The Judge is entitled to aggravate this initial starting point at
Step 4
.  However, the Sentencing Judge must also consider the fact that:
(i)  the ketamine is an insignificant amount when compared to the cocaine;
(ii)  for all drug trafficking tariffs the lowest band has the greatest element of deterrence;
(iii)  The Court of Appeal specifically indicated that the sentencing was at the tribunal’s discretion; and
(iv)  the Defendant claimed that he consumed the ketamine for relieving stress (para 4 of the Summary of Facts); and the said drugs were stored separately from the cocaine, which were split into 64 individual packets.
19.
The figure (sentence)  should then be subject to cross-checking as suggested in
HKSAR v Chan Yuk Leong
[9]
.  There are a number of different checks suggested by the Court of Appeal, these are simply repeated at this stage for the information of the court as the Defendant submits 5 years 2-3 months is the correct starting point.
20.
Firstly, the Absurdity Test, Defence has adopted above submission regarding the insignificant amount of ketamine.
21.
The second is the Conversion Test. It is submitted that the conversion test would not be applicable.
22.
The third is the Ratio Test.
23.
For a matter of completeness, there is also the individual approach, where the sentence for each drug is added together.  In the instant case is clearly going to manifestly excessive as it comes to 6 years and 5 months imprisonment.  This also illustrates the point made above that because the ketamine is in the lowest band, the inbuilt element of deterrence is the greatest
24.
Step 3
– The Defendant is no more than a courier as he has kept the cocaine at least in his white private car; and it is therefore submitted that entry point within the band does not have to be adjusted.
25.
His admissions were at paragraphs 7(4)  and 7(2)  that a friend invited him to trafficking in dangerous drugs; and at the time he was arrested, he was engaged in the trafficking of dangerous drugs and waiting for the buyer.
26.
Step 4
– save and except that there was a possibility that the defendant was trafficking in different types of dangerous drugs, there are no aggravating features.  He is a Hong Kong resident with only one previous conviction in 2002 (23 years ago when he was a twenties).  He does have two previous convictions for possession of dangerous drugs in 2005 and 2015 which adds credence to his assertion at the time of his arrest that the ketamine was for self-consumption.  The age and number of these convictions should not affect the initial starting point.
27.
The enhancement, if any, would take the sentencing Judge to the ‘
notional starting point
’.
28.
Step 5
- The mitigation factors will include the guilty plea, the Defendant’s personal background and his self-consumption. Dealing with these in turn.
Guilty Plea
29.
The guilty plea was entered at the earliest opportunity and the Defendant is entitled to a full one-third discount from the “
notional starting point
”.
Personal Background
30.
The Defendant is 40 years of age and was born in Hong Kong in 1985.  He does not dispute his antecedent statement dated 7 September 2025.
31.
The Defendant has a criminal record.  Of relevance are two “
Possession of Dangerous Drugs
” convictions: one in 2005 for which he was sentenced to two months’ imprisonment which was suspended for 12 months; the other took place 10 years later in 2015 for which he was sentenced to 10 days imprisonment.  This shows his last dangerous drug-related conviction was 10 years ago and he has never been convicted of trafficking.
32.
He was educated to Primary 6; a construction-cum-decoration worker and lived with his family (his wife and 8-year-old daughter)  in North Point at the time of his arrest.
33.
The Defendant has been remanded since his arrest.
34.
There are four mitigation letters attached to these submissions from his wife, daughter, brother and employer.
Self-consumption
35.
As already indicated, the Defendant asserts that as a mitigating factor, the ketamine was for his self-consumption.  This, of course, will already be subsumed at the early steps, and the Defendant accepts that possession of dangerous drugs itself carries a term of imprisonment.
36.
The self-consumption of the ketamine is supported by:
(i)  The small amount of drugs seized (by weight);
(ii)  The value of the ketamine is $138.90;
(iii)  It was separated from the cocaine albeit located within the car;
(iv)  His initial admission at paragraph 4 of the Summary of Facts, and it is submitted that this is not affected by the subsequent video admissions in the video record interview at paragraph (5); and
(v)  Furthermore, the ketamine was found in paper and as explained by the defendant, “
poured the content of the packer onto a piece of paper for inhalation
”.
37.
The urine test reports from Lai Chi Kok Reception Centre, taken on 29 October 2024, show that the Defendant tested negative for the consumption of
‘Cocaine’
.  However, the urine tests did not cover or include ketamine, and in this regard, the Defendant should be given the benefit of the doubt.  It is submitted that ketamine and Benzodiazepines (“Benzo”)  are completely different chemical compounds which have different effects on the human body; the latter category has a calming effect on the mind.
38.
In relation to the cocaine, the Defendant accepts that he cannot rely on
HKSAR v Tsang Chung Keung
[10]
,
HKSAR v Chow Chun Sang
[11]
or
HKSAR v Tam Ling Yuen
[12]
, the ketamine did not involve a ‘
significant proportion of the dangerous drugs
[which]
was for self-consumption’.
39.
The other aspect of the Defendant’s admissions shows that he cannot differentiate between which drugs were for self-consumption and which for trafficking.  This must relate only to the cocaine, as the ketamine was easily accessible and stored separately.
40.
Step 6
- The final step is to stand back and observe the overall sentence to ensure that it is fair, just, and balanced.
CONSIDERATION
41.
The sentencing principles and approach specific to drug trafficking offences were laid down in the judgment of the Court of Appeal in
HKSAR v Herry Jane Yusuph
.  I am reminded to the 6 steps approach as summarised in the mitigation.
42.
I have also considered the principles and approach laid down in
HKSAR v Yip Wai Yin and Anor
and
HKSAR v Islam S M Majharul
[13]
when dealing with trafficking in cocktail drugs.
43.
In
HKSAR v Huang Ruifang
, the Court of Appeal laid down guid
elines for trafficking in heroin
and cocaine.  Between 10 grammes and 50 grammes of narcotic, which equates to a term of imprisonment of 5 to 8 years.
44.
In
Secretary for Justice v Hii Siew Cheng
, the starting point for trafficking up to 1 gramme of ketamine is within the sentencer’s discretion, for trafficking over 1 gramme to 10 grammes is 2 to 4 years imprisonment and for trafficking over 10 to 50 grammes is 4 to 6 years imprisonment.
45.
On pure mathematical calculation, 13.28 grammes of cocaine will result in 5.2 years starting point
[14]
. Defence submitted the amount of ketamine is insignificant, it can be ignored
[15]
. In any event, if we considered the combined approach, ketamine would not significantly affect the sentence.
46.
In making such calculation, I consider Cocaine is more potent and serious drugs, therefore I adopt the same as the base drug.  After calculations
[16]
, the following results are found:
Individual Approach:
Ketamine (0.3 gramme)
0.6 year
Cocaine (13.28 grammes)
5.2 years
Total:
5.8 years
Combined Approach (Cocaine as base drug)
Absurdity Test
5.2 years
Conversion Test
5.3 years
Ratio Test
5.1 years
47.
I do consider Individual Approach is manifestly excessive, I would not adopt the same.  For the combined approach, according to the calculations, the starting point of imprisonment will be between 5.1 - 5.3 years.  According to his answers in VRI, the Defendant purchased the drugs for the purpose of trafficking.  In doing so, the Defendant was in fact in the business of trafficking, buying the drugs for resale, and to earn the profits.  The Defendant must have done the actual or direct trafficking in order to make a profit.  Therefore, I am of the view that the Defendant is more than a courier and storekeeper.  The Defendant was the actual trafficker.  However, looking at the overall circumstances, I consider that the Defendant was a small operator.  Considering all the above, I am of the view that appropriate starting point of imprisonment is 5.3 years, which is 63 months.
48.
For the aggravating factors, I have considered the defence submission that the ketamine is for an insignificant amount when compared to cocaine, and the ketamine is for relieving stress, which is for self-consumption.  This is supported by what Defendant said after cautioned.  I accept this submission.  Therefore, I would not enhance his sentence for trafficking two types of drugs.  I have also considered his criminal record.  He had one “Trafficking in Dangerous Drugs” conviction in 2002 and 2 “possession of dangerous drugs” conviction in 2005 and 2015.  I would not consider the Defendant as repeated offender to enhance the starting point.
49.
Therefore, considering the starting point of 63 months, given his timely-plea that warrants a 1/3 discount, the sentence would be 42 months’ immediate imprisonment.
50.
For mitigation, defence pleaded self-consumption.  The ketamine did not involve a “significant proportion” of the dangerous drugs.  For cocaine, the defendant tested negative for consumption of cocaine.  Defendant did not give evidence.  There is no evidence before me, including his VRI, to support that a significant proportion of cocaine is for self-consumption. Therefore, I would not give any discount for self-consumption.
51.
I have also considered all other mitigation advanced.  I see no other mitigating factors that warrant a reduction in sentence.
52.
Therefore, the sentence is 42 months’ immediate imprisonment.
( Colin Wong )
Deputy District Judge
Annexure 1
Calculation
Individual Approach
Ketamine [0.3 g]:  (0.3-0)/(2 - 0)  x (2 - 0)  + 0 = 0.6 year
Cocaine [13.28 g]:  (13.28 - 10)/(50 - 10)  x (8-5)  + 5 = 5.2 years
Total:   (0.6 + 5.2)  = 5.8 years
Absurdity Test
Total Weight:  13.58 g
Cocaine:  (13.58 - 10)/(50 - 10)  x (8 - 5)  + 5 = 5.2 years
Ketamine:  (13.58 - 10)/(50 - 10)  x (6 - 4)  + 4 = 4.1 years
Conversion Test
Cocaine as base drugs
0.3 years sentence of Ketamine:  (0.3 - 0)/(5 - 2)  x (10 - 0)  + 0 = 1 g
Total:  (13.28 + 1)  = 14.28
Starting Point:  (14.28 - 10)/(50 - 10)  x (8 - 5)  + 5 = 5.3 years
Ketamine as base drugs
5.2 years sentence of Cocaine = Ketamine: (5.2 - 2)/(4 - 2)  x (10 - 1)  + 1 = 15.4  g
Total:  (0.3 + 15.4)  = 15.7 g
Starting Point:  (15.7 - 10)/(50 - 10)  x (6 - 4)  + 4 = 4.2 years
Ratio Test
Total Weight:  13.58 g
Cocaine:  97.8%
Ketamine:  2.2%
Starting Point:  (5.2 x 97.8%)  + (4.1 x 2.2%)  = 5.1 years
[1]
Contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134
[2]
[2021] 1 HKLRD 290
[3]
[1994] 2 HKCLR 69
[4]
[1990] 2 HKLR 370
[5]
[2025] 2 HKLRD 138
[6]
[2009] 1 HKLRD 1
[7]
[2004] 3 HKC 367
[8]
[2014] 4 HKC 75
[9]
CACC 318/2013
[10]
[2015] 1 HKLRD 450
[11]
[2012] 2 HKLRD 1211
[12]
[2016] 2 HKLRD 572
[13]
[2020] 3 HKLRD 146
[14]
See Annexure 1
[15]
See
HKSAR v Cheung Wai Man
[2018] HKCA 731
[16]
See Annexure 1