HKSAR v. LEUNG KA KIT

HCCC 92/2023

[2025] HKCFI 6121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 92 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of trafficking in dangerous drugs[1] before Magistrate Mr. Lam Tsz Kan, admitted to the summary of facts and was committed, on 17^th April 2023, to the Court of First Instance for sentence. He confirmed his pleas and admissions before me and the convictions were duly recorded.

2.  Particulars of count 1 are that, the defendant on 23^rd March, 2021, at the area around the carpark of Rosedale Hotel Kowloon, No. 86 Tai Kok Tsui Road, Kowloon, unlawfully trafficked in a dangerous drug, namely 1.75 grammes of a solid containing 1.53 grammes of cocaine.

3.  Particulars of count 2 are that he, on the same day, at Room 2618, 26^th floor of the same Rosedale Hotel, unlawfully trafficked in dangerous drugs, namely, (1)  1.2379 kg of a crystalline solid containing 1.2371 kg of methamphetamine hydrochloride (commonly referred to as ‘ice’); (2)  239.3 g of a mixture containing 208.3 g of heroin hydrochloride; and (3)  22.7 g of a solid containing 20.7 g of cocaine.

FACTS

4.  The defendant was seen leaving the carpark of Rosedale Hotel shortly before 1:10pm on 23^rd March 2021 furtively.  Upon interception by police officers in ambush, the defendant claimed that he was staying at Room 2618 of the hotel with a friend.

5.  The defendant was searched and the dangerous drugs particularized in count 1 were found from 10 plastic bags that were in his front left trousers pocket.  He also had the key to Room 2618, 2 mobile phones and $26,500 of cash on his person.

6.  The defendant was arrested and claimed under caution that the drugs were for his own consumption.

7.  Police officers then proceeded to conduct a raid on Room 2618.  A female, later found to be one Lam Chui Ying, who was the second defendant in this case, opened the door and immediately dashed to the bed upon seeing the police officers.

8.  The room was searched and all the drugs particularized in count 2 were found from a total of 17 plastic bags inside a yellow recycled bag on the television table.  Packaging paraphernalia such as re-sealable plastic bags, plastic wrap and a digital scale were also found inside the bag.  

9.  The defendant and the female were both arrested.  The defendant claimed under caution that he was unemployed, and that he trafficked in the drugs found inside the room for money.

10.  In his subsequent video recorded interview, the defendant claimed that he intended to sell the drugs found in his trousers pocket to some friends in Nam Cheong Street, and that he knew they were cocaine.  

11.  He claimed he was doing it for a male known to him as ‘Go Fai’, whom he met through a friend at the Nam Cheong Street sitting-out area.  Go Fai paid the defendant money for trafficking in the drugs.  The defendant claimed he did not have Go Fai’s contact number, but would usually run into him at the sitting-out area.

12.  As to the drugs found in Room 2618, the defendant claimed that they all belonged to him and that no one else had entered the room during his stay there since 18^th March 2021.  He knew they were methamphetamine, heroin and cocaine.  

13.  The defendant said the packaging paraphernalia were for weighing and packaging the drugs.  He would sell the cocaine at $400 per 0.4g, the ice at $500 per 1.75g, and the heroin at $7,500 per 14.17g.  

14.  The drugs that the police found on him and in his hotel room were obtained from ‘Go Fai’ at the sitting-out area a few days ago on 18^th March 2021, which was also the day that the defendant had started selling the drugs.  He had made roughly more than $10,000 so far, and the money found on his person was drug money.  

15.  The defendant claimed that because his identity card was damaged, he was not able to book the hotel room and someone else had done it for him.  

16.  By his admission to the Summary of Facts, the defendant had accepted that he had trafficked in the dangerous drugs seized from his pocket and Room 2618.

PREVIOUS CONVICTION

17.  The defendant has 4 previous convictions.  The first two were for possession of Part I poison, when he was ordered to be detained at the Drug Addiction Treatment Centre (“DATC”)  in December 2009.  His next two convictions were also drug related, being the possession of equipment fit for smoking dangerous drugs, and the possession of dangerous drugs, for which he was ordered to receive further treatment at the DATC in March 2015.

BACKGROUND AND MITIGATION

18.  The defendant was born into a fisherman family in April 1980 and is 45.  He was raised by his grandmother and educated up to Form 3 level.  He started working as a painter’s apprentice to support his family at the age of 15.  He began working as a decoration worker in 1996, and was engaged in casual decoration work from 2019 to September 2020, earning between $10,000 to $12,000 monthly.  He lost his job in September 2020 due to the COVID-19 pandemic.

19.  As a result of his father’s business failure in around 2004, they lost their family home, and the defendant’s then girlfriend left him.  The father passed away in 2018.  The defendant was living with his 70-year old retired mother before his present remand.  His younger brother died in 2019 from sickness.  One of his two younger sisters had recently been diagnosed with nasopharyngeal cancer.  The defendant used to contribute financially to his family.

20.  The defendant’s present girlfriend suffers from depression due to past emotional trauma, and the defendant had been taking care of her from 2016 to 2021.  

21.  Ms. Annie Lai, counsel for the defendant, informed the court that the defendant has been addicted to the  drug ‘ice’ for over 10 years, and that as a result of the financial difficulties from the pandemic, the defendant committed the offences under the influence of a drug trafficker, which he now deeply regrets.

22.  The defendant has enrolled in further education courses in prison, including the “Life Transformation Certificate Course” organized by the International Grace Theological Institute and Christian Pastoral Association.  He is also preparing to enrol in a course offered by The Ethics College through the Correctional Services Department and Metropolitan University, hoping to contribute to society in the future.

SENTENCING

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

24.  The sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Huang Ruifang [2025] HKCA 234, and HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1 are applied as follows.  

25.  Given the proximity in time and location of the defendant’s possession of the drugs in the two charges, he will be sentenced for the total quantity of drugs found on his person and in Room 2618.

Step 1: The applicable guideline tariff bands

26.  For the 1,237.1g of ice, the 230.53g of heroin and cocaine that share the same guideline tariffs, the applicable bands are, respectively, “18 to 20 years”, and “12 to 16 years”.

Step 2: The defendant’s role and culpability

27.  According to the Summary of Facts, the defendant had intended to sell the cocaine on his person to a friend, as such, for that portion of the drugs, he was a direct trafficker.

28.  As for the drugs in Room 2618, it is the defendant’s admission that no one else had entered the room during his stay; that the packaging paraphernalia found inside were used to weigh and package the drugs there; and that he would sell the cocaine, ice and heroin at different prices.  

29.  By the defendant’s own admission, his role was more important than that of a courier or storekeeper, and he is culpable for the packaging and direct trafficking of the drugs, which must be reflected in the adoption of a higher notional starting point than that of the simple courier or storekeeper.  

Step 3: The relevant band within the guidelines

30.  The arithmetical application of the tariffs would lead to the corresponding notional starting points for the ice and heroine/cocaine of, respectively, 19 years 5 months, and 12 years 5 months.

31.  Although three different types of drugs were trafficked, two of them share the same guideline tariffs.  In line with HKSAR v Yip Wai Yin [2004] 3 HKC 367, I adopt the combined approach, and have applied the absurdity, conversion and ratio tests as used in HKSAR v Chan Yuk Leong CACC 318/2013 to assist me in arriving at the appropriate sentence.  

ABSURDITY TEST

32.  On the basis of all 1,467.63g of narcotics were the slightly more potent drug of ice, any combined starting point above 19 years 11 months, before taking into consideration enhancements, would be regarded as absurdly high.  

CONVERSION TEST

33.  If the heroin/cocaine is converted into ice that would yield the equivalent sentence of 12 years 5 months, the total converted quantity of ice would be 1,388.01g, which would have a notional starting point of 19 years 9 months.  Again, this would be before taking into consideration any enhancements for the defendant’s role and culpability.  

RATIO TEST

34.  Based on the proportion of the different drugs involved, the sentence should be about 19 years 11 months.

THE COMBINED NOTIONAL STARTING POINT

35.  Having regard to the above test results, taking into consideration the defendant’s role and culpability, I will adopt a combined starting point of 20 years 9 months’ imprisonment.

Step 4: Aggravating factors

36.  For the aggravating factor of the defendant trafficking in 3 different types of drugs, thus being able to cater to a wider market[2], considering the quantities of the different drugs involved, I will enhance the sentence by 3 months, taking the combined starting point to 21 years.

37.  As for the defendant’s previous drug related convictions, I find that with their different nature and the fact that the last conviction was some 10 years ago, there should not be any enhancement in sentence on this basis.  

Step 5: Mitigating factors

38.  Ms. Lai referred to the case of HKSAR v Kilima Abubakar Abbas (18/09/2018, CACC143/2016)  [2018] 5 HKLRD 88, [2018] HKCA 602 and suggests that there should be a discount for the defendant’s participation in Father Wotherspoon’s campaign, in the form of a letter that the defendant had written that was published on the Voice for Prisonsers website, where the defendant had set out his life story and sought leniency from the court.  The contents of the letter would probably lead the reader to perceive the defendant as a selfless person who had taken in and looked after his drug-addicted girlfriend despite her addiction, with no mention of the defendant’s own 10-year long addiction to ‘ice’, and just a passing mention of how he had resolved to ‘quitting drugs’ while in custody.

39.  The defendant was not exploited as a drug mule as the applicant was in Kilima.  Although the defendant had allowed his letter in mitigation to be adapted and published on Father Wotherspoon’s campaign website, I find that the posting of his letter could not have contributed much to repairing the harm his trafficking had done to our society, as the applicant had done in Kilima.  As such, I exercise my discretion and refuse to grant a reduction on this ground.

40.  I have also considered the “Life Transformation Certificate Course” that I am told the defendant had enrolled in, and a future course that he is preparing to enroll in, and I find that they do not merit any meaningful reduction in sentence at this stage.  

41.  Furthermore, having perused all the materials placed before me, which I find to be complete and accurate, and of sufficient particularity, I find that the only mitigating factor is the defendant’s timely guilty pleas, for which he is given the usual one-third discounts.  

Step 6: Totality

42.  Taking a step back, I find the final sentence to be imposed fair, just and balanced.

FINAL SENTENCE

43.  With a combined notional starting point for the two counts of 21 years, the total sentence after plea is 14 years.  

44.  To achieve this, I sentence the defendant to 20 months’ imprisonment on count 1 after plea; and to 14 years’ imprisonment on count 2 after plea.  The sentences to be served concurrently, resulting in a final sentence of 14 years’ imprisonment for the two counts after plea.