HKSAR v. CHAN WAI NOK

HCCC 294/2024

[2025] HKCFI 3412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 294 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges of trafficking in dangerous drugs 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, he confirmed his plea and his agreement to the Summary of Facts through counsel.

2.  The particulars of Charge 1 state that on 14 May 2023 at Ground Floor, Lanton Industrial Building, No. 99 Wai Yip Street, Kwun Tong, Kowloon, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 53.6 grammes of a solid containing 40.2 grammes of ketamine and 2.55 grammes of a solid containing 2.19 grammes of cocaine. 

3.  The particulars of Charge 2 state that on 14 May 2023 at Room 12, 3^rd floor, Lanton Industrial Building, No. 99 Wai Yip Street, Kwun Tong, Kowloon, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 575 grammes of a solid containing 451 grammes of ketamine and 106 grammes of a solid containing 92.7 grammes of cocaine.

4.  The Summary of Facts admitted by the defendant provides,inter alia, as follows. At about 2 pm on 14 May 2023, customs officers in plain clothes saw the defendant entering into Lanton Industrial Building, 99 Wai Yip Street, Kwun Tong, Kowloon (“the Building”)  from the street in a hurry and nervously.  At about 2.45 pm on the same day, the defendant was seen walking out from Ground Floor lift lobby of the Building.  Customs officers reviewed their identity and intercepted the defendant.

Charge 1

5.  Upon search of the defendant’s hoodie front pouch, the followings were found:

(1)  four resealable plastic bags containing a total of 53.6 grammes of a solid containing a total of 40.2 grammes of ketamine (“E1”); and

(2)  a resealable plastic bag containing four small resealable plastic bags containing a total of 2.55 grammes of a solid containing a total of 2.19 grammes of cocaine (“E2”).

6.  The defendant was arrested and stated under verbal caution

that the resealable plastic bags contained perfume, which was a dangerous drug. The perfume came from upstairs at Room 12, 3^rd floor of the Building (“the Room”)  and he was about to deliver it to unknown persons at monetary rewards.

7.  A pink iPhone and a black iPhone, which contained a total of three SIM cards, were found on the defendant. The defendant had with him $3,392 in cash.

Charge 2

8.  The defendant was brought to the Building.  With the passcodes voluntarily provided by the defendant, the doors to the 3^rd floor of the Building and the Room were unlocked.  The Room was about 80 to 100 square feet in size and the only furniture was a sofa and a table.

9.  On the table of the Room, the followings were found:

(1)  a sealed plastic bag and two plastic bowls containing a total of 575 grammes of a solid containing 451 grammes of ketamine (“E3”);

(2)  a plastic bowl containing 106 grammes of a solid containing 92.7 grammes of cocaine (“E4”);

(3)  two resealable plastic bags containing many empty resealable plastic bags; and

(4)  a spoon, a pair of scissors, two electronic scales; and a black marker.

10.  A tenancy agreement and a receipt were found on the floor of the Room.

11.  The defendant stated under verbal caution that E3 and E4 were also dangerous drugs, ie perfume and cocaine. These dangerous drugs belonged to him and he would deliver them to unknown persons at monetary rewards.  The paraphernalia found in the Room were for packing the dangerous drugs for delivery.  He rented the Room for storing the dangerous drugs so that it would be convenient for him to deliver them.

12.  On 21 July 2022, the defendant rented the Room at the monthly rent of $2,600 for 2 years and changed the passcode to the Room’s lock. 

13.  The defendant’s home at Shau Kei Wan was searched with nothing suspicious found.

Video-recorded interview

14.  The defendant stated in the subsequent video-recorded interview under caution that he received education up to Secondary Form 6 and resided at the address in Shau Kei Wan.  He was unemployed and with no income.

Estimated street value

15.  The total estimated street value of E1 to E4 was $434,876.35.

The black iPhone of the defendant

16.  Upon the provision of the passcode to the black iPhone by the defendant, WhatsApp messages exchanged with three contacts between 1 April 2023 and 13 May 2023 were found.

(a)  Messages were exchanged between the defendant and “Fai” between

1 April and 10 May 2023

17.  The defendant paid Fai to insert something into the bags and said that the warehouse had all the bags; asked Fai to pack orders at different quantities; requested Fai to weigh the items and sent the photographs to him via Telegram. Fai asked the defendant about quantity, ie an ounce.  Fai owed the defendant money and other items, for example, 7.4 grammes.  The defendant suggested Fai paying him back in money, that is, $6,000.  The defendant suggested that Fai could sleep in his warehouse and Fai replied that he needed to go to school.  Fai promised that he would continue to pack for the defendant as he had received the money.

18.  68 phone calls were exchanged between the defendant’s phone number and Fai’s phone number 1 April 2023 and 7 May 2023.

(b)  Messages were exchanged between the defendant and Tsim Sha Tsui

Lock Road C (“C”)  between 1 April and 11 May 2023

19.  C asked the defendant about the price for obtaining 1 “piece”, ie a jargon referring to 700 grammes of heroin.  On diver days, the defendant offered to sell C several grammes at several thousand dollars.  At times, C found the prices expensive and bargained about it.  They also made appointments for deliveries and pick up.  At one point, C mentioned that without consumption tools, the defendant must be deemed trafficking, 5 grammes attract 2 odd years’ of imprisonment and safety was the most important.

20.  No phone calls were exchanged between the defendant and C.

(c)  Messages were exchanged between the defendant and “Mack Girl”

between 25 April 2023 and 13 May 2023

21.  The defendant packed and supplied items on behalf of Mack Girl on multiple occasions. The defendant supplied at various quantities, ranging from 2 times to 145 times; 30 pellets at 0.165 grammes per pellet; and 7.5 grammes to 15 grammes.  The defendant also sent photographs of resealable plastic bag containing white solid, some of which were placed on electronic scales for weighing.  One of the electronic scales resembled one that was seized from the Room.  Mack Girl paid the defendant several hundred dollars to $10,000.  The defendant mentioned that he found a young man who had packed on his behalf and could pack on behalf of Mack Girl as well.  However, Mack Girl did not trust the young man.

22.  39 phone calls were exchanged between the defendant’s phone number and Mack Girl’s phone number between 24 April and 14 May 2023.

23.  In the photo album of the defendant’s black iPhone, there were also other photographs of resealable plastic bags containing white solid, some of which were placed on an electronic scale for weighing.

24.  As to the personal background of the defendant, he is 24 years of age (22 years old at the time of the offence).  He has a clear record.  He is single and lived with his parents.  He attained an education level up to   Form 6.

25.  For a number of years, he used to work in a beverage shop earning a small, but stable income to support himself and his parents.  However, shortly before his arrest, he was laid off.  Being unemployed for weeks, the defendant was lured to earn “quick money” for storing and delivering dangerous drugs.  I am told that he is now extremely remorseful. 

26.  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 concerns.  The second step is an assessment of the role and culpability of the defendant based on the evidence before the court.  The third step is to identify where in the relevant band of the guideline 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 the aggravating factors which bear on “the notional sentence after trial”.  The fifth step is to have regard to any matters 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”.  

27.  Regarding the first step, the task is to identify the appropriate range applicable to the quantity of drugs concerned.

28.  Looking at Charges 1 and 2 together, the narcotic contents of the total quantity of dangerous drugs seized (ie E1 to E4)  were 94.89 grammes of cocaine and 491.2 grammes of ketamine.  

29.  In HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138, the guideline bracket for a quantity of 94.89 grammes of cocaine is 8 to 12 years’ imprisonment.  According to Secretary For Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the guideline bracket for a quantity of 491.2 grammes of ketamine is 9 to 12 years’ imprisonment. 

30.  As two different kinds of drugs were involved with a combined weight of 586.09 grammes, in order to assist me in identifying the overall starting point of the offences, the “Absurdity Test”, “Ratio Test”, and “Conversion Test”  as explained in HKSAR v Chan Yuk Leong, CACC 318/2013, (Judgment dated 8 April 2014)  have been conducted, with the following results:  16 years and 4.1 months under the Absurdity Test, 12 years and 7 months under the Ratio Test, and 12 years and 8.6 months under the Conversion Test.

31.  Having considered the above results in the round and taking into account that more than one type of dangerous drugs is involved, I consider that the starting point of 12 years and 8.6 months would be appropriate in the present case.  This is purely based on the quantity and types of drugs involved, before any consideration of the defendant’s role in the offence. 

32.  Second, concerning the defendant’s role and culpability, my assessment should be based upon the evidence before the court, whether by admission or by direct or circumstantial evidence: see Herry Jane Yusuph,  supra at paragraphs 58 and 61.  From the Summary of Facts as admitted by the defendant, clearly, the defendant was engaged in the actual (or direct)  trafficking of the dangerous drugs, as opposed to only being a courier or storekeeper, as explained in Herry Jane Yusuph at paragraphs 61 to 63. 

33.  Third, in view of my aforesaid finding of the defendant’s role and culpability, I consider that a total sentence of 13 years and 6 months’ imprisonment would be the appropriate overall notional sentence after trial for the two offences in question.

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

35.  Fifth, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely plea, for which I will give him a one-third discount. Accordingly, the defendant’s overall sentence is reduced to 9 years’ imprisonment.

36.  Finally, I consider that an overall sentence of 9 years’ imprisonment is a fair, just, and balanced sentences in all the circumstances of this case and in the circumstances of the defendant.

37.  To achieve the totality of 9 years’ imprisonment, I sentence the defendant as follows:

(1)  the defendant is sentenced to 3 years and 9 months’ imprisonment on Charge 1;

(2)  the defendant is sentenced to 8 years and 4 months’ imprisonment on Charge 2;

(3)  I order that 8 months of the sentence on Charge 1 are to run consecutively to the sentence of Charge 2, thus resulting in a total sentence of 9 years’ imprisonment.