HKSAR v. YU CHAK MING

HCCC 356/2025

[2026] HKCFI 3840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 356 OF 2025

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to one count of trafficking in a dangerous drug before a Magistrate on 13^th October 2025 and was committed to this Court for sentence. The particulars of the charge are as follows: On 21^st day of October 2023, at Flat 1615, 16^th Floor, T Plus, No. 2 Tsing Min Path, Tuen Mun, New Territories, in Hong Kong (“the Flat”), the Defendant unlawfully trafficked in a dangerous drug, namely 460 grammes of a solid containing 377 grammes of cocaine.

2.  The Defendant confirmed his guilty plea to the charge and admission of the Summary of Facts today.

SUMMARY OF FACTS

3.  The facts which the Defendant admitted can be summarised as follows. 

4.  At about 6:45 p.m. on 19^th October 2023, a customs officer (“the officer”)  spotted the Defendant at the pavement outside T Plus, 2 Tsing Min Path, Tuen Mun (“T Plus”). The officer saw the Defendant entering T Plus and then lost track of him. Upon viewing the CCTV at the security office of T Plus, the Defendant was seen exiting the lift on 16/F.

5.  Further investigation was carried out on the Defendant’s exact location by planting markings on 16/F and monitoring live CCTV. At about 7:26 p.m., the Defendant was seen entering the lift on 16/F and leaving T Plus empty-handed. Upon investigation, it was confirmed that the Defendant went to the Flat. No one, other than the Defendant, had entered or exited the lift on 16/F between 6:45 p.m. and 7:25 p.m..

6.  At about 9:50 p.m. on 20^th October 2023, the officer saw the Defendant on the pavement outside T Plus. He was carrying a red paper bag. Subsequently, he entered T Plus.

7.  At about 00:00 hours on 21^st October 2023, the officer saw the Defendant leaving T Plus empty-handed. The Defendant was intercepted. Upon search, a black key card and a blue mobile phone were found from the front right pocket of the Defendant’s trousers. The Defendant stated that the key card was for opening the door of the Flat.

8.  Customs officers then entered the Flat using the key card found on the Defendant. A search was conducted in the Flat, with the following items found:

(a)  A plastic box containing 460 grammes of a solid containing 377 grammes of cocaine;

(b)  A bundle of plastic bags;

(c)  2 electronic scales with battery;

(d)  1 sealer; and

(e)  1 paper bag.

9.  Under caution, the Defendant admitted that the substance inside the plastic box was cocaine and that the same belonged to him. After packaging the cocaine, he would wait for someone to call him for instructions on delivery. He would receive HK $8,000 for each delivery. He further said that the electronic scale and the sealer were for packaging the dangerous drug.

10.  A tenancy agreement was seized from a table in the Flat. The Defendant admitted that he rented the Flat and he was the only person in possession of the key card to the Flat. The landlord of the Flat confirmed that the Flat was leased to the Defendant from 25^th July 2023 to 24^th July 2025.

11.  Screening of the Defendant’s mobile phone was conducted. A video dated 20^th October 2023 shows the following: (a)  a block of substance was weighed on an electronic scale, (b)  the substance was unpacked and put in a plastic box, and (c)  a bag of white substance was put in a bowl and weighed on the electronic scale. There were also photographs of dangerous drugs taken on the same date.

BACKGROUND AND MITIGATION

12.  The Defendant is 24 years old. He completed form 6 education. He has worked as a waiter and a transport worker. He has one previous conviction of unlawful possession of dutiable goods. He was sentenced, on 15 April 2023, to 4 weeks’ imprisonment suspended for 18 months and fined HK $4,000. He committed the present offence during the period of the said suspended sentence.

13.  Ms. Josephine Tjia, counsel for the Defendant, submitted that the Defendant first showed symptoms of psychosis after a breakup with his girlfriend in about 2021 and was admitted to Kwai Chung Hospital. In mid-2022, the Defendant’s stepfather sadly committed suicide due to pandemic-related financial hardship. This traumatised the Defendant and triggered a relapse, in which he was sent to the hospital for medical treatment.

14.  After his stepfather’s death, the Defendant was the only bread-winner and caretaker in the family. From April to June 2023, he worked as an airport transport worker on a short term contractual basis, earning approximately HK $10,000 per month. In about July 2023, he accepted a job offer from a girl in Lan Kwai Fong to make quick money, leading to the present offence.

15.  Whilst remanded in custody, the Defendant suffered from a psychotic relapse and set fire to himself which caused serious injuries. Ms. Tjia submits that he is now mentally stable with good medication adherence. Ms. Tjia also confirms that at all material times, the Defendant was intellectually aware of what he was doing, and that it was his conscious decision to make quick money by trafficking in a dangerous drug.

16.  Four mitigation letters, from the Defendant, the Defendant’s mother, and two of his previous church mentors, have been submitted to this Court, the contents of which have been noted.

SENTENCING

17.  With the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

Step One: Trafficking Guideline

18.  The present case concerns 377 grammes of cocaine, which falls into the revised guideline band of 200 to 500 grammes with a starting point of 12 to 16 years of imprisonment, according to HKSAR v Huang Ruifang(No.3) [2021] 1 HKLRD 290. On a purely mathematical calculation, the notional starting point is 14 years and 4 months (i.e. 172.32 months)  of imprisonment.

Step Two: The Defendant’s role and culpability

19.  It is well-established that for sentencing purpose, the starting point would be calculated arithmetically based on the quantities of the dangerous drugs concerned in the absence of evidence to show that the role of the Defendant was anything other than that of a courier or storekeeper (Herry Jane Yusuph).

20.  In the present case, the Defendant admitted under caution that the electronic scale and the sealer were for packaging drugs. After he packaged the cocaine, he would wait for instructions on delivery to others.  Since the Defendant was responsible for weighing and packaging the drugs, his culpability is higher than that of a mere courier or storekeeper.

21.  In relation to the role of the Defendant, the Court of Appeal held in HKSAR v Islam Shafiqul [2020] 5 HKLRD 471 that an offender who had access to drug-storage premises, packaging equipment, and drug transaction records was more than a mere courier and was operating a packaging and distribution centre. 

Step Three: Starting Point

22.  For the role and culpability of the Defendant in the present case, I am of the view that an enhancement of 3 months is appropriate. I therefore adopt 14 years 7 months of imprisonment (i.e. 175 months)  as the notional starting point. 

Step Four: Aggravating Factors

23.  Although the Defendant has one criminal record in 2023, it is not related to dangerous drugs. Therefore, I will not regard it as an aggravating factor. There are no further aggravating factors in this case.

Step Five: Mitigating Factors

24.  I have taken note of the Defendant’s personal and family circumstances. However, I do not regard them as valid mitigating factors. The Court of Appeal emphasized in Herry Jane Yusuph that personal circumstances will count for little in a case concerning trafficking in dangerous drugs, unless they are exceptional in this particular branch of criminal sentencing (at paragraph 73). The only mitigating factor is therefore the Defendant’s timely plea of guilty, for which he is granted the full one-third discount.

Step Six: Overall Sentence

25.  After applying the discount, the sentence of the Defendant is reduced to 9 years 8 months’ imprisonment (i.e. 116.67 months). I am satisfied that this sentence is fair, just and balanced.

Suspended Sentence

26.  The Defendant committed the present offence when a suspended sentence of 4 weeks was in force. Ms. Tjia submitted that the Court should not activate the suspended sentence, because the Defendant would be facing a very lengthy sentence anyway. She also submitted that the present offence is not of a similar nature. I regret to find that these propositions are contrary to the well-established legal principles laid down by the Court of Appeal on various occasions.

27.  I have considered s.109C of the Criminal Procedure Ordinance (Cap.221)  and the relevant case authorities. Mere dissimilarity between the offences does not make it unjust to activate a suspended sentence: see Li Kim Wai v R[1980] HKLR 833, where the Court of Appeal said at §834:-

“The single judge gave leave to appeal because he took the view that the District Judge had been wrong not to activate the suspended sentence. The reason given by the judge for not so doing was that the previous conviction was dissimilar, the offence on that occasion being taking a conveyance without authority. We think the single judge was right. Section 109C of the Criminal Procedure Ordinance requires that the court shall make an order activating the sentence unless it would be unjust to do so and mere dissimilarity between the offences does not make it unjust. We think it is important that suspended sentences should be activated where the law so requires, otherwise suspended sentences lose all their effectiveness. The whole purpose behind the suspended sentence is that a defendant shall know that if he commits a further offence he will go to prison on an activated sentence, save in exceptional circumstances, and those exceptional circumstances will rarely occur.”

28.  In R v Ho Miu Yuk and another (unrep., CACC 2/1989, 11 January 1990)  at §14, the Court of Appeal held that:-

“When a judge considers what course he should take when an offence had been committed during the currency of a suspended sentence he is in duty bound to bear in mind the provisions of section 109C of the Criminal Procedure Ordinance. The sentencing Court is required to activate the suspended sentence with the term unaltered unless that Court forms the opinion that it would be unjust to do so - unjust to do so that is in view of all of the circumstances which have arisen since the suspended sentence was passed including the facts of the subsequent offence. If the Court does form the view that it would be unjust then it must give reasons as to why it does not activate or activates only partially.”

29.  In Secretary for Justice v Chan Ka Wah [2008] 4 HKLRD 904 at §27, the Court of Appeal held that:-

“If a defendant commits a fresh offence during the period of suspension, he will be sentenced for the fresh offence, and the suspended sentence, in the absence of any exceptional circumstance, will be activated and be served consecutively to the sentence for the fresh offence, otherwise the suspended sentence will lose its meaning and effect. The length of the sentence for the fresh offence is not an exceptional circumstance.”

30.  The above principles laid down in Ho Miu Yuk and Chan Ka Wah were affirmed by the Court of Appeal in the recent judgment of HKSAR v Cheung Cho Ming (張祖鳴)  [2026] HKCA 1010. The Court of Appeal quashed the trial judge’s order and held that there were no exceptional circumstances to allow any discretion to discount the suspended sentence, either by activating it with a reduced term or making any part of it run concurrently. The lengthy nature of the sentence for the fresh offence does not constitute an exceptional circumstance per se.

31.  In conclusion, I have come to the view that it is not unjust to activate the suspended sentence. There are no exceptional circumstances in the present case to not activate the suspended sentence. I therefore order that the suspended sentence of 4 weeks’ imprisonment should be activated, to run consecutively to the sentence of 9 years 8 months’ imprisonment for the present offence, making an overall sentence of 9 years 9 months’ imprisonment. I am satisfied that the total sentence is fair, just and balanced.

ORDER

32.  The Defendant is therefore sentenced to a total of 9 years 9 months’ imprisonment.