HKSAR v. CHAN CHI SHING AND ANOTHER

DCCC 1321/2024

[2025] HKDC 1926

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1321 OF 2024

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REASONS FOR SENTENCE

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1.  D1 and D2 are both convicted on their own plea and agreement to Summary of Facts to a charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (i.e. Charge 1 and Charge 2 respectively).

Facts

2.  On 23 June 2024, uniformed police officers were on patrol and they saw a private car bearing registration mark YN5894.  D1 was the driver of the car and D2 was seated in the front passenger seat.  As D1 was acting suspiciously, the car was intercepted for enquiry.

3.  D1 was searched and (i) one transparent resealable plastic bag containing 4 transparent resealable plastic bags containing a total of 0.94 grammes of a solid containing 0.65 grammes of cocaine (“Exhibit 1”) and (ii) one transparent resealable plastic bag containing 7 transparent resealable plastic bags containing 3.86 grammes of a solid containing 3.15 grammes of ketamine (“Exhibit 2”) were found inside D1’s underwear.

4.  D1 was arrested for “trafficking in dangerous drugs”.  Under caution, D1 admitted that someone offered him HK$1,000 to deliver the “Coke” and “K Jai” to Chungking Mansion.

5.  When police were about to search D2, D2 told police that she had something inside her top.  D2 reached her right hand under her top and took out (i) one transparent resealable plastic bag containing 20 transparent resealable plastic bags containing a total of 4.71 grammes of a solid containing 3.29 grammes of cocaine (“Exhibit 3”) and (ii) one transparent resealable plastic bag containing 20 transparent resealable plastic bags containing 11.2 grammes of a solid containing 9.25 grammes of ketamine (“Exhibit 4”).  These exhibits were seized.

6.  D2 was arrested for “trafficking in dangerous drugs”.  Under caution, she admitted that someone offered her HK$2,000 to deliver the “K Jai” and “Coke” to Chungking Mansion.

7.  Later, the car was searched and one cigarette box containing 10 transparent resealable plastic bags containing a total of 2.25 grammes of a solid containing 1.53 grammes of cocaine (“Exhibit 5”) was found in the glove compartment in front of the front passenger seat. 

8.  Under caution, D1 admitted that the “Coke” inside the glove compartment was to be delivered to Chungking Mansion, and under caution, D2 stated she had no knowledge of the item inside the cigarette box.

9.  The Government Chemist confirmed the narcotic contents of Exhibits 1-5.

10.  The estimated street value of the drugs found on D1 was around HK$2,835 and that of the drugs found inside the car was around HK$2,351. The estimated street value of the drugs found on D2 was around HK$10,297.

11.  D1 and D2 are husband and wife.  The car was rented out to D1 since 26 May 2024 at HK$1,800 a week.

12.  In the video-recorded interview conducted with D2.  Under caution, she said that she had drug habit for many years and she would consume cocaine.

Criminal record

13.  D1 has 6 criminal records involving convictions of 9 charges, of which one is similar.  He was convicted of similar offences in 2010 and sentenced to 3 years’ imprisonment.  He was last discharged from prison on 13 October 2011. 

14.  D2 has one similar conviction in 2017, for which she was sentenced to 46 months’ imprisonment.  She was last discharged from prison on 24 October 2019.

Mitigation for D1

15.  D1 is aged 40.  He is married with two children and D2 is his wife.  They live in a public housing estate.  D1 was educated up to Form 3.  He joined the labour force since then and had picked up different jobs in different industries.  His last job was working at a grocery store. 

16.  Unfortunately, on one occasion, D1 hurt his spine in the course of delivering goods.  As a result, he had to stay at home for recovery.  He began to indulge in online games and online gambling, and he lost several hundred thousand dollars.  He could not repay the debts and the debt collectors kept knocking on the door of D1’s residence for repayment.  They also threatened to kill D1’s family members and splashed red paints on the door of his residence.  The case was reported to the police.  This has caused D1 increasing fear day after day as he was unable to clear up his outstanding gambling debts.

17.  Under the pressure of debts and disturbances from the debt collectors, D1 sought help from his friends and his friend introduced D1 to contact a drug dealer who offered him a reward of $1,000 each time if D1 could deliver the drugs to a designated place as instructed.  D1 succumbed to this proposal and therefore committed the present offences. 

18.  D1 was cooperative with the police during investigation. 

19.  Defence counsel submitted that as both D1 and D2 have been remanded since 23 June 2024, the public housing estate had been recovered by the Housing Authority due to non-payment of rental and the two children currently were looked after by relatives.

20.  D1 said that he has now learned a bitter lesson and is determined to start afresh, and he missed his children who are homeless at the moment.  He promised to be a responsible father and would not reoffend on his release, and hope he could be discharged as soon as possible. 

21.  It was said that D1 was not the mastermind, he simply acted upon instructions and he played a relatively minor role in the trafficking offence.

22.  Defence counsel referred this court to the case of HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138 which laid down the sentencing tariff for trafficking in cocaine as well as the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1 which laid down the sentencing tariff for trafficking in ketamine. 

23.  He also referred this court to the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, in which the six-step approach for sentencing trafficking in dangerous drugs is set out.  He submitted that D1 is a storekeeper or courier acting upon instructions of another person.  He suggested that the sentencing starting point for D1 shall be within 3 years to 3 years and 7 months’ imprisonment.  He also asked for a sentencing discount for D1 by reason of his timely guilty plea. 

24.  He submitted to this court a mitigation letter from D1.  D1 in his letter informed this court that he is deeply remorseful as to what he has done.  He said that since his last similar convictions, he had already started afresh and had a law-abiding life until he was injured at work. As a result, he had to rely on compensation for a living.  Later, he gambled uncontrollably and was into heavy debt.  He succumbed to temptation and reoffend the offence.  He asked for leniency from this court so that he could take care of his parents and two young children. He has now lost the public housing estate unit as both himself and his wife have been incarcerated in this case.

Mitigation for D2

25.  D2 is aged 25, married, and the mother of two children aged 9 and 3.  Both children are presently cared for by their grandparents due to her remand.  She left school after Form 2 and she fell into bad company at an early age.

26.  At the age of 16, she gave birth to her first child with a boyfriend who was 5 years older, and after giving birth the boyfriend vanished.  In same year, she was convicted of drug trafficking for which she was sentenced to 5 years and 9 months’ imprisonment.

27.  Since her release in 2019, she had sought to rebuild her life.  She worked as a cook in a restaurant for almost three years until 2022, when she lost her job due to pregnancy. 

28.  In 2021, she married D1, who later developed a gambling habit and suffered a work injury that significantly reduced his income.  The family’s consistent financial hardship, coupled with the need to care for two children and elderly parents, placed immense emotional and financial strain upon D2.  She borrowed money from others to keep her family afloat, but she had to petition for bankruptcy in 2022.  Facing the debts and the fear of creditors, she made the wrong choice of carrying the drugs for another.  She has since come to recognise how misguided her decision was and she is now deeply remorseful.

29.  Defence counsel said that based on the proportion of drugs in this case, the sentence under the ratio test would be 53.2 months’ imprisonment. 

30.  Defence counsel also submitted that D2 had pleaded guilty at the first opportunity and therefore she is entitled to a full one-third sentencing discount.

31.  She handed to this court mitigation letters from D2 and her mother which conveyed genuine remorse and self-reflection on the part of the defendant.  In the letter, D2 does not dispute the seriousness of the offence and that she fully understands that drug trafficking undermines the well‑being of the society.  She acknowledges her wrongdoing and regrets deeply that she allowed hardship to lead her into breaching the law again.  She deeply regrets the harm caused to her family, particularly the loss of time with her daughters. 

32.  Defence counsel also lodged with the court a letter written by the prison chaplain from the Christian Prison Pastoral Association asking for leniency in sentencing.  It is said that during remand, D2 has shown genuine remorse, accepted responsibility and expressed a sincere wish to change.  The chaplain and church pledge continued support for her rehabilitation and ask the court to give her a second chance to rebuild her life. 

33.  Defence counsel submitted that D2’s role was merely that of a courier and that the sum she received was modest and indicative of minimal participation.  It was also said that D2’s two children are of tender age and they are currently looked after by their elderly grandparents with health issues.  Prolonged separation from parents would cause emotional and developmental hardship to the children. 

34.  It is said that D2 would not reoffend and she begs this court to give her an opportunity to rehabilitate.

Discussion

35.  Before sentencing, the court has carefully considered all that was advanced on behalf of the defendants, including the mitigation letters and the certificates. 

36.  On conviction upon indictment of this charge, the maximum sentence is a fine of HK$5 million and imprisonment for life. 

37.  Trafficking in dangerous drugs is a very serious offence.  In usual circumstances, personal background of the defendant is seldom a valid mitigating factor.  Likewise, committing the offence by reason of financial difficulty or for financial reward is not a valid mitigating factor.

38.  Although both defendants had similar convictions in the past, this court on this occasion is not going to enhance the sentencing starting point.

D1

39.  In D1’s case, the drugs involved is 2.18 grammes of cocaine and 3.15 grammes of ketamine, totalling 5.33 grammes.  The court considers most appropriate to adopt the ratio test in deciding the sentencing starting point. 

40.  Cocaine represents 41% of the total drugs in question while ketamine represents 59% of the total drugs.  Had all the drugs trafficked been cocaine, following the case of Huang Ruifang, the sentencing starting point would be 43.18 months’ imprisonment.  Had all the drugs trafficked been ketamine, following the guideline in Hii Siew Cheng, the sentencing starting point would be 35.54 months’ imprisonment. 

41.  Applying the ratio test, the sentencing starting point would be 38.6 months’ imprisonment. 

42.  It is well established that whilst there are more than one type of drugs involved, the same constitutes an aggravating feature in sentencing.  In this case, the court will enhance the sentencing starting point by 3 months, taking the sentencing starting point of D1 to 41.6 months’ imprisonment.

43.  D1 has pleaded guilty, which is the most valid mitigating factor.  He is entitled to full one-third sentencing discount. 

44.  As said earlier, the commission of the offence by reason of financial difficulty is not a valid mitigating factor.  The role of D1 is a mere courier.  D1 is sentenced to 27.7 months’ imprisonment.

45.  However, considering the family circumstances of D1, on humanitarian grounds, in particular the two young children at stake, this court is minded to further discount the sentence of D1 by 1.7 months’ imprisonment.  D1 is therefore sentenced to 26 months’ imprisonment.

D2

46.  In D2’s case, the drugs involved is 3.29 grammes of cocaine and 9.25 grammes of ketamine, totalling 12.54 grammes.  The court will adopt the ratio test in deciding the sentencing starting point.

47.  Cocaine represents 26.2% of the total drugs in question while ketamine represents 73.8% of the total drugs.  Had all the drugs trafficked been cocaine, the sentencing starting point would be 62.28 months’ imprisonment.  Had all the drugs trafficked been ketamine, the sentencing starting point would be 49.52 months’ imprisonment.

48.  Applying the ratio test, the sentencing starting point for D2 would be 52.8 months’ imprisonment. 

49.  The sentencing starting point is enhanced by 3 months by reason that two types of drugs are involved in the trafficking charge, and therefore the sentencing starting point would be 55.8 months’ imprisonment.

50.  D2 has pleaded guilty, which is the most valid mitigating factor.  She is entitled to full one-third sentencing discount.

51.  As said earlier, the commission of the offence by reason of financial difficulty is not a valid mitigating factor.  The role of D2 is a mere courier. D2 is sentenced to 37.2 months’ imprisonment.

52.  Considering the family circumstances of D2, as in the case of D1, on humanitarian grounds, the court is minded to further discount the sentence of D2 by 1.7 months’ imprisonment.  D2 is therefore sentenced to 35 months and 15 days’ imprisonment.