HKSAR v. YU ALEX LAP KEI

HCCC 201/2025

[2025] HKCFI 5715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 201 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before Magistrate Ms. Minnie Wat to one count of trafficking in a dangerous drug[1] and was committed, on 9 June 2025, to the Court of First Instance for sentence. Upon his confirmation of his plea and admission to the Summary of Facts, the conviction was duly recorded.

2.  Particulars of the charge are that the defendant on the 17 August, 2023, in the vicinity of lamp post No. GD0519, Lau Fau Shan, Yuen Long, New Territories, together with other persons, attempted to unlawfully traffic in a dangerous drug, namely 98.723kg of cannabis in herbal form.

FACTS

3.  10 carton boxes of purported chickpeas were shipped from Toronto to Hong Kong.  Upon search and examination, a total of about 120kg of cannabis buds were found, with each carton box containing 20 sets of bags, each of which had about 600g of cannabis buds inside.  

4.  The dangerous drugs were replaced with dummies, and all the boxes in the consignment were delivered to a warehouse in Yuen Long to await collection.  

5.  The defendant arrived at the office of the cargo releasing agent, Herport HK Limited, at about 3:42pm on 17 August 2023 and requested to handle the logistics for the consignment.  He presented the company stamp and a Business Registration Certificate in the name of the consignee company, a “Jahao Trade Ltd”, and settled the payment for the collection of the consignment.  He was given the original delivery order and the invoice issued to Jahao.

6.  The defendant then got into a private vehicle VK 935, driven by its owner a Mr. Leung Yuen Kwan.  They arrived at the warehouse in Yuen Long at about 4:30pm.  

7.  The defendant got off and presented the delivery order to collect the boxes.  A Customs Officer in disguise handed over the 10 carton boxes, which were then loaded onto a truck.  The defendant got into the truck and left the warehouse.  When the truck got to the exit of the warehouse, the defendant got out of it and went back into the private vehicle he came in.  The truck and the vehicle left together.  

8.  At about 5:22pm, the truck stopped at a layby in Lau Fau Shan and the defendant was seen lingering around it.  The boxes were eventually unloaded near lamp post no.GD0519 in Lau Fau Shan by the driver, who left afterwards.

9.  The private vehicle parked next to the unloaded boxes at around 5:29pm.  The driver got out and lingered around the consignment with the defendant.  They eventually removed the plastic wrappings and the defendant opened one of the boxes and looked inside, while the driver watched.  

10.  They returned to the vehicle at 5:33pm and the driver moved the vehicle a few meters away from the consignment.

11.  The controlled delivery turned overt at 5:50pm and the defendant and the driver were both arrested.  Under caution, the defendant gave some innocuous explanations as to why he was at the place and what the consignment was.  He claimed to be there fishing and that the consignment was nuts, belonging to his boss.  He found the things inside abnormal and so he went back to the vehicle to wait for his boss’s instruction.  He claimed that he was not being paid for the collection, and that he did not know the driver.  When asked, he declined to assist the Customs officers to conduct a controlled delivery of the consignment.  

12.  In the subsequent video recorded interview, the defendant claimed, among other things, that he addressed the driver as “Boss Leung梁總”.  The defendant only has his phone number and knew nothing about this boss Leung.  It was BL who gave the defendant the company stamp and BRC.  That was the first time he had met BL, although they did have previous communications.  He had known BL for about 6 months.  It was BL who told the defendant to collect the boxes and to tell the truck to go to Lau Fau Shan.  The defendant claimed that, as far as he knew, the boxes contained nuts.  Once the boxes were unloaded at Lau Fau Shan and the truck had left, BL planned to move them into his own vehicle and transport them to a warehouse that BL had arranged.  

13.  The defendant said that BL felt suspicious about the cartons and so he opened one of them to look.  BL saw that the goods inside did not belong to them “as they were going to collect nuts”.  Since the goods were problematic, the defendant claimed that he was going to report to the police about the matter.  

14.  The defendant claimed that his boss was a Boss Chiu 趙總, whom he had also known for 6 months.  The defendant does not have any traceable information of Boss Chiu, who is the owner of Jahao Trade Limited, the consignee company.  The defendant communicated with Boss Chiu via WeChat and Telegram.  He knew BL and Boss Chiu were friends.  The defendant was provided with phone number 9854 3321 by Boss Chiu’s company.  

15.  Dashcam footages from BL’s private vehicle captured the movement of BL, an unknown male, and the defendant between 4:45pm on 16 August and 5:29pm on 17 August 2023, showing the time when the defendant joined BL in the vehicle, when the defendant took the stamp and left for the cargo releasing agent’s office.  They show the defendant coming back to the vehicle, and later on making the collection at the warehouse, and subsequently the vehicle arriving at the place of the offence and the defendant got out before the vehicle was driven away, and lastly at 5:29pm, the defendant and BL stood next to the 10 carton boxes.  

16.  Upon his admission to the Summary of Facts, the defendant had accepted and admitted that he attempted to possess all the dangerous drugs in the consignment for the purpose of unlawful trafficking at all material times.  

PREVIOUS CONVICTIONS

17.  The defendant was of previously clear record in Hong Kong.  

BACKGROUND AND MITIGATION

18.  The defendant was born in Canada in April 1992 and is 33 years old.  He returned to Hong Kong in 1994 and received his education here until he was 10 years old when he returned to Canada to continue with his studies.  He obtained a diploma in Engineering (Architectural Studies)  in 2010 and worked as a salesperson for telecommunication devices from 2010 to 2015.  

19.  The defendant’s parents divorced in 2012 and they returned to Hong Kong separately.  The defendant came back with his mother in 2015, who was later diagnosed with cancer and has been receiving treatment, with the defendant accompanying her on every hospital visit.  

20.  Upon the defendant’s return, he had worked as an immigration consultant, a project worker at his uncle’s construction sites, and at poultry farms in the mainland. During his leisure time, the defendant would volunteer to visit and deliver food to the elderlies in the Lantau Island district, even during the pandemic.  

21.  When the defendant was working in the mainland, he came to know a person called Chiu.  Chiu asked the defendant to receive his mail in Hong Kong since the defendant travelled regularly between the two places.  The defendant was paid $10,000 a month for these errands.  

22.  In August 2023, Chiu asked the defendant if he would help him to get some parcels in Hong Kong, which contained cannabis, for a reward of $200,000.  Thinking that the money could get his mother better medical treatment, the defendant succumbed to the temptation and agreed.  Chiu told the defendant that a Mr. Leung (Boss Leung)  would liaise with him.  What happened between the defendant and Boss Leung is as set out in the Summary of Facts.

23.  The defendant and his mother wrote in mitigation, the son showing his remorse, reflection and determination to get back on to the right path, the mother seeking leniency for her helpful and good son.

24.  The defendant’s uncle, Mr. Ng, and District Councillor Mr. Yu also wrote.  They both praise the defendant as a very helpful person and a filial son.

SENTENCING

25.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is life imprisonment and a $5 million fine.  

26.  The sentencing approach laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 are applied as follows.

Step 1: The applicable guideline tariff bands

27.  For 98,723g of herbal cannabis, the applicable guideline tariff bands laid down in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 is “10 years upward”.

Step 2: The defendant’s role and culpability

28.  The defendant aided and abetted the collection of the boxes that he knew contained drugs and were sent from overseas.  There is, however, no evidence that he had directly facilitated in the importation of the drugs.  His conduct was that of a courier. There is also no evidence that he would be a direct trafficker of the drugs.  

29.  According to the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186, the presence of an international element in the trafficking is a matter that goes to the role and culpability of the offender when identifying the starting point rather than as a separate and additional aggravating feature, save in appropriate cases where the court can still exercise its discretion and deal with it as a specific aggravating feature.

30.  In the present case, just as in the case of HKSAR v Ali Qasim CACC 332/2018 referred to by Mr. Chau in his written Skeleton Submission on Mitigation[2], there is an international element in the trafficking, although not as serious as someone who had directly arranged for the importation of the drugs into Hong Kong.  

31.  I find that this international element should be considered as part of the defendant’s role and culpability and a notional starting point higher than the arithmetical application of the tariff should be adopted.

Step 3: The relevant band within the guidelines

32.  For a simple courier with an international element, bearing in mind that for 90kg the starting point would have been just over 10 years, applying the gradation from the previous tariff band, I find that a proper notional starting point should be 10 years 4 months, which is then enhanced for the international element by 8 months, bringing it up to 11 years.  

Step 4: Aggravating factors

33.  Save for the international element which has already been dealt with, there are no further aggravating factors.  

Step 5: Mitigating factors

34.  It is trite law that in cases as serious as the present one, the defendant’s personal circumstances become irrelevant as a mitigating factor.  As such, no reduction in sentence is granted on this basis.  

35.  There are, therefore, no mitigating factors apart from the defendant’s timely plea of guilty.  A one-third discount would lead to a sentence of 88 months.  

Step 6: Totality

36.  Taking a step back, I find this sentence fair, just and balanced in the circumstances.  

FINAL SENTENCE

37.  The defendant is, therefore, sentenced to 7 years 4 months’ imprisonment after plea.