HKSAR v. CHAN CHUN KIT

HCCC 65/2025

[2025] HKCFI 3532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 65 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of attempting to traffic in a dangerous drug[1]  before Magistrate Ms. Minnie Wat and was committed, on 20 February 2025, to the Court of First Instance for sentence. He confirmed his plea and admission to the Summary of Facts before me, and the conviction was duly recorded.

2.  Particulars of the charge are that the defendant, on 23 December, 2022, on the 7th Floor, Lead On Industrial Building, No.18 Ng Fong Street, San Po Kong, Kowloon, attempted to unlawfully traffic in a dangerous drug, namely 298.94 kilogrammes of cannabis in herbal form.

FACTS

3.  On 9 December 2022, an inbound seaborne consolidated consignment comprising two pallets of 40 carton boxes containing allegedly ceiling tiles arrived at Kwai Chung Cargo Examination Compound.  Upon examination, a total of 720 packets containing 298.94 kg of cannabis (in herbal form) were found inside the said carton boxes.

4.  All the cannabis were replaced with dummy materials by Customs officers for the purpose of a controlled delivery.  The consignment was then stored at a warehouse designated by the shipper, Vanguard.

5.  The first controlled delivery took place on 14 December 2022.  A local logistics company (“Flying Dragon”) collected the consignment from Vanguard and delivered it to a car park in Yuen Long.

6.  The consignee as stated on the waybill, a Kwok Wai-kwan (“Kwok”), did not show up.  The consignment was brought back to a warehouse of Flying Dragon, pending further instructions from the consignee.

7.  On 22 December 2022, Flying Dragon informed Customs officers that someone had requested them to deliver the consignment to “Room 707, 7/F, Lead On Industrial Building, 18 Ng Fong Street, San Po Kong”, and to contact “6651 5973” before delivery.

8.  At around 9:29 am the following day, a Customs officer called the said number, pretending to be a Flying Dragon courier.  A man holding out as Kwok requested that the consignment be delivered at around 2 pm on that day.

9.  The consignment was in fact delivered to the lift lobby on the 7^th floor of Lead On Industrial Building at around 2pm.  The defendant showed up and claimed to be Kwok.  He paid the delivery fee and acknowledged receipt of the consignment.

10.  The defendant then left the lift lobby together with the Customs officer who made the delivery, leaving the consignment at the lift lobby, without telling the officer to move it into or nearer Room 707.

11.  About an hour later, the defendant, now changed into a different outfit, reappeared in the lift lobby on the 7^th floor.  He unwrapped the consignment and pushed all the carton boxes away from the lift lobby to a common area nearer to Room 703.

12.  The defendant was later arrested in San Po Kong.  Under caution, he admitted to collecting the consignment on behalf of another person, whom he claimed not to have the contact details of.  He said he did not know what was inside the consignment.  He was to receive a few thousand dollars as a reward.  The defendant said he planned to move the consignment to Room 703 later.

13.  Investigation revealed that the defendant had no connection with Room 707, but he did rent Room 703 on 21 December 2022.

14.  By his admission to the Summary of Facts, the defendant had accepted that he had attempted to unlawfully traffic in the 298.94 kilogrammes of cannabis in herbal form.

PREVIOUS CONVICTIONS

15.  The defendant has 8 convictions from 7 court appearances.  Two of the convictions were for trafficking in dangerous drugs, when he was sentenced to 3 years 4 months and 3 months’ imprisonment in 2009 and July 2021, respectively.  His last two convictions were for possession of dangerous drugs and conspiracy to launder money, when he was sentenced to 6 and 2 months’ imprisonment, respectively in May and December of 2023.

BACKGROUND AND MITIGATION

16.  The defendant was born in November 1990 and is 34 years old.  He is married but his wife left him because of his psychiatric problems.  The defendant is an only child.  His parents divorced when he was young and it was his paternal grandmother who brought him up.  She passed away in 2018.

17.  After the defendant had completed his Form 4 education, he left school and had worked as a delivery worker, renovation worker and eventually an air-conditioner technician, which was his job at the time of his arrest, earning around $800 to $1,000 per day depending on job availability.

18.  In 2011, the defendant was shot by a police officer when he committed the offences of wounding or inflicting grievous bodily harm and assaulting a police officer under the Offences Against the Person Ordinance, Cap.212, and was hospitalized for a few months.

19.  The defendant had since recovered but the bullet was left inside his body because it was the doctor’s decision that it was safer to leave it there than to operate on the defendant to try to remove it.  As a result, the defendant would suffer abdominal pain from time to time to the extent that it would affect his work.  

20.  Ms. Cindy Lee, counsel for the defendant, informed the court that the defendant committed the present offence because one of his cats had fallen sick in around December 2022 and the defendant had spent a substantial sum on veterinary treatment and consultation.

21.  When the defendant told his friend, whom he got to know through his previous dealings with cannabis in 2021, about his situation, that friend told the defendant that he could earn $3,000 if he could rent a warehouse to receive and hold some goods.  The defendant agreed to do so, which resulted in his commission of the present offence.  

22.  The defendant is regretful of what he had done.  He realizes that he might not be able to see his father again given the length of his sentence and the state of his father’s heart condition.  He is also very worried about his cats.

23.  The defendant and his father wrote in mitigation.  The defendant talks about how his grandmother’s passing away had greatly impacted him, causing him to require medication for his depression.  He also referred to his injuries mentioned above and says that he committed the offence because of his financial situation. He is grateful that his father, who lives in Macau, had visited him regularly since his remand.

24.  The defendant’s retired father tells the court how he has seen changes in the defendant, and that he is basically a good natured person with a kind and loving heart, and it has been his mental and character issues that had caused a lot of problems.  The defendant’s father has been suffering from heart disease since 2011 and requires regular follow-up treatment.  He pleads for leniency for the defendant so that he can be back with his cats and be by his side soon.  

25.  According to the defendant’s psychiatric report dated 25 March 2025, the defendant was first known to East Kowloon Psychiatric Centre in August 2011.  He was observed to have had poor impulse control and polysubstance use since he was a teenager.

26.  He had received care since February 2018 for irritability and aggressive gesture at home.  Dr. Ng, who prepared the report, became the defendant’s Case Medical Officer in June 2023 when the defendant had started to be remanded.  He found the defendant stable and did not observe any psychotic symptoms.  As at the date of the report, the defendant was calm with satisfactory self-care.  His speech was coherent and relevant, and mood was neutral without any psychotic features.  Medications were prescribed and his next follow-up session was on 3June 2025.

27.  In summary, Dr. Ng confirmed that the defendant suffered from Dissocial Personality Disorder with a history of polysubstance abuse.

SENTENCING

28.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is life imprisonment and a $5 million fine, which is also the maximum sentence for an attempt to commit the offence.  The only reason why the defendant was charged with the inchoate offence is because the actual drugs had been substituted out.  His sentence should, therefore, be the same as if he had trafficked in the actual drugs.

29.  The sentencing approach laid down in Herry Jane Yusuph[2], as read in conjunction with HKSAR v Lee Ming Ho[3], [2024] 1 HKLRD 1186, together with the sentencing guidelines for trafficking in herbal cannabis in Attorney General v Tuen Shui Ming[4].

Step 1: The applicable guideline tariff bands

30.  For attempting to traffic 298.94kg of herbal cannabis, the applicable guideline tariff band is “Over 9kg – 4 years or upwards”.

Step 2: The defendant’s role and culpability

31.  On the basis of the facts admitted to by the defendant, he was the person tasked to receive the consignment of dangerous drugs, and to move them into Room 703, which was rented by him.  The defendant was doing that for a few thousand dollars’ reward.

32.  One reasonable inference is that once he had done that, he would be paid and that would be the end of his job.  There is not sufficient evidence to allow this court to infer that he would be engaged in either re-packaging or direct trafficking of the drugs.  As such, he is to be sentenced as a courier and storekeeper of the drugs.

33.  Since the drugs were shipped into Hong Kong, there is a possibility that the defendant may be more culpable as a result of an international element being present.  It was stated in Lee Ming Ho[5] that if the defendant had facilitated the importing of the dangerous drugs into the jurisdiction, the presence of this international element should be taken into consideration when assessing the defendant’s role and culpability.  

34.  Here the 40 carton boxes were shipped from Canada.  The consignee “notify party” was stated as a Shenzhen-based company called Shinning Ocean International Logistics Co. Ltd., and the consignee was named as ‘Kwok Wai-kwan’.

35.  The facts stated that Flying Dragon informed the Customs Department that “someone” had requested them to deliver the consignment to “Room 707”, and leaving the number of “6651 5973”.  There is no evidence to suggest that it was the defendant who made that call to Flying Dragon, nor evidence to suggest that it was the defendant who answered the phone when the Customs officer called that number before making the delivery.

36.  The defendant was the person who showed up, claimed he was Kwok, which is not true, paid the fees, and then came back to unwrap the consignment and pushed the carton boxes near Room 703, which he rented.  

37.  It is most likely that Kwok is a fake name and no one of that name actually existed, just as Room 707 was never meant to be the intended storage place of the carton boxes.

38.  There is insufficient evidence to prove that the defendant had played a part in the arrangement for the importation of the drugs into Hong Kong.  On the contrary, given the huge amount of drugs involved, it is more likely that those behind the scene would have compartmentalized the different stages of transportation, and there would not have been any need for the defendant to be involved in the drugs’ importation matters.  

39.  That being the case, I will not enhance the starting point despite the fact that the drugs had been imported into Hong Kong from overseas.  

Step 3: The relevant band within the guidelines

40.  The quantity of the drugs the defendant had attempted to traffic is about 3.3 times more than 90kg, being the base figure of the top tariff band in Nguyen Thang Loi, the later guidelines subsequent to Tuen Shui Ming.

41.  In the case of HKSAR v Tsang Man-hoi, William HCCC 41/2022, the two defendants imported into Hong Kong by way of a shipment from Canada a total of about 503kg of herbal cannabis.  The applicable guidelines were those in Tuen Shui Ming where, for trafficking in 9kg or above, the tariff band was “4 years upwards”.

42.  The learned trial judge’s attention was drawn to four cases where very large amount of herbal cannabis was trafficked.  In one case, for 792.11kg, a starting point of 30 years was adopted[6]. In the other, for 388.674kg, a starting point of 20 years was adopted after trial[7].

43.  Neither of those cases had applied the Tuen Shui Ming guidelines.  The applicable guidelines were those in Attorney General v Chan Chi Man [1987] HKLR 221; CAAR 19/1986.  Although the bands at the lower end were revised, for trafficking over 9kg of cannabis resin, the Chan Chi Man top sentencing range was still 4 years upwards, which Tuen Shui Ming had deliberately left undisturbed.  

44.  In the other two cases, the Tuen Shui Ming guidelines were applied.  For about 145kg, a 10 years starting point was adopted[8]  in one, while a starting point of 9 years was adopted in the other case for about 109kg of herbal cannabis[9].  

45.  The judge considered the later cases not helpful because they were of much lower quantity, while accepting that they also relied on the Tuen Shui Ming guidelines.  The judge did, however, find assistance in the earlier two cases, despite the fact that they applied the Chan Chi Man guidelines, because of the quantity involved.  A starting point of 22 years was adopted based on the 503kg of drugs, which was increased by 1 year for the defendant who had played a more significant role and was found to be much higher up in the chain of the hierarchy, as the importer of the drugs, controller and operator of the operation.

46.  Looking at the 3 sets of guidelines, one sees that the Court in Nguyen Thang Loi had kept the “over 9kg” band demarcation, and proceeded to cater for higher quantities from 15kg onwards, and up to 90kg.  The Court specifically stated that the Tuen Shui Ming guidelines were revised to “address trafficking cases so as to reflect the similar levels of THC in both herbal cannabis and cannabis resin and to deal with larger quantities”.

47.  In relation to the top tariff bands, it was more an extension than a revision of the Tuen Shui Ming guidelines.  Similarly, the top band of the Chan Chi Man guidelines were left undisturbed when they were revised in Tuen Shui Ming.  

48.  With that evolution of the guidelines in mind, I find that the sentences imposed in the above cases involving an amount of drugs beyond the top tariff band’s base figure, whether under Chan Chi Man or Tuen Shui Ming, are still important and useful as references to allow the court to continue to maintain consistency in sentencing for very large quantity of herbal cannabis under the Nguyen Thang Loi guidelines.  

49.  Upon my original sentencing, Ms. Lee reminded this court that the present case had taken place before the case of Nguyen Thang Loi and so the applicable guidelines should be those in Tuen Shui Ming.

50.  Despite my finding on the evolution of the guidelines, I find that the two Court of First Instance cases of HKSAR v Li Gwing Chiu HCCC 58/2024 (238.64kg) and HKSAR v Chan Chun Kit HCCC 174/2024 (around 274kg) referred to me by Ms. Lee, which I had not considered previously, would suggest that a proper starting point should be 14 years 9 months’ imprisonment, given the defendant’s role and culpability.

51.  This is the revised starting point that I will now adopt.

Step 4: Aggravating factors

52.  This is the defendant’s third trafficking in dangerous drugs conviction, and his nineth conviction in total.  For his being a repeat and habitual offender, I will enhance his sentence by 12 months’ imprisonment.

Step 5: Mitigating factors

53.  There are no mitigating factors apart from the defendant’s timely plea of guilty, for which he is granted a one-third discount, resulting in a sentence of 10 years 6 months.

54.  I note the psychiatric report of the defendant and find that there is nothing to suggest that he had committed the offence as a result of any psychiatric illness, and it would appear that Ms. Lee is not putting forward this ground of mitigation.

55.  Be that as it may, out of prudence, I will just point out that in trafficking in dangerous drugs cases as serious as the present one, the defendant’s personal circumstances becomes irrelevant as a mitigating factor[10].

Step 6: Totality

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

FINAL SENTENCE

57.  The defendant is, therefore, sentenced to 10 years 6 months’ imprisonment after plea.