HKSAR v. HO CHEUK MAN, RAY

HCCC 233/2023
HCCC 234/2023
(Heard together)

[2025] HKCFI 3265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 233 AND 234 OF 2023

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant was charged with one charge of trafficking in dangerous drugs, Count 1 in HCCC 233/2023, one charge of manufacturing a dangerous drug, Count 2 in the same case and one charge of possession of a dangerous drug, the charge in HCCC 234/2023.

Before a magistrate, she pleaded guilty to the charge relating to possession of a dangerous drug and pleaded not guilty to the other two charges. Accordingly, she was convicted for sentence for the possession charge and committed for trial for the two other charges. Eventually before me, she pleaded guilty to the trafficking and manufacturing counts as well.

In sentencing, I have considered the whole of the circumstances, including the nature and facts of the case, the type and quantity of drug involved, personal background of the defendant and mitigation put forward on her behalf.

I have also had regard to the sentencing principle and approach as laid down in cases such as HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Li Ming Ho [2024] 1 HKLRD 1186. The present two cases arose from the same incident.

The facts may be summarised as follows:

On 30 March 2021, police officers intercepted the defendant at the staircase of the building in which she was living. Upon search, one plastic bag containing 0.86 grammes of a solid containing 0.52 grammes of cocaine was found on her. This is the subject matter in the case HCCC 234/2023.

She was arrested. Under caution she said the drug was for her own consumption. She also said she was living in a room in the building. The defendant was then brought to the room upstairs, which she said she had been living in. This gave rise to the case HCCC 233/2023.

With the keys seized from the defendant, entry into the room was gained. Officers then conducted a search. Inside the room, 1 kilogramme of a solid containing 862 grammes of cocaine hydrochloride and 69.78 grammes of a solid containing 49.73 grammes of cocaine were found. Phenacetin, which is a Part 1 poison, was also found.

Items such as pots, sieve, induction cooker, hammer, scissors, scales, resealable plastic bags, baking powder were also found. Quite a number of these items contained cocaine.

Under caution, the defendant admitted that she cooked crack cocaine for others to earn $10,000 as living expenses. In a subsequent video-recorded interview the defendant made further confessional statements, including the followings:

(1) She received the drug from different persons and brought the drugs home.

(2) That she concocted the cocaine with the formula she learned on the internet.

(3) After the procedures, she would repack the drug into resealable plastic bags and wait for instruction of further distribution.

(4) She received $10,000 for transacting 1 kilogramme of dangerous drug.

(5) It was the third time she had manufactured dangerous drug. Each time it was 1 kilogramme, and she received $10,000 as reward.

(6) She rented the room.

I was told that the defendant is now 28 years old and she was 24 at the time of the arrest. She attended education up to Form 2. She had worked as a sales assistant and a chef. She was laid off when the restaurant closed down. She had then worked briefly as a private investigation assistant. At the time of arrest, she was unemployed. She did not have any criminal record before.

In mitigation, learned counsel for the defence, Mr Gordon Wong, stressed that the defendant pleaded guilty and is now remorseful. He informed the court that the defendant has been attending Christian services during remand and is positively influenced.

Mr Wong told the court that the defendant had a pitiful childhood. Parents of the defendant divorced when she was 2 years old. She lived with her mother who remarried when she was seven. Her stepfather treated her badly. He subjected her to physical violence and sexual abuse. Eventually the stepfather was sentenced to quite a lengthy imprisonment term for his abusive conduct on the defendant. It led to the divorce of her mother to the stepfather.

Mr Wong also told the court that despite her financial constraint, the defendant did her best to financially support her mother and stepsister. The stepsister suffered ill health, and the mother has to look after her constantly. Family finance was on the shoulder of the defendant.

The defendant wrote a letter in which she expressed remorse. The defence also produced letters written by various family members, medical report of the stepsister and religious certificates of Christian bodies. Family members are of the view that the defendant was of good nature and that her personality would have been affected by the mistreatment of the stepfather. They also said the defendant had worked hard to support the family. Her mother, aunt, sister and grandfather are in court to support the defendant.

In HCCC 233/2023, Count 1 concerned trafficking in 862 grammes of cocaine hydrochloride and 49.73 grammes of cocaine. Count 2 is for the offence of manufacturing dangerous drug and the drug in question was also cocaine.

Having heard counsel and had regard to the observation of the Court of Final Appeal in Seabrook v HKSAR [1999] 2 HKCFAR 184, I am of the view that the tariff set out in the recent case of HKSAR v Huang Ruifang, CACC 106/2022, should be applied. The case is also relevant to sentencing of the manufacturing count.

For Count 1, I see no reason to depart from the tariff. In my judgment, the role of the defendant was low, though not at the bottom of the hierarchy. I did not find any aggravating feature which calls for an enhancement in the sentence. In my view, 17 years and 7 months is the appropriate notional sentence after trial.

Count 2 relates to the offence of manufacturing dangerous drug, which is an offence in most circumstances much more serious than trafficking in dangerous drugs. It has been established in various cases that in sentencing the manufacturing offence, the quantity of drug found is relevant, but this is not the only factor to be taken into consideration.

The court should also consider the scale of the operation, the capacity and productivity of the equipment, the length of time the manufacturing operation had been going on, whether the manufacturing station had been producing, or was likely to produce a substantial quantity of drugs, and the role of the defendant.

In The Queen v Wong Chun Ping, CACC 493/1983, the Court of Appeal remarked that:

“Only exceptional cases for instances, if it is clear that the capacity of the equipment is very small should a court consider a sentence of less than 10 years’ imprisonment on a conviction for manufacturing dangerous drugs.”

In HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, the Court of Appeal remarked that:

“If the drug manufacturing act is a continuous act spanning a period of time, and the drug manufacturing workshop is of considerable scale and productivity involving a large amount of chemicals used for drug manufacturing as well as a not insignificant quantity of high standard drug manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment, even if the quantity of drugs seized on the spot was not substantial.”

In my view, the observations of the Court of Appeal in these cases have to be viewed in the light of the recent decision in HKSAR v Huang Ruifang, as mentioned earlier.

In assessing the scale of the operation, I take into account the circumstances in which the dangerous drug was found, the quantity of the dangerous drug and the paraphernalia found.

I also take into account the submission of Mr Wong, including the followings:

(1) The defendant was recruited to manufacture and was paid according to the quantity she manufactured.

(2) She had not been recruited long before her arrest.

(3) According to her admission, the defendant had manufactured three times in total, 1 kilogramme each time.

(4) She was the only person involved in the operation.

(5) The paraphernalia found was rather primitive.

(6) The operation was a small-scale one.

The actual quantity of the drug seized was slightly more than 900 grammes of cocaine. In my judgment, the operation was not a minimal one, but I do accept the submission of Mr Wong that it was not of industrial scale.

The defendant played a major role in this manufacturing station. What she had done involved manufacturing crack cocaine. The defendant says she had performed manufacturing on previous occasions. However, I also bear in mind the date of offence, as particularised in the indictment, confined to the date the defendant was arrested.

That said, I have to take into account the manufacturing potential of the place, and there is no indication that if the defendant had not been arrested, she would have stopped the operation.

Taking into account the whole of the relevant circumstances, in my judgment, only a notional sentence after trial of 18½ years is sufficient to reflect the culpability of the defendant in this manufacturing operation.

The defendant pleaded guilty before me, only after the case had been fixed for trial. Mr Wong asked me to take into account the defendant had firmly and formally informed the court prior to the CMH hearing of her intent to plead guilty.

Having regard to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, in all the circumstances I am of the view that the defendant is entitled to a 25 percent discount for each count in the circumstances.

For HCCC 234/2023, the defendant pleaded guilty to one charge of possession of dangerous drug which was 0.52 grammes of cocaine. The quantity of cocaine was small, but in the circumstances the latent risk was substantial. Having regard to HKSAR v Mok Cho Tik [2001] 1 HKC 261, I adopt a starting point of 21 months. In this case, as the defendant pleaded guilty at the earliest opportunity, she is entitled to a one-third discount.

Having considered the whole of the circumstances, including what Mr Wong said on behalf of the defendant, in my judgment, the defendant is not entitled to any further discount in either of the two cases.

The defendant is being sentenced for three offences. In my judgment, the drug on the defendant and the drug found in the flat were products of her manufacturing exercise.

Having regard to submission of Mr Wong and cases, including HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Sum Ka Wa [2024] 4 HKLRD 777, taking into account the whole circumstance of this case and the findings I have just mentioned, in my judgment, it is appropriate to order all the sentences run wholly concurrently.

I am also of the view that the overall sentence to be imposed is fair, just and balanced in all the circumstances of the offences and the defendant. So defendant, please stand up.

For the reasons I have said, I impose the following sentences on you:

The case HCCC 233/2023, Count 1, an immediate imprisonment term of 13 years and 2 months. Count 2, an immediate imprisonment term of 13 years and 10 months.

For the charge in HCCC 234/2023, an immediate imprisonment term of 1 year and 2 months.

Further, I order all the above sentences to run concurrently. As a result, you are to serve a total sentence of 13 years and 10 months for the two cases.