HKSAR v. NG KA PO IVY AND ANOTHER

HCCC 191/2024

[2026] HKCFI 2697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 191 OF 2024

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REASONS FOR SENTENCE

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1.  The defendants pleaded guilty to a joint charge of Trafficking in a dangerous drug before Magistrate Mr. Jeffrey Sze and was committed, on 13 June 2024, to the Court of First Instance for sentence. They confirmed their pleas and admission to the Summary of Facts before me, and their convictions were duly recorded.

2.  Particulars of the offence are that the defendants, on 16 January 2023, at Room 1617, 16^th floor, Cordis Hotel, No.555 Shanghai Street, Mong Kok, Kowloon, unlawfully trafficked in a dangerous drug, namely 864 grammes of a crystalline solid containing 851 grammes of methamphetamine hydrochloride (commonly referred to as ‘Ice’).

FACTS

3.  D1 and D2 entered Room 1617 of Cordis Hotel at around 6:05pm on 16 January 2023.  Police officers who were keeping the room under surveillance knocked on the door but there was no answer.  They then tried to open the door with a key provided by the Hotel but was unsuccessful as it was locked from inside.  The officers then resorted to breaking down the door.  Upon entry, they saw the defendants seated at the edge of the bed.  

4.  D1 was taken to the bathroom and searched at around 6:08pm.  One black “Nothing” brand and one silver “Vivo” brand mobile phones were found and seized from her right front trousers pocket.  D2 had a blue iPhone in his left trousers pocket.

5.  Upon search of the hotel room, a safe, which was opened with the passcode provided by D1, was found.  Inside were the following seized items:

1)  1 resealable plastic bag with 851g of Ice

2)  1 digital scale

3)  1 black digital scale

4)  1 pair of tongs

5)  4 disposal medical gloves

6)  One transparent resealable plastic bag containing numerous smaller resealable plastic bags.

6.  A key card to the room and a hotel payment receipt under the name of D1 was also found in the room.

7.  The defendants were arrested for Trafficking in a Dangerous Drug.  D1 claimed under caution that she intended to sell the drugs for a reward of $5,000 while D2 denied knowledge of the drugs.

8.  Government laboratory would later confirm the narcotic contents of the substance seized as 864g of a crystalline solid containing 851g of methamphetamine hydrochloride.

9.  The defendants were taken to their respective homes.  Nothing of evidential value was found or seized.

10.  D1 claimed in her subsequent video recorded interview that after she had talked to a friend about how she wanted to earn some money to take care of her daughter, she received an anonymous call on 8 January 2023 instructing her to pick up a parcel at the delivery lockers in Hung Hom and bring it to Cordis Hotel.  D1 did as told and collected the parcel at around 4pm on 9 January 2023 and then went to rent a room at the hotel on the same day.  

11.  She saw that in the shoebox sized parcel was a coffee bean bag with some Ice inside.  D1 locked the drugs into the safe, the passcode known only to herself, and which she had provided to the police.

12.  D1 claimed that D2 was her boyfriend and they met 2 months ago.  D2 did not reside in the hotel room.  

13.  D2 claimed in his video recorded interview that he checked into Room 1617 together with D1 on 9 January 2023 and started staying there.  He did not have any knowledge of the drugs and had not seen D1 dealing with the drugs.  He did not have the key card to the room, and he had accessed the room with D1 every time.

14.  CCTV footages, however, showed D1 and D2 independently leaving and returning to the room at different times on the day of the arrest, except for the last time when they returned and entered the room together at 6:02pm, shortly before the entry by the police.  

15.  D2’s DNA was found on the safe and D1’s fingerprints were found on the TV cupboard.

16.  The estimated street value of the Ice was $544,320.

17.  Photographs of the safe show the Ice being kept in a resealable plastic bag with the figure “1,000g” written on it.  There was another black plastic bag in the safe with 4 plastic gloves, 2 digital scales, scissors, a pair of pliers and a plastic bag containing numerous smaller resealable plastic bags inside.

18.  By their admission to the summary of facts, the defendants accepted that they had unlawfully trafficked in all the Ice seized from Room 1617 that day.

PREVIOUS CONVICTIONS

19.  D1 was of clear record at the time of the offence.  She had since been convicted of 3 counts of money laundering in November and December 2024, for which she was sentenced to 6 months and 4 weeks’ imprisonment respectively.  D1 committed the present offence whilst on court and police bail for two different cases that she committed earlier on.  

20.  D2 has one conviction for Unlawful Sexual Intercourse with a Girl under the age of 16, and one of Procurement by Threats to do an Unlawful Sexual Act from one court appearance on 19 July 2019.  He was ordered by a District Judge to be detained in the Training Centre for both offences.  D2 committed the present offence whilst under the 3-year Supervision Notice given by the Commissioner of the Correctional Service upon his release from the Training Centre on 23 April 2021.  

D1’S BACKGROUND AND MITIGATION

21.  D1 was born in January 2001 and is 25 at the time of sentencing.  She was 21 at the time of committing the present offence.

22.  Mr. Summly Lee, counsel for D1, gave a very detailed account of D1’s background in his written submissions.  In gist, D1 grew up in challenging circumstances.  Her parents were drug addicts.  Her father died from drug overdose in 2013 when she was 12.  Her mother suffered from schizophrenia and began experiencing auditory hallucinations afterwards, requiring long-term psychiatric treatment.  D1 was then put in the care of her maternal grandparents.

23.  D1 struggled academically and was bullied.  She eventually dropped out of school in Form 3 and started to work various jobs.  

24.  Sometime in 2017, D1 began a relationship with a boy and soon moved in with him and his family.  D1 became pregnant one year later when she was 17, leading to a complete breakdown of her relationship with her own grandparents.

25.  During her pregnancy, D1 frequently argued with the child’s biological father, who refused to work, saying he was too young (under 18).  His family eventually moved back to mainland China to look after some relatives, leaving D1 in Hong Kong to handle all living and prenatal expenses alone.  D1 was forced to borrow money from former employers and friends to survive.  The boyfriend’s family only returned two weeks before the child was born, in December 2018. 

26.  In January 2019, before D1 had completed the postpartum recovery period, the child’s biological father left and returned to mainland China with his family again, and D1 was forced to move out.

27.  Unable to raise the child alone, D1 relied on shared custody with the child’s biological father’s family whenever they would be in Hong Kong.  They claimed that since the child has special educational needs, they could not bear the financial burden on their own.  Between 2019 and 2022, they requested financial assistance from D1, again forcing her to have to borrow money from former employers and friends. 

28.  After separating from the child’s biological father, D1 entered a relationship with another boyfriend.  They resided together in a village house in Yuen Long, each contributing HK$7,000 per month towards rent.  However, due to her young age and lack of academic qualifications, D1 experienced difficulties in securing employment.  Consequently, D1 relied on casual jobs with meagre daily wages to try to make ends meet.  

29.  In 2020, D1 tried to become a full-time trainee pet groomer but her plan was disrupted when the pandemic struck, which led to the closure of the pet grooming shop, leaving D1 suddenly unemployed.  She was compelled to return to casual work to sustain herself.

30.  In 2023, D1’s child was diagnosed with developmental issues including Dyspraxia and ADHD, and had to receive special education.  D1 made up with her grandparents in mid-2024, who forgave her and helped to look after the child.  

31.  D1’s mother passed away in December 2023 from illness while D1 was in remand and she feels deeply guilty for not being able to see her mother for one last time.

32.  The mother of the child’s biological father died from a stroke recently, adding to the difficulties the family already faces in looking after the child.  

33.  Mr. Lee reminded the court of D1’s timely indication of a guilty plea, her clear record at the time of the offence, and her cooperation with the police throughout their investigation, and suggested that her role was a mere courier and storekeeper, without evidence of direct trafficking.

34.  He also pointed out that D1 was 21 and immature at the time of the offence and easily controlled and manipulated by others and committed the offence because of financial pressure.

35.  D1 had developed mental issues during her remand and required the help of psychologist.  She is now receiving psychological treatment 2 to 3 times a month.  She also recently felt some discomfort in her lungs and breasts areas and is being kept under observation.  

D2’S BACKGROUND AND MITIGATION

36.  D2 was born in January 2002 and is 24.  He was 20 at the time of the offence.

37.  Ms. Joyce Wu, counsel for D2, told the court that the defendant was raised in a broken family.  He lost contact with his father when he was 9 and had been living with his mother, sister and brother before his arrest.

38.  D2 left school at secondary 4 due to an arrest for unlawful sexual intercourse with a girl under the age of 16, which resulted in a conviction and detention at a training centre.  After his discharge on 23^rd April 2021, he worked various jobs earning HK$11,000-13,000 per month.  He became unemployed in late 2022 and had since relied on his savings and family support.

39.  Ms. Wu says that D2 met D1 about 2 months before the offence when D2 was 20, and they soon became a couple.  A week before the offence, D1 invited D2 to stay at a hotel where he discovered her involvement in drug trafficking, and not until he had been in the hotel room for a few days.  Out of passion and immaturity, he stayed with her, not realizing the gravity of the situation.  

40.  Ms. Wu submits that D2 did not gain financially from the crime and played a minor role. He did not actively participate in the actual trafficking, handling or distribution of the drugs.  D1 was the person who booked the room and handled the drugs.  D2 did not know the passcode of the safe where the drugs were kept. All that D2 did was to provide moral support to D1.  He has since reflected on his actions, cut ties with D1, and plans to resume studies during incarceration with the goal of a university degree.  He promises to be a law abiding citizen upon release.

SENTENCING CONSIDERATIONS

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

42.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1], as well as the updated guidelines for trafficking in Ice as set out in the case of HKSAR v Huang Ruifang [2025] HKCA 234 are applied.

Step 1: The applicable guideline tariff bands

43.  For 851g of ‘Ice’, the applicable guideline tariff band is that of “18 to 20 years’ imprisonment”.

Step 2: The defendants’ role and culpability

44.  Based on the Summary of Facts, the defendants were couriers and storekeepers of the drugs.  They are to be sentenced as such and the guidelines tariff to be applied accordingly.

45.  As for D2’s supposedly lesser role in the trafficking as submitted by Ms. Wu, my finding is that the moral support and physical presence of D2 during D1’s handling of the dangerous drugs played a significant part in this joint enterprise, thus making D2 equally culpable.  I find, therefore, that there should not be any difference in their sentences.  

Step 3: The relevant band within the guidelines

46.  An arithmetical approach towards the guidelines leads to a notional starting point of 222 months’ imprisonment.  This is the starting point I adopt for both the defendants.

Step 4: Aggravating factors

D1:

47.  D1 committed the present offence whilst she was on police and court bail for a case of trafficking in dangerous drugs and a case of money laundering, respectively[2].

48.  It is trite law that commission of criminal offences whilst on bail is an aggravating factor[3]. Given the lengthy sentence that D1 is already facing but bearing in mind the seriousness of the offence being committed whilst on bail, I will enhance her starting point by 6 months, taking it to 228 months.

D2:

49.  As for D2, his previous convictions are not related to dangerous drugs, and I will not enhance his sentence based on him being a habitual offender.

50.  However, D2 did commit the present offence whilst under a Training Centre Supervision Notice given by the Commissioner of Correctional Services upon his release from the Training Centre, pursuant to section 5 of the Training Centre Ordinance, Cap.280.

51.  It is not disputed that the Supervision Notice included the requirements for D2 to be of good behaviour and keep the peace, and that he shall not commit any offence against the law of Hong Kong.

52.  For the reasons given below, I find that D2’s commission of the present offence whilst under a Supervision Notice is an aggravating factor.

53.  First of all, it must have been obvious to D2 that the reason the supervision notice was given to him upon his release from the Training Centre was so that, should he misbehave and fail to comply with any of the requirements in the coming 3 years, he will be liable to be recalled and be further detained and dealt with.

54.  The supervision notice thus acts as a deterrence, a constant reminder for the supervised person to remember to stay on the right path and not commit further offences.

55.  Yet, D2 chose to ignore the two most important requirements in the notice by way of committing an offence as serious as the present one.

56.  Such conduct indicates clearly the defendant’s disregard for the law.  It is obvious that an enhancement of the sentence is needed to reinforce the deterrent effect the sentence is supposed to have on the defendant, as well as those who might find themselves in a similar situation of being tempted to break the law while under a supervision notice.

57.  Bearing in mind the maximum sentence under s.5(1A)  is 12 months’ imprisonment, and taking into consideration the seriousness of the breach, I find that a proper enhancement is that of 6 months, taking D2’s sentence before plea to 228 months.

58.  Ms. Wu submitted that D2’s breach should be left to the Commissioner to deal with under the regime of the Training Centre Ordinance.  On this, I have the following observations.

59.  Under section 5(1A)  of the Ordinance, a person who fails to comply with any requirement specified in such a notice “shall be guilty of an offence and shall be liable on conviction to a fine at level 2 and to imprisonment for 12 months.”

60.  Under section 5A(1)(b)  of the same Ordinance, “If a person in respect of whom…a supervision notice…is in force is sentenced to imprisonment—…for a term of more than 2 years…, the supervision notice…shall cease to have effect.”

61.  Once the sentence have been imposed, the Supervision notice will cease to have effect immediately and I do not see how the Commissioner will be able to deal with D2 further, such as by way of recalling him to be detained under the original Training Centre order. 

62.  I am mindful that D2 can theoretically still be charged under s.5(1A)  for his breach of the requirements in the Supervision notice after being sentenced in the present case, and there is a possibility that D2 might then be punished twice for the same breach.

63.  Practically, I find that should D2 be so charged, the enhancement of sentence in the present case based on D2’s breach of the requirements in the Supervision Notice will be brought to the attention of the sentencing court, and the totality principle will be applied to ensure that D2 will not be doubly punished for the same breach.

64.  Furthermore and more realistically, the fact that D2’s breach has been taken into account and reflected in the sentence in the present case will be one of the matters that the Department of Justice will take into consideration when deciding whether to prosecute D2 under s.5(1A), and I believe that may result in D2 not being charged.

65.  Either way, I do not think there is any risk of D2 being doubly punished for his breach of the Supervision notice even if it is taken as an aggravating factor to enhance his sentence.

Step 5: Mitigating factors

D1:

66.  I have noted that D1 was of clear record when she committed the present offence, but it is trite law that in an offence as serious as the present one, a defendant’s previously clear record becomes irrelevant in terms of sentencing.  Furthermore, any credit due to the defendant on this basis is already subsumed by credit given to her guilty plea[4].

67.  D1 was not of extreme youth at the time of her commission of the present offence.  There is to be no discount based on her age.

68.  Although I do sympathize with D1’s difficult personal circumstances, it is again trite law that in cases as serious as the present one, these circumstances count for little in mitigation, if at all.

69.  I would like to point out that D1 was not a naïve 21-year-old at the time of her commission of the offence.  She was old enough and determined enough to decide to abandon her grandparents and go live with her first boyfriend and his family before that.  She was the person who collected the drugs and brought them back to the hotel room that she rented.  She knew very well the weight of the drugs involved and nevertheless decided to deal with them.  I find that she will have to face the full consequences of her action and cannot rely on her unfortunate personal circumstances as an excuse for committing the present offence.

70.  While the case was adjourned pending matters to be dealt with before sentencing, D1 had enrolled and completed two 30-hour courses on “Self-Management of Pain” and one for “Warehouse Operations and Inventory Management”.  I find that the defendant’s effort towards her rehabilitation and eventual re-integration into society should be recognized by way of a 6-month reduction in sentence, leading to 222 months’ imprisonment.

D2:

71.  As for D2, he was already 20 years old at the time of the offence and was not of extreme youth.  His personal circumstances are nowhere near as complicated as D1’s.  There will be no discount on this basis.

Step 6: Totality

72.  Taking a step back, I find that in the circumstances, the sentences are fair, just and balanced.  

FURTHER TOTALITY IN RELATION TO D1

73.  D1 committed 2 counts of money laundering in March 2020 in DCCC 56/2023, for which she was sentenced to 4 weeks’ imprisonment on 18 December 2024.  

74.  D1 committed one other count of money laundering in February and March 2022 in ESCC 902/2024, for which she was sentenced to 6 months’ imprisonment on 4 November 2024.

75.  I am told that D1 has finished serving those two sentences.

76.  For the sake of completeness, in relation to the sentence of D1, had this court been required to deal with D1’s sentences in all 3 cases together, I would have ordered all sentences to be served consecutively because there is no suggestion that there are any links and connections between the cases, and that they took place at different times, with the present case being of a completely different nature to the money laundering cases that took place 2 years apart.  

77.  I also find that the sentence would still be fair just and balanced even after taking into consideration the enhancement based on her commission of the offence whilst on bail for the DCCC 56/2023 case.  The two cases are completely unrelated and the defendant is not being punished for committing the earlier money laundering offences, but for her disregard of the law in committing the later offence whilst under court bail.

78.  As for the case of TMCC 571/2023 which involved one charge of conspiracy to traffic in dangerous drugs, and one charge of trafficking in dangerous drugs, Mr. Lee has informed the court that the case has been fixed for trial, commencing on 26 October 2027. There is, therefore, no need for me to take that case into consideration other than that the defendant had committed the present offence whilst on police bail for that case.  

FINAL SENTENCE

79.  The sentences for D1 and D2, after granting them the full one-third discount for their guilty pleas are, therefore, 12 years 4 months and 12 years 8 months’ imprisonment, respectively.