HKSAR v. LEE KWUN FUNG

HCCC 211/2025

[2025] HKCFI 5792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 211 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 counts of trafficking in dangerous drugs before Magistrate Ms. Frances Leung and was, on 23 June 2025, committed to the Court of First Instance for sentence. Before me, he confirmed his pleas and admission to the Summary of Facts, and his convictions were duly recorded.

2.  Particulars of charge 1 are that the defendant on 31 October, 2023, at Room D, the attic of Hutchison Estate, No. 482 Castle Peak Road, Kwai Chung, unlawfully trafficked in dangerous drugs, namely 99.51 kilogrammes of a solid containing 83.01 kilogrammes of ketamine and 1.09 kilogrammes of cannabis in herbal form.

3.  Particulars of charge 2 are that he on the same day as charge 1, at Room F, Flat L, 2^nd Floor, Kwai King Building, No. 31 Kwong Fai Circuit, Kwai Chung, unlawfully trafficked in a dangerous drug, namely 225.3 grammes of cannabis in herbal form.

FACTS

4.  The defendant was intercepted by Customs officers outside Kwong Fai Mansion at around 5:22pm on the charge date.  The defendant was brought to the address in charge 1.  With keys found on his person, the doors to the attic and Room D were opened.

5.  Inside Room D were found 4 carton boxes containing white crystalline solids of ketamine, and a nylon bag containing herbal cannabis.  They were later confirmed to contain the narcotics as particularized in charge 1.

6.  There were packaging paraphernalia including 2 vacuum sealing machines, 2 digital scales, a marker, a pack of 50 plastic bags and 43 zip-lock bags found on the bed.  

7.  The defendant was arrested and said under caution that all the dangerous drugs belonged to him, that the paraphernalia were for packaging the drugs.  He was also the person who rented Room D.  

8.  At about 7pm the same evening, the defendant was taken to his reported residence at Room F in charge 2.  The gate of the flat and wooden door of Room F were opened with keys found on the defendant.  

9.  A carton box containing the herbal cannabis particularized in charge 2 was found on the floor inside the flat.  The tenancy agreement for Room D in charge 1 was found on a table in Room F.

10.  The defendant was arrested and cautioned again, and he claimed that all the cannabis belonged to him, and that he was living in Room F.  

11.  The defendant’s 3 mobile phones were examined and in one of them were photos of herbal cannabis being weighed on a digital scale.  Photographs and videos of 4 carton boxes resembling those seized in Room D were also found.

12.  WhatsApp conversations relating to drug trafficking activities, and communications over moving the 4 carton boxes to Room D in the early hours of 30 October 2023 were found in the same phone.  It would appear that a person saved as “Unknown” (i.e. “KE”) had instructed the defendant to carry out the drug trafficking activities.

13.  Investigations revealed that the defendant had signed the tenancy agreement for Room D on a day in early September 2023, having rented it since 25 March 2023.

14.  The estimated retail value of the ketamine and herbal cannabis seized was, respectively, $48,361,860 and $223,601.

15.  By his pleas and admission to the Summary of Facts, the defendant had admitted and accepted that he was in possession of all the seized dangerous drugs for the purpose of unlawfully trafficking at all material times.

PREVIOUS CONVICTIONS

16.  The defendant has a total of 9 convictions from 4 court appearances.  He was convicted of wounding or inflicting grievous bodily harm under section 19 of the Offences against the Person Ordinance, Cap.212 in 2007 and sentenced to 120 hours of Community Service.

17.  He was jailed for 8 days, about 10 years later in 2017, for unlawful possession of dutiable goods, and fined $1,500 for failing to declare to a Customs Officer.

18.  5 years later, he was sentenced to perform 160 hours of Community Service for criminal damage.

19.  His last set of convictions is dated 22 March 2024, when he was sentenced, concurrently, to 8 months’ imprisonment for doing an act tending and intended to pervert the course of public justice, driving with alcohol concentration above the prescribed limit, dangerous driving and driving without a licence.

20.  The defendant committed the present trafficking in dangerous drugs offences whilst on police bail for the 22 March 2024 offences.  This is an aggravating factor that will be considered below.

BACKGROUND AND MITIGATION

21.  The defendant was born in October 1990 in Hong Kong and was educated up to Secondary 3 level.  He is 35 years old, while his parents are in their 60s and 70s.

22.  Mr. Roy Lau, counsel for the defendant, informs the court that the defendant’s wife had divorced him in December 2024, and their two daughters (aged 10 and 7) are under the care of his ex-wife.

23.  The defendant wrote in mitigation, blaming the bad influence of his peers for committing the offences.  Since his remand, he has understood that money from drug trafficking does not buy happiness for his children.  He regrets losing his beloved wife and the chance to accompany his family growing up.  He understands the gravity of his crime but still seeks leniency so that he may reunite with them and fulfil his responsibilities as a father.

SENTENCING

24.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.

25.  Although the dangerous drugs were found from two different locations, thus leading to two separate charges, given the obvious connection between the defendant’s possession of both, he is to be sentenced on the combined quantity of drugs seized to reflect the reality of the situation of him being in overall possession of the drugs found at the two locations.[1]

APPLYING HERRY JANE YUSUPH

26.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as read in conjunction with HKSAR v Lee Ming Ho [2024] HKCA 150 are applied.

Step 1: The applicable guideline tariff bands

27.  For 83,101g of ketamine, the guideline tariff band under Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, as read in conjunction with HKSAR v Sin Chung-kin [2013] 1 HKLRD 627, HKSAR v Chow Yau Ching [2014] 2 HKLRD 639 and HKSAR v Sze Kin Wang [2014] HKEC 1195, is 20 years or more.

28.  According to HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 (date of judgment 20 January 2023[2]), the tariff band for up to 2,000g (1,315.3g is the charge quantity) of herbal cannabis is “up to 16 months”.

Step 2: The defendant’s role and culpability

29.  Mr. Lau fairly pointed out that based on the packaging paraphernalia found in Room D, the photos of drugs being weighed and communications relating to drug trafficking activities found in the defendant’s phone, and in particular the fact that the defendant signed the tenancy agreement of Room D, the defendant’s overall role was more important than that of a simple courier or storekeeper.

30.  On this basis, Mr. Lau accepts that an enhancement to his sentence may be regarded as necessary, and suggested, with reference to HKSAR v Islam Azharul [2020] 1 HKLRD 644, where a 6-month enhancement was considered appropriate for the trafficker who was involved in the packaging and dissemination of the drugs, as well as for the rental of the room for their storage, that a 4 to 6-month enhancement should be applied. 

Step 3: The relevant band within the guidelines

31.  On a purely arithmetical application of the tariffs, the combined quantity of herbal cannabis, and the sole quantity of ketamine would attract starting points of 10.5 months and over 20 years’ imprisonment, respectively.

32.  Since two different types of dangerous drugs were trafficked, I adopt the combined approach as propounded in HKSAR v Yip Wai Yin [2004] 3 HKC 367[3]. I have applied the absurdity, conversion and ratio tests as used in HKSAR v Chan Yuk Leong CACC 318/2013, [2014] HKLRD (Yrbk) 325 to assist me in arriving at the correct starting point.  

ABSURDITY TEST

33.  On the basis of all narcotics being the more potent drug of ketamine, the combined starting point would still be above 20 years.

CONVERSION TEST

34.  If the herbal cannabis is converted into ketamine that would yield the equivalent sentence of 10.5 months, the total converted quantity of ketamine would be 83,010.43g (83,010g + 0.43g), which would still have a notional starting point of over 20 years.

RATIO TEST

35.  Since the sentence for assuming all 100% of the narcotics were ketamine would still be over 20 years, there is no practical use of applying the ratio test.

THE COMBINED NOTIONAL STARTING POINT

36.  In HKSAR v Pon Chao-kang Jason [2023] HKCFI 3284, Madam Justice Barnes set out a number of cases involving larger quantity of ketamine that the Court of Appeal had considered, which I find helpful in deciding on the appropriate starting point in the present case:

“I bore in mind that the trafficking of 3 kilogrammes of ketamine would attract the starting point of 20 years, as in the case of Sin Chung Kin[4]. And also that an arithmetic progression for trafficking in much higher quantities should be avoided, and that is the case of Lee Tak Kwan[5].

And the following starting points were considered appropriate by the Court of Appeal: the first one is 27 years for the trafficking of 167.3 kilogrammes of ketamine as a storekeeper, and that is the case of Leung Wai Man[6]; 21 years for the trafficking of 42.69 kilogrammes of ketamine, one of two counts, that is the case of Yeung Kwok Ming[7]; 25 years for the trafficking of 122.36 kilogrammes of ketamine, and paid to watch over the dangerous drugs inside the flat, that is the case of Cheung Yuk Keung[8]; 19 years and 9 months for the trafficking of 2.89 kilogrammes of ketamine, that is the case of Chow Yau Ching[9]; 24 years for the trafficking of 8.33 kilogrammes of ketamine by a 16-year-old and the drugs were found inside the rucksack and travel bag carried by him, and home search yielded reusable bag containing electronic scale, resealable bag and two plastic spoons and defendant said that he helped others for a reward of $500 and the two did not belong to him, so that was the case of Wong Ka Chun[10]; 22 years for cross-border trafficking of 39.73 kilogrammes of ketamine, the case of Wong Kam Chuen[11]; 21 years for the trafficking of 21.31 kilogrammes of ketamine, the case So Wing On[12]; and lastly 20 years and 6 months for trafficking 4 kilogrammes of ketamine in the case of HKSAR v Y[13].”

37.  With reference to these cases, having regard to the above test results, and taking into consideration the defendant’s role and culpability, I adopt a combined starting point of 24 years 9 months’ imprisonment.

Step 4: Aggravating factors

38.  It is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor since it would mean that the traffickers will be able to cater for a wider market.  Given the relatively small quantity of herbal cannabis, I enhance the sentence by 3 months.

39.  The defendant committed the present offences about 2 months after police bail was granted to him in the perverting of public justice series of offences for which he was sentenced on 22 March 2024.  For this aggravating factor, which reflected the defendant’s disregard for the law, I enhance his sentence by 6 months, taking the sentence up to 25 years 6 months[14] after enhancement.  

Step 5: Mitigating factors

40.  There are no mitigating factors other than the defendant’s timely pleas, for which he is granted the full one-third discount, resulting in a combined sentence of 204 months, or 17 years, after plea.

Step 6: Totality

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

FINAL SENTENCE

42.  To achieve the said combined sentence, I sentence the defendant to 204 months’ imprisonment on count 1, and 1 month’s imprisonment on count 2, both after plea, and order the sentences to run wholly concurrently.  The defendant is, therefore, sentenced to 17 years’ imprisonment after plea for the two counts.