HKSAR v. FAN LEUNG KWAN

HCCC 210/2025

[2025] HKCFI 5788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 210 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before Magistrate Ms. Frances Leung to one count of trafficking in a dangerous drug[1] and was committed, on 23 June 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 14 March, 2023, at Sun Ling Plaza, No. 30 On Kui Street, Fanling, New Territories, unlawfully trafficked in a dangerous drug, namely 163.991 kilogrammes of a solid containing 121.969 kilogrammes of cocaine.

FACTS

3.  On the charge date, the defendant was seen by police officers in ambush entering Room 406 of Sun Ling Plaza at around 11:22am, carrying with him a travel bag.  The defendant came out of the room about 4 minutes later, empty handed.  

4.  Upon interception by police officers, the defendant fled down the staircase but was subdued.  With the keys that the defendant was holding in his hand, and the passcode provided by the defendant under caution, the officers gained entry into Room 406 at 11:35am, in execution of a search warrant.  

5.  The room was about 300 square feet, with nothing other than a table, a chair and some empty carton boxes lying around.  The windows were covered by papers.

6.  149 cocaine blocks were found placed neatly in a corner of the room.  Another 15 cocaine blocks were found inside the travel bag that the defendant was carrying before his interception.

7.  There were also 2 trolleys, a stack of gloves, a piece of paper with Chinese characters and numbers written on it, 2 rolls of tape, 3 marker pens, a utility knife, a WiFi router and CCTV cameras at different places in the room.

8.  The defendant was arrested for trafficking in dangerous drugs and claimed under caution that he was helping others to deliver drugs for $4,000 per block because he needed money.

9.  The estimated street value of the cocaine was around $177,110,280 (if in cocaine powder form), or $219,419,958 (if in crack cocaine form).

10.  The defendant had $10,100 and RMB20 cash on his person, which he would later confirm to be money from the drug trafficking.

11.  In the subsequent video recorded interview, the defendant claimed, among other things, that he needed the money because he wanted to marry his girlfriend.  He became acquainted with a person “Ah King” in around October or November 2022.  In early December 2022, Ah King asked him if he wanted to traffic in dangerous drugs for quick money and the defendant said yes.  

12.  Ah King said the defendant would be paid $4,000 cash for each block of cocaine he delivered.  Ah King also asked the defendant to manage the storage unit, which was Room 406, and gave him the keys.  

13.  In late December 2022, Ah King told the defendant to get a pre-paid SIM card for their communications. Ah King then told him to pick up about 8 to 10 carton boxes of drugs from the roadside outside a factory in the vicinity of Sun Ling Plaza, and deliver them to Room 406, which the defendant did.  

14.  After the defendant had picked up and delivered the boxes, he counted and saw that there were about 100 odd cocaine blocks in them.  The defendant reported to Ah King and then left.  He was later on told to deliver about 100 odd blocks to someone.

15.  In around January and February 2023, Ah King called the defendant on two separate occasions and told him to deliver specific numbers of the cocaine blocks to other people.  The defendant claimed that he did receive a cash reward but refused to disclose how much it was.

16.  The defendant met Ah King at a bar in TST on 8 March 2023.  Ah King told him to deliver some drugs to Room 406 on 14 March.  Ah King gave his new phone number to the defendant, which he noticed was frequently changed.  

17.  An unknown person called the defendant on the morning of 14 March 2023 and told the defendant to head towards Yip Fung Street.  The defendant arrived at around 11am, whereupon he received two photos of a travel bag at the location where it was to be picked up.  The defendant found the location and picked up the travel bag and returned with it to Room 406.

18.  When inside, the defendant counted there were 15 cocaine blocks and reported to Ah King over the phone.  

19.  The defendant said in the interview that he had used the paraphernalia in the room to unbox the cocaine, make markings on the carton boxes and transferred the boxes.  The WiFi router in the room was given by Ah King.  

20.  By his admission to the Summary of Facts, the defendant had admitted and accepted that, at the material time of the offence, he was knowingly in possession of all the seized cocaine for the purpose of unlawful trafficking in their entirety.  

PREVIOUS CONVICTIONS

21.  The defendant has two previous convictions for trafficking in dangerous drugs, both dating back to February 1996.  The two other drug related convictions were for the possession of dangerous drugs when he was fined $5,000 in February 2004, and ordered to be detained at a Drug Addiction Treatment Centre in October 2012. The remaining convictions were for gambling, disorderly conduct in a public place, assault occasioning actual bodily harm, assaulting or obstructing a police officer, and dangerous driving and related charges.  His last convictions were for driving while disqualified, using a motor vehicle without third party insurance and failing to comply with traffic signals in May 2020, when he was given a 2-month suspended sentence and fined.  

BACKGROUND AND MITIGATION

22.  The Defendant was 46 at the time of the offence.  He was diagnosed with stage 3 lung cancer in August 2024 during his present remand.  It was later found that the cancer has metastasized to the lymph nodes and the rib cage and has since escalated to stage 4, requiring the defendant to undergo a regimen of chemotherapy, consisting of 11 cycles administered every three weeks.  This treatment protocol remains ongoing in Queen Mary Hospital. 

23.  Mr. Alex Ng, counsel for the defendant, points out that the defendant’s health condition has made his incarceration even more challenging, both physically and psychologically.  

24.  The defendant wrote in mitigation, admitting to his being greedy in his commission of the offence.  He is deeply remorseful, and apologizes to those directly and indirectly affected by his criminal conduct.  He is prepared to face the long term of imprisonment that he knows is inevitable, but seeks leniency nevertheless so that he may contribute to society, promising he will be even more enthusiastic with the charitable work that he had been engaging in.

25.  The defendant’s fiancée tells the court how she first met the defendant when they were both doing voluntary work at a charitable organization.  She knows the defendant as a good person, always eager to help, and believes that he had been led astray by undesirable peers.  She seeks leniency for him so that they may continue their lives together soon.

26.  The defendant’s 78 year old mother blames herself for not raising his son properly, only scolding and guilting him, not knowing how to help him to rectify his life.  It pains her to see him being jailed time and time again.  Yet, despite his faults, the defendant has always been filial and has been the family’s sole financial support.  Finding out about her son’s lung cancer was heartbreaking for her, and extremely difficult to deal with alone since her husband has passed away, and she is mentally and physically exhausted.  She seeks leniency for her son so that he might still be able to enjoy her homecooked meals and for them to spend more time together.  

27.  Go In Love Charity Foundation tells the court how the defendant has been involved with their organization since 2018, taking part in voluntary work looking after the elderlies, inspiring others.  In view of the defendant’s health condition, they urge the court to be lenient.

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.  

29.  The sentencing approach laid down in Herry Jane Yusuph[2], together with the updated sentencing guidelines in Huang Ruifang[3] are applied as follows.

Step 1: The applicable guideline tariff bands

30.  For 121.969 kilogrammes of cocaine, the applicable guideline tariff band is “over 30 years’ imprisonment”.

Step 2: The defendant’s role and culpability

31.  Based on the Summary of Facts, the defendant’s role was as a storekeeper and a courier.  There is insufficient evidence to suggest that he had engaged in any packaging of the cocaine blocks, nor to indicate that he was a direct trafficker or someone higher up in the hierarchy of this drug trafficking operation.  

Step 3: The relevant band within the guidelines

32.  First of all, it was stated in the case of HKSAR v Sum Ka Wa (岑嘉華) [2024] 4 HKLRD 777 that “…realistically and for all practical purposes, there is a prevailing sentencing limit for the offence of trafficking in dangerous drugs, which is 35 years’ imprisonment after trial.”

33.  Mr. Ng refers to two Court of First Instance sentencing cases[4] , where about 502kg of cocaine and 67.27kg and 139.29kg of heroin and ice were trafficked, respectively, to suggest a starting point of 31 years’ imprisonment.

34.  I do accept the comparisons and will adopt a 31-year notional starting point.

Step 4: Aggravating factors

35.  This is the defendant’s third conviction for trafficking in dangerous drugs, although both the previous ones date back to 1996.  He also has two drug related convictions dated 2004 and 2012.  In addition, there has been 14 other assorted convictions, with the latest ones in 2020.  I find that the defendant is a repeat offender, and as such, despite the lapse of time, there is a need to enhance the sentence to deter both the defendant and the general public.

36.  Taking into consideration the defendant’s health condition, which may suggest a lower chance of re-offending, and the fact that the previous trafficking offences were committed some 30 years ago, I find that a proper enhancement is that of 6 months, being 1.6% of 31 years. 

Step 5: Mitigating factors

37.  Although the defendant has been engaged in volunteer work for the elderlies, I find the defendant’s trafficking of this large quantity of cocaine a complete mockery of any good intentions he might have had in his charitable work.  While it is not a setting off exercise between lives saved and lives ruined, I find nevertheless that there should not be any reduction in sentence on the basis of his volunteer work given the seriousness of the present offence.

38.  As for the defendant’s personal circumstances and in particular his ill health, I apply the following principle in HKSAR v Lkhaijav Bayanmunkh [2012] 2 HKC 233; CACC 320/2011, where the Court of Appeal stressed that the courts had been,

“11….at pains to make it clear that no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers. Should it do so the courts are at risk of creating a group that drug traffickers can target for exploitation precisely because it is known that such persons will be treated more leniently.”

39.  In view of the quantity of dangerous drugs trafficked by the defendant, and applying the principle above, I find that no discount should be given for his health situation.

40.  As such, there are no mitigating factors apart from the defendant’s timely plea of guilty, for which he is granted the full one-third discount, resulting in a sentence of 252 months.

Step 6: Totality

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

FINAL SENTENCE

42.  The defendant is, therefore, sentenced to 21 years’ imprisonment after plea.