HKSAR v. CHEUNG MAN LUNG

DCCC 476/2025

[2026] HKDC 1235

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 476 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant, Mr. Cheung Man-lung, pleaded guilty before me to the following three charges:

Charge 1: Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134;

Charge 2: Driving while disqualified, contrary to section 44(1)(b)  of the Road Traffic Ordinance, Cap. 375; and

Charge 3: Using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap. 272.

2.  At the proceedings the defendant also admitted the Summary of Facts put to him. Therefore he was duly convicted of all three charges.

3.  The proceedings were conducted in English.  As I shall later mention briefly, for the purpose of determining the issue whether part of the drugs were for the defendant’s self-consumption, a Newton hearing was held.  At all different stages in the proceedings, the defendant was represented by Mr. Lai of counsel.

4.  This is a typical stop and search case. The facts are therefore relatively simple and straightforward.

5.  On the evening of 1 September, 2024, the defendant, while walking alone on Tam Kung Road, Kowloon City, was stopped by a team of police officers who requested him to produce his identity card for inspection. In response, the defendant said that he had left his identity card in his vehicle, which was parked at a point near the junction between Tam Kung Road and San Shan Road.  He therefore led the police officers to his vehicle, which was a Hyundai light goods vehicle, to retrieve his identity card.

6.  Nonetheless, when parties reached the vehicle, the defendant’s demeanor raised the police officers’ suspicion, which had caused the police officers to conduct a thorough search of his vehicle. As a result, the following items were found:

(a)  In the lower door compartment: a black plastic bag containing 17 small bags of cocaine and 19 small bags of ketamine (Exhibits P1 and P2)  and also a purple plastic bag containing 13 small bags of cocaine (Exhibits P3 and P4);

(b)  In the door handle compartment: a paper packet containing traces of ketamine (Exhibit 5); and

(c)  On the dashboard: a transparent plastic bag containing 21 small bags of ketamine (Exhibit P6).

7.  At the scene, the police officers had reasonable grounds to believe that the substances contained in those plastic bags and the paper packet were dangerous durgs. Therefore the officers seized those items, arrested and cautioned the defendant. Under caution, the defendant said all those were dangerous drugs he possessed for his own use.

8.  Police’s further investigation revealed that at the material time the defendant was prohibited from driving by reason of a 6-month disqualification order made by the court on 24 June 2024. Such disqualification order would only end on 23 December 2024. His motor vehicle’s third party insurance, if there was any, would automatically be suspended during the disqualification period.

9.  At all material times the defendant was the registered owner of the light goods vehicle. In other words, when he had driven out the vehicle onto the road, he committed an offence of driving whilst disqualified and also an offence of driving without a valid third party insurance.

10.  Police officers therefore cautioned him further for those two offences, to which he admitted. He said he knew he had been disqualified from driving, but he had to drive and deliver goods for a living.

11.  At that time the defendant possessed cash in the sum of $12,355.80.

12.  A government chemist has certified the narcotic content of those substances police seized from the defendant’s light goods vehicle, namely exhibits P1 to P6. The certification was as follows:

(a)  exhibits P1, P3, P4 referred to earlier were cocaine, and they were altogether 5.11 grammes of a solid containing 4.52 grammes of cocaine; whereas

(b)  exhibits P2, P5 and P6 referred to earlier were ketamine, and they were altogether 24.58 grammes of a solid containing 20.51 grammes of ketamine.

13.  By reference to the statistics and data collected by the police, the street value of such quantities of cocaine and ketamine was estimated to be approximately $14,675.59.

14.  In a subsequent video-recorded interview that the police conducted with the defendant under caution, the defendant said, amongst other things, he was a drug addict, and had the habit of taking cocaine and ketamine. He said he bought all the drugs seized for his own consumption, and the money on his body was the wages earned from his delivery job, but not proceeds obtained from trafficking in those drugs.

15.  The defendant was 47 years old at the time of the offences, and is 49 at the time of sentencing. He is single. Prior to his arrest on 1 September 2024 he was living in a privately owned apartment in Sau Mau Ping with his mother. He was a driver in the logistics industry. He had to deliver goods to customers who placed their orders on the Mainland shopping platform Tao Bao. His monthly salary was about $20,000, which would be paid to him by his employer by way of cash in two instalments each month.

16.  The defendant is not a newcomer to the criminal court. According to the criminal record produced by the prosecution, he had appeared in court on 17 occasions, which resulted in his being convicted of over 20 charges. Those convictions included 14 convictions for possession of dangerous drugs, two for trafficking in a dangerous drug, two for driving whilst disqualified (one prosecuted under Cap. 374, one prosecuted under Cap. 375)  and two for using a motor vehicle without third party insurance.

17.  He has been sent to the Drug Addiction Treatment Centre twice before.

18.  During mitigation, Mr. Lai for and on behalf of the defendant submitted that a significant proportion of the drugs found in the defendant’s vehicle were for the defendant’s self-consumption. Mr. Lai submitted that the defendant was a habitual user, and indeed abuser of both cocaine and ketamine. In making such contention he placed reliance on a number of materials, including the defendant’s numerous convictions for the offence of possession of dangerous drugs, the fact that he had been sentenced to the DATC before, what he said in the interview, and furthermore a urine test report provided by the Correctional Services Department indicating that the defendant had taken cocaine just shortly before his remand. Mr. Lai submitted that, according to HKSAR v Wong Suet Hau, Ice[2002] 1 HKLRD 69 if the court is satisfied on the materials produced by the defence that the defendant intended to keep part of the dangerous drugs for his own consumption but did not intend to traffic in all the drugs, then the sentencing court could proceed to sentence the defendant by giving him or her a further discount on top of the usual one-third discount, without the necessity of calling for a Newton inquiry.

19.  Without any disrespect to the prosecution, I would say that, despite Mr. Lai’s able argument and the cogent evidence placed before this court, the prosecution unrealistically opposed such plea in mitigation. That explains why, as I have mentioned at the outset of this piece of writing, a Newton hearing was conducted in order to determine whether part of the drugs were for the defendant’s self-consumption (Here, again I have to point out that, quite different from the prosecution’s contention, the authority did not say that the sentencing court must satisfy itself that the defendant intended to keep a significant proportion of the drugs for his own use before the court accepts the defendant’s submission; as long as part of the drugs were for the defendant’s self-consumption, it would suffice).

20.  After the Newton hearing, at which the defendant testified, I ruled that the defendant had discharged the legal burden placed upon him to the required standard, namely, that of proof on a balance of probability. I accepted the defendant’s contention that approximately half of the dangerous drugs found in this case were for self-consumption. Please refer to my ruling for the Newton hearing for the reasons I have given.

21.  After letting my ruling known to the parties, I did invite Mr. Lai to make further submission, if any, in regard to the discount to be given to the defendant in addition to the usual one-third discount. Mr. Lai submitted, in accordance with legal authorities, that in those circumstances the sentencing court could give a further discount in the order of 10% to 15%. Mr. Lai humbly suggested that, in the light of this court’s ruling that about half of the drugs were for the defendant’s own consumption, a further 15% discount might be just and appropriate.

22.  I agree with Mr. Lai’s submission, and with that in mind I proceed to sentencing with regard to all those 3 charges.

23.  The defendant trafficked in both cocaine and ketamine. In HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, the Court of Appeal held that a 7-step methodology should be followed where a court has to sentence a defendant guilty of trafficking in a mixture of dangerous drugs.

24.  The sentencing guidelines applicable to trafficking in cocaine are to be found in HKSAR v Huang RuiFang, CACC 106/2022. For present purposes, only the first two bands are relevant:

(a)  Up to 10 grammes: 2 to 5 years’ imprisonment; and

(b)  10 to 50 grammes: 5 to 8 years’ imprisonment.

25.  The sentencing guidelines applicable to trafficking in ketamine were laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng[2009] 1 HKLRD 1, CAAR 7/2006 quite some time ago. Likewise, only the first two bands are relevant for present purposes:

(a)  1 to 10 grammes: 2 to 4 years’ imprisonment; and

(b)  10 to 50 grammes: 4 to 6 years’ imprisonment.

26.  The narcotics involved in the present case are 4.52 grammes of cocaine and 20.51 grammes of ketamine.

27.  Applying the respective guidelines mentioned, and purely by way of a simple arithmetic approach, 4.52 grammes of cocaine alone would yield a starting point of about 40.27 months’ imprisonment; whereas 20.51 grammes of ketamine would yield a starting point of 54.31 months’ imprisonment.

28.  Between those two drugs, obviously cocaine is the more potent drug, because trafficking in a relatively small portion of cocaine would already attract a substantial imprisonment term.

29.  In HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal held that, in a case where a defendant trafficked in a mixture of drugs, or a cocktail drug, the court should adopt three different tests in order to, on the one hand, determine the sentence appropriate to the circumstances, and on the other hand, cross-check whether the sentence that the court is minded to pass on the defendant is excessive or inadequate. Those three tests are absurdity test, conversion test and ratio test respectively.

30.  In the present case, the total weight of cocaine and ketamine altogether is 25.03 grammes.

Absurdity Test

31.  The concept of the absurdity test is to assume that the same single type of drug accounts for the total weight of all the drugs added together, and to then work out the sentence on the sentencing scale applicable to that type of drug.

32.  On the assumption of there being 25.03 grammes of cocaine, the starting point is 75.53 months’ imprisonment.

33.  On the assumption of there being 25.03 grammes of ketamine, the starting point is 57.02 months’ imprisonment.

Conversion Test

34.  The concept of the conversion test is to pick out the less potent drug, and with the actual weight of that less potent drug, to first of all work out the sentence by referring to the sentencing guidelines applicable to that less potent drug. With such sentence as the basis, one is look at the sentencing guidelines applicable to the more potent drug, and to find out the weight of the more potent drug needed in order to attract that sentence. In that way the less potent drug is, so to speak, converted into the more potent drug in terms of a particular weight. Finally the newly acquired figure, in terms of weight, is added up with the actual weight of the more potent drug, and the sentence is worked out on the basis of the notional total weight by making reference to the sentencing guidelines applicable to the more potent drug.

35.  As indicated above, ketamine is the less potent drug. There are 20.51 grammes of ketamine. On the sentencing scale applicable to ketamine, such amount would attract a starting point of about 54.31 months’ imprisonment.

36.  With the sentencing scale applicable to cocaine in mind, one could deduce that trafficking in about 8.42 grammes of cocaine would attract the same starting point (of 54.31 months’ imprisonment). Therefore, notionally 20.51 grammes of ketamine can be converted into 8.42 grammes of cocaine.

37.  Now, assume that there are a total of 12.94 grammes of cocaine (4.52 grammes + 8.42 grammes), the sentence, in accordance with the sentencing guidelines applicable to cocaine, would be about 62.28 months’ imprisonment.

Ratio Test

38.  The concept of the ratio test is to use the total weight of all the drugs as the basis, and to work out the respective proportion of each type of the drug in existence out of the total weight. The respective ratio is then used to work out the respective notional sentence in the imaginary case where 100% of the drugs were of the same single type. In other words, in this process the results of the absurdity test have to be used. In the end, the total sentence is worked out by adding up the two respective notional sentences.

39.  As said, the total weight of all the cocaine and ketamine added together is 25.03 grammes.

40.  The weight of cocaine in this case is 4.52 grammes. Such accounts for 18% of the total weight. Earlier I have already worked out that, should there be 25.03 grammes of cocaine, the starting point is 75.53 months’ imprisonment. Hence, 18% of the total weight would yield a sentence of about 13.24 months’ imprisonment.

41.  The weight of ketamine in this case is 20.51 grammes. Such accounts for 82% of the total weight. Earlier I have already worked out that, should there be 25.03 grammes of ketamine, the starting point is 57.02 months’ imprisonment. Hence, 82% of the total weight would yield a sentence of about 46.75 months’ imprisonment.

42.  Under the ratio test, the sentence is 59.99 months’ imprisonment (13.24 months + 46.75 months).

43.  One can see from the calculations above that, the results of the tests are as follows:

(i)  absurdity test: in the range of 57.02 to 75.53 months’ imprisonment;

(ii)  conversion test: 62.28 months’ imprisonment; and

(iii)  ratio test: 59.99 months’ imprisonment.

44.  The purpose of undertaking the absurdity test is to merely work out the range within which the sentence should fall. As its name suggests, in a sense it is absurd because it only provides the court with the lowest and the highest possible figure in the event of there being one single type of drug only. The results of the absurdity test are not to be preferred.

45.  The result of the ratio test is close to that of the conversion test. In other words, the appropriate starting point should be somewhere between 60 months to 62 months’ imprisonment.

46.  Having given consideration to all the circumstances, I would adopt a starting point of 61 months’ imprisonment. Because this court has yet to reflect other aggravating features of the case in the sentence, such would only be an initial starting point.

47.  In HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, CACC 93/2019, the Court of Appeal stated that the sentencing court should assess the role assumed by the defendant when he was caught trafficking in the drugs in question. At this juncture I cannot ignore the fact that I have ruled in the Newton hearing that the defendant had discharged his legal burden of proving on a balance of probability that approximately half of the drugs were for his own consumption, and hence only half of the drugs were for trafficking purposes.

48.  Likewise, I cannot ignore the defendant’s evidence given in the Newton hearing that he performed the job of delivering those drugs solely for the purpose of securing drugs for free from his drug provider. There was nothing to contradict what he said in the witness box. In those circumstances, I find that the role of the defendant was no more than that of a street trafficker. That is to say, he assumed a role at the bottom end of the trafficking hierarchy. I would consider that enhancing the initial starting point by 3 months would be sufficient to reflect his role.

49.  Hence, the final starting point is 64 months’ imprisonment.

50.  The defendant pleaded guilty. He is entitled to a one-third discount. The sentence is first reduced to 42.67 months’ imprisonment.

51.  As stated above, the defendant managed to persuade this court that about half of the drugs were for his self-consumption. That is, in my view, a significant proportion of the drugs. In order to give effect to that, I am prepared to give him a further 15% discount.

52.  Therefore, the final sentence for Charge 1 is 36 months (I disregarded the digits after the decimal point).

53.  I intend to deal with the sentences for Charges 2 and 3 together.

54.  As stated above, the defendant’s criminal record shows that he has twice been convicted of driving whilst disqualified, and twice convicted of using a motor vehicle without third party insurance.

55.  I am aware the convictions relating to those two offences date back to 2009. However, it would appear to me that the defendant has a tendency of repeating offences of this nature. I would consider that, for each of Charges 2 and 3, the appropriate starting point should be one of 3 months’ imprisonment.

56.  After giving the defendant a one-third discount, the sentence for each of Charges 2 and 3 is 2 months’ imprisonment.

57.  Under the relevant provisions, at the time of passing sentences for Charges 2 and 3, it is also mandatory for this court to make a disqualification order so as to prohibit the defendant from driving and obtaining driving licences of all classes of vehicle for a certain period of time.

58.  In his written submissions, Mr. Lai invited this court to consider making an order to the following effect: first of all, that the defendant be disqualified for 12 months under each charge; secondly, that both disqualification orders are to run concurrently; and thirdly, that the disqualification periods are only to commence upon the defendant’s discharge from prison.

59.  The orders proposed by Mr. Lai are not allowed under the law. With respect, I believe it was due to an oversight of the relevant provisions on his part.

60.  I should start my discussion by first mentioning section 4(2)(a)  and section 4(2)(b)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap. 272. Section 4(2)(a)  provides that the disqualification period should be not less than 12 months, and not more than 3 years. It does not mandate the period of disqualification even in the case where the defendant is a repeated offender.

61.  However, section 4(2)(b)  is significant. It reads:

“A person disqualified by virtue of a conviction under this section or of an order made thereunder for holding or obtaining a licence shall, for the purposes of the Road Traffic Ordinance (Cap. 374), be deemed to be disqualified by virtue of a conviction under the provisions of that Ordinance.”

62.  Section 44(2)  of the Road Traffic Ordinance, Cap. 374 reads:

“If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate shall order that the person be disqualified—

(a)  in the case of a first conviction, for a period of not less than 12 months; and

(b)  in the case of a second or subsequent conviction, or a conviction subsequent to a conviction under section 25of the repealed Ordinance, for a period of not less than 3 years,

unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.”

63.  Furthermore, section 44(3)  of Cap. 374 reads:

“The period of any disqualification under subsection (2)  shall be in addition to any other period of disqualification ordered under any other provision of this Ordinance.”

64.  This is not the first time that the defendant has been convicted of the offence of driving whilst disqualified. I am aware that some provisions under Cap. 374 do provide the sentencing court with a discretion of disregarding prior convictions of the defendant in some situations, for example, where the offence charged is drink driving (see section 39(3)  of Cap. 374). Nevertheless, there are no such provisions when the charged offence is driving whilst disqualified.

65.  Hence, section 44(2)  of Cap. 374 dictates that he should be disqualified for not less than 3 years.

66.  Furthermore, section 44(3)  of Cap. 374 dictates that such disqualification period should be in addition to any other disqualification order made under the provisions of Cap. 374; and, as a result of the deeming provision of section 4(2)(b)  of Cap. 272, any disqualification order made under Cap. 272 is deemed to be an order made under Cap. 374.

67.  Contrary to Mr. Lai’s submission, this court has no jurisdiction to suspend the operation of any of the disqualification orders made according to the provisions under section 44(2)  of Cap. 374 and section 4(2)  of Cap. 272 until after the defendant’s release from prison. Section 69A of Cap. 374, which provides that the court must make such a suspension order, is only applicable to road traffic offences that attract a deduction of 10 driving-offence points. In this regard, the schedule to the Road Traffic (Driving-offence Points)  Ordinance, Cap. 375 is relevant.

68.  The end result is that, for Charge 3, I should make a disqualification order of not less than 12 months, but not more than 3 years; and for Charge 2, I should make a disqualification order of not less than 3 years, and the two orders should be consecutive to each other.

69.  No special reason was put to this court that the defendant should not be disqualified from driving or obtaining new driving licences.

70.  Moreover, I should make a note that all previous disqualification orders made against the defendant have lapsed by the time of sentencing.

71.  I have given consideration to all the circumstances. In respect of Charge 2, I make an order disqualifying the defendant from driving any vehicle and obtaining driving licences of all classes of vehicle for a period of 3 years. In respect of Charge 3, I make an order disqualifying the defendant from driving any vehicle and obtaining driving licences of all classes of vehicle for a period of 1 year.

72.  As the order of disqualification for Charge 2 should not run concurrently with the order of disqualification for Charge 3, I order that the disqualification order for Charge 3 should commence today, whereas the disqualification order for Charge 2 should only commence upon expiry of the disqualification order for Charge 3; that is to say, the total disqualification period should be 4 years counting from today.

73.  I have to also consider totality of the imprisonment terms.

74.  Charges 2 and 3 arose out of the same conduct on the part of the defendant. I order the sentences of Charges 2 and 3 to run concurrently. However, trafficking in dangerous drugs is an offence distinct from those motor vehicle-related offences. I order that the sentences of Charges 2 and 3, which is one of 2 months’ imprisonment, to run wholly consecutively to the sentence of 36 months’ imprisonment for Charge 1.

75.  To conclude, the defendant is sentenced to 38 months’ imprisonment, and disqualified from driving any vehicle and obtaining driving licences of all classes of vehicle for 4 years (counting from today).