HKSAR v. SZE CHOI WAI

HCCC 331/2024

[2025] HKCFI 2306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 331 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs[1] before Magistrate Mr. Jeffrey Sze, admitted to the summary of facts and was committed, on 14^th October 2024, to the Court of First Instance for sentence. He confirmed his plea and admission before me and the conviction was duly recorded.

2.  Particulars of the charge are that he on 18^th March, 2023, at Flat B3, 8^th Floor, Block B, Wing Ning Building, Nos. 501-511 Shun Ning Road, Cheung Sha Wan, Kowloon (hereinafter as ‘the flat’), unlawfully trafficked in dangerous drugs, namely 31.69 grammes of a solid containing 26.35 grammes of cocaine and 99 grammes of a crystalline solid containing 79.9 grammes of methamphetamine hydrochloride (commonly referred to as ‘ice’).

FACTS

3.  The defendant was seen returning to the flat at about 12:20am on the charge date.  While he was using his keys to open the gate, ambushing police officers who were keeping the flat under surveillance intercepted the defendant.  

4.  A search warrant against the flat was executed.  Inside a plastic container placed on a table in the living room, 4 packs of dangerous drugs and a plastic spoon were found.  There was also a paper box with 2 digital scales, a heat sealer, a metal spoon, a bag of salt and 2 bags of empty resealable plastic bags inside the said container.  

5.  A tenancy agreement in the defendant’s name was found on the same table, together with a receipt and a box of baking soda.  A measuring cup containing liquified dangerous drugs was found inside the refrigerator in the living room.

6.  The defendant was arrested for trafficking in dangerous drugs.  Under caution, he claimed that the drugs were for sale and asked for a chance.

7.  Subsequent inspection and examination confirmed the narcotic contents as particularized.  The dangerous drugs were found from various plastic bags, on the spoon, on the digital scales, and in the measuring cup.

8.  In the subsequent cautioned video recorded interview, the defendant claimed that he lived alone at the flat, which he started to rent in November 2022 at a rental of $9,500 per month.  There was only one set of keys and he had never let anyone borrowed them.  The owner of the flat confirmed that the defendant’s rental started on 28^th November 2022.

9.  He claimed that the drugs and apparatus were sold to him for $500 cash by a male called ‘Ah Keung’, whom he had met only once in a park near the flat.  The defendant claimed that he had never sold any of the drugs he bought, but he said the plastic spoon was for transferring the drugs into smaller bags.  Ah Keung had told him to put 0.3g of drugs into each of those re-sealable plastic bags to sell.  The 2 scales were also from Ah Keung, and they were for measuring out the drugs.  The measuring cup and the liquid found inside were given to him by Ah Keung.  The liquid was originally inside a plastic bottle, and the defendant had poured them into the cup as instructed by Ah Keung.  The defendant at first said he was to freeze the liquid and then sell them in solid form of 0.3g per plastic bag. He later changed to say that he would wait for the frozen liquid to melt before selling.  

10.  By his admission to the Summary of Facts, the defendant had accepted that he had unlawfully trafficked in all the dangerous drugs found and seized inside the flat that day.

PREVIOUS CONVICTION

11.  The defendant has two previous convictions, being assault occasioning actual bodily harm and unlawful sexual intercourse with a girl under 16.  He was sentenced to 15 months’ probation for both offences, served concurrently.

BACKGROUND AND MITIGATION

12.  The defendant was born in March 1997 and is 28.  He was 26 at the time of his commission of the offence and was addicted to cocaine.  He was educated up to Form 4 level and took up kitchen work after leaving school.  He was last employed as the executive chef of a Japanese restaurant, with a monthly salary of $30,000 plus bonuses, but he was unemployed at the time of his arrest.  He rented the flat in November 2022 and lived there alone.

13.  Ms. Fanny Wong submitted that, as claimed in his video recorded interview, the defendant had bought the seized drugs and paraphernalia from someone else and it was his intention to sell them on as the “end retailer”.  She, fairly, accepted that the arithmetical starting point will need to be enhanced to reflect this added culpability when compared to a simple courier or storekeeper.

14.  Ms. Wong also accepted that the starting point will need to be further enhanced due to the fact that the trafficking involved multiplicity of drugs, but reminded the court that any such enhancement should not result in an “overly oppressive and overloaded sentence”, given the already high starting point.

15.  As to mitigating factors, Ms. Wong recognized that the defendant’s age would not be regarded as one as such, but informed the court that his relatively young age was one of the reasons why he was not able to resist the temptation of making some quick money, especially when he had been laid off during the pandemic.  He was, at the same time, a user of cocaine and had been addicted for about 6 months before the offence.  Nevertheless, Ms. Wong confirmed that the defendant is not suggesting that any of the seized drugs were for his self-consumption, and he is not seeking a reduction in sentence on this basis.

16.  The defendant, his family members and friend all wrote in mitigation.  The defendant told the court that he has successfully overcome his drug addiction whilst in remand.  He regrets causing his family members so much pain.  He will be enrolling in courses to better himself, and hope to be able to reintegrate into society upon release.

17.  The defendant’s parents blame themselves for not spending enough time on guiding and supervising the defendant since they had to focus on their work.  They can see that their son deeply regrets what he had done, and are grateful to the social worker of SideBySide (善導會)  who has been helping the defendant to turn a new leaf.  

18.  The defendant’s three sisters each wrote to tell the court how their younger brother used to be a lively and well-behaved child who enjoyed helping others, recalling an incident when the defendant volunteered to help his mother with her cleaning job on his holiday and, when asked by his sister about the experience, burst into tears and said, “It’s really hard work for mom.” Their parents’ tough working schedules as cleaner and security guard meant they were not able to spend much time looking after their children.  They were also not very good at expressing their emotions, which might have contributed to the defendant’s rebellious adolescence, thinking that he was not loved and feeling neglected.

19.  Their brother’s good nature and sensitive personality also caused him to be easily influenced by others.  He sought recognition from his peers, which led him to stray from the right path.  Since his remand, they have seen positive changes in him and they all seek leniency on his behalf, promising the court that they will fully support his rehabilitation upon serving his sentence.  

20.  The defendant’s brother in law, aunt, paternal grandmother and friend all wrote and speak to the positive personal qualities of the defendant, which have all been mentioned in the sisters’ letters and I will not repeat them.  

SENTENCING

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

22.  The sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and HKSAR v Huang Ruifang [2025] HKCA 234, are applied as follows.  

Step 1: The applicable guideline tariff bands

23.  For the 26.35g of cocaine and 79.9g of ice, the applicable guideline tariff bands are, respectively, “5 to 8 years”, and “11 to 15 years”.

Step 2: The defendant’s role and culpability

24.  The defendant had taken up the role of the storekeeper and courier, with the added culpability of engaging in the packaging and direct retailing of the drugs to end users.

Step 3: The relevant band within the guidelines

25.  The corresponding arithmetical notional starting points for the cocaine and ice are, respectively, 6 years 2 months, and 11 years 2 months, without enhancing for the packaging and direct retailing yet.

26.  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.  I have applied the absurdity, conversion and ratio tests as used in HKSAR v Chan Yuk Leong CACC 318/2013 to assist me in arriving at the correct starting point.  

ABSURDITY TEST

27.  On the basis of all 106.25g of narcotics were the more potent drug of ice, any combined starting point, without having taken into account any aggravating factors, of 11 years 7 months or more would be regarded as absurdly high.

CONVERSION TEST

28.  If the cocaine is converted into ice that would yield the equivalent sentence, the total converted quantity of ice would be 87.97g, which would have a notional starting point of 11 years 3 months.

RATIO TEST

29.  Based on the proportion of the two drugs involved, the sentence should be about 11 years 1 month.

THE COMBINED NOTIONAL STARTING POINT

30.  Having regard to the above test results, taking into consideration the defendant’s role, with the higher culpability from his engagement in the packaging and as the end retailer, I will adopt a combined starting point of 11 years 9 months’ imprisonment.

Step 4: Aggravating factors

31.  The defendant trafficked in 2 different types of drugs and it is trite law that trafficking in more than one variety of dangerous drugs is an aggravating factor, because the trafficker will be able to cater to a wider market[2]. Given the quantity involved, I will enhance the sentence by 3 months, taking the combined starting point to 12 years.

Step 5: Mitigating factors

32.  Despite the good words the defendant’s family and friend all have for him, in cases as serious as the present one, the willingness to help others, and being a good son, sibling, grandson and friend become irrelevant as mitigating factors.  

33.  The only relevant mitigating factor is the defendant’s timely guilty plea, for which he will be given the full one-third discount.  

Step 6: Totality

34.  Taking a step back, I find the sentence fair, just and balanced.

FINAL SENTENCE

35.  The final sentence is, therefore, 8 years’ imprisonment after plea.