In Charge 1, D1, you admitted that on 19 January 2021, at Unit G, 5th Floor, Good Harvest Centre, 33 On Chuen Street, Fanling, you attempted to unlawfully traffic in 18.94 kilogrammes of a powder containing 16.23 kilogrammes of ketamine.
D2, you admitted that on 19 January 2021, at Glee Path, Mei Foo Sun Chuen, Mei Foo, you attempted to unlawfully traffic in 9.43 kilogrammes of a powder containing 8.01 kilogrammes of ketamine.
I turn now to the facts of this case. The Summary of Facts dated 19 June 2023 was admitted by both defendants as correct and are facts in support of the charges. On 16 January 2021, an inbound consignment from the Netherlands declared to contain milk powder was selected by the Customs for inspection at the Hong Kong International Airport. Upon examination, the consignment was found to consist of 49 carton boxes of milk powder. Among those 49 carton boxes, four of the boxes with the markings “L10”, “L11”, “L30” and “L49” were found to contain a total of 18.94 kilogrammes of a powder containing 16.23 kilogrammes of ketamine.
Each of those four carton boxes contained 12 foil packets, eight of which were found to contain ketamine, whereas the remaining four foil packets were found to contain genuine milk. The consignment was destined to go to Union Profit Trading Limited, whom I refer to as “Union Profit”, at an address, Unit I, 3rd Floor, Good Harvest Centre at 33 On Chuen Street, Fanling. This address was found to be occupied by a logistics company named Tannet Group Limited. The four carton boxes with the ketamine were replaced by bags of sand by the Customs, and these were referred to as “the dummy boxes”.
On 19 January 2021, with the assistance of the warehouse supervisor of Tannet Group, a Ms Ng, a controlled delivery operation was conducted with the use of these four dummy boxes together with the original 45 boxes containing milk powder.
At about 2.15 pm on 19 January 2021, the 1st defendant showed up at the Union Profit’s address. He presented an authorisation letter to Ms Ng for collection of the consignment. Upon inquiry by a Customs officer, who was of course undercover, D1 produced his Hong Kong ID card for verification. D1 confirmed that he intended to take away only four out of the 49 carton boxes of the consignment. That is specifically those boxes L10, L11, L30 and L49. D1, as requested, also wrote down the carton numbers of the carton boxes that he intended to take away, and the vehicle registration number of his van, on the authorisation letter.
D1 then paid $1,740 for the storage cost of the consignment.
Afterwards, D1 was led to the warehouse of Tannet Group at Harvest Centre where he unwrapped the consignment himself. He identified the four dummy boxes out of the 49 carton boxes and took them away. He loaded the four dummy boxes into the boot of his van and left.
Customs officers immediately tailed after the van until it finally stopped outside the roadside of Glee Path, Mei Foo Sun Chuen, Mei Foo. Customs officers observed D1 taking out two of the dummy boxes marked “L10” and “L11” from the boot of the van. These two dummy boxes were immediately collected by D2. The duo then parted their separate ways.
D1 drove off in the van and soon stopped outside the carpark of Mei Foo Sun Chuen. At about 3.15 pm, Customs officers revealed their identities and intercepted D1 thereat for inquiry and search. The two dummy boxes with the markings “L30” and “L49” were found in the boot of the van. D1 was arrested and cautioned. At the time of arrest, D1 had two mobile phones and cash of $770 on his person.
After D2 had collected the two dummy boxes, L10 and L11, from D1, he put them on a pallet trolley and pushed them to a market in Glee Path. He was tailed by Customs officers and intercepted thereat. Customs officers revealed their identities to D2. However, he attempted to flee but was subdued at the scene. D2 was arrested and cautioned. At the time of arrest, D2 had one mobile phone on his person.
The dummy boxes L10 and L11 were found to contain 9.43 kilogrammes of a powder containing 8.01 kilogrammes of ketamine, of which the estimated street value was about $6,346,390.
This was the subject of Charge 2.
In respect of Charge 1, that included the four dummy boxes, and the total estimated street value of all the ketamine seized was $12,746,620.
So this was the subject of Charge 1 to which D1 is charged with. D2 is charged with the subject drugs of the two carton boxes in Charge 2.
Under caution, D1 stated, amongst others, that he helped a friend known as “Ah Hin” to collect and deliver the four carton boxes in question, and he would receive a reward of $3,000 upon delivery. The remaining two carton boxes in the van would be delivered to Ah Hin at Harbourview Horizon in Hunghom. He agreed to assist Customs officers to deliver the remaining two carton boxes to Ah Hin.
Between 6.05 and 7 pm on that same day, the 1st defendant assisted in the controlled delivery operation to deliver the two remaining dummy boxes in his van to Ah Hin at Harbourview Horizon. However, no one showed up at the proposed location and the operation was called off.
Upon checking with the call records of the contact numbers of D1, D2 and Ah Hin, it was found that there were four calls made between D1 and D2 an hour before the arrest, and 24 calls made between D1 and Ah Hin on 12th, 18th and 19th, 2021.
I turn now to the mitigation of both D1 and D2 and their background. Firstly, I shall turn to D1’s mitigation. In two written submissions, D1’s counsel, Ms Vivien Chan, stated D1 was born in Hong Kong. He is now aged 34, single and educated up to secondary level 3. He had worked as an air-conditioner apprentice, delivery worker, fishmonger, warehouse keeper and bartender. He is not a drug addict. His father passed away in 2020 due to liver cancer. His mother, aged 65, is a dishwashing worker. After being discharged from prison in early 2020, D1 found his father was suffering from stage 3 liver cancer. He had borrowed about $140,000 to pay for his father’s special target therapies. Being chased for repayment and out of greed and foolishness, he agreed to deal in drugs to earn quick money, hoping to repay this debt as soon as possible. Unfortunately, his father passed away in October 2020.
The defendant has written a letter in mitigation, to which he sees the need to reform and become a useful person, and he feels very guilty towards his parents. D1’s 65-year-old mother has also written a letter, supporting D1’s account and reason for incurring the debt to assist in her husband’s medical expenses. She explains that D1’s actions were as a result of desperation and financial difficulties. She asked this court to show mercy to her son.
D1 has also submitted a mitigating letter from Father John Wotherspoon, dated 11 December 2024, with enclosures. He has assisted to publicise his story to warn the unsuspecting young people caught up in drug dealing. He humbly pleads for an appropriate discount in view of his participation in Father John’s campaign.
Ms Chan, for D1, says he was very co-operative upon his arrest and assisted in the controlled delivery, although no one was apprehended, and in those circumstances warrants an appropriate discount. He also provided an NPS in August and November 2023, however, acknowledges there was no constructive assistance up to date. As to D1’s previous convictions: D1 has 11 previous convictions. One related to drugs which was for possession of dangerous drugs.
I turn now to the background and mitigation for D2. Ms Susanna Ku, counsel for D2, has submitted two written submissions in mitigation. D2 is now 28 years old and was 24 years old at the time of the offence. He is the only son of the family. Unfortunately, his mother divorced his father since his birth. He has lived with his mother and maintained close contact with his father. He is educated to, but not completed, secondary Form 2. He started to work at the age of 15 years of age. He worked as an air-conditioning apprentice, worked in a fast food shop and transportation worker. Although he was in employment, he committed the present offence as he ran into financial difficulties. Ms Ku reflects his plea of guilty at the earliest opportunity and the fact that D gave two NPSs in February 2023 and 31 May 2023. In them, he implicated D1 with a view to assist the prosecution.
Whilst on remand, I am informed by Ms Ku that he had studied religious courses and courses offered by the Hong Kong Metropolitan University, with a view to equip himself and turn a new leaf after his discharge from prison. The certificates of these course have been produced. He is continuing to study more courses. He has also registered to donate his organs with a view to return what he has to the society in due course.
D2 has two previous convictions, the last conviction in 2017, to which he was sentenced to a similar offence of trafficking in dangerous drugs in the District Court to a term of 4 years’ imprisonment.
I turn now to deal with sentence. The sentence approach to sentencing in drug-trafficking cases are now laid down in the following five cases. The Court of Appeal recently revised guidelines for trafficking in heroin, cocaine and ‘Ice’ in Huang Ruifang or Wong Shui Fong as said in Cantonese, in that tariff bands for large quantities of the three most serious and potent dangerous drugs in Hong Kong were effectively lowered.
The five cases are as follows: HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Lee Ming Ho [2024] HKCA 150, HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, HKSAR v Sum Ka Wa [2024] 4 HKLRD 777, and in the most recent case of HKSAR v Huang Ruifang [2025] HKCA 234 where the Court of Appeal revised the sentencing guidelines in Heroin, cocaine and ‘Ice’, to be effective immediately, as from the date of judgment of 5 March 2025.
I turn first to deal with D1’s sentence and the application of the principles and the steps as referred to in the cases I have mentioned above. Firstly, the first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. The tariff case for the drug ‘Ecstasy’ and ketamine is set out in the authority of Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1. Defendant trafficked in 16.23 kilogrammes of ketamine. Pursuant to the tariff, this amount falls in the band of over 1,000 grammes where the starting point is 14 years and above.
In dealing with large quantities over 1,000 grammes, I turn to the case of Sin Chung Kin, CACC 458/2011, where the Court of Appeal said at paragraphs 27 and 28 as follows. Paragraph 27 states:
“The longest sentence in the guidelines laid down in Hii Siew Cheng is 14 years’ imprisonment for trafficking in 1,000 grammes of ketamine. However, if one follows the rate of enhancement of sentences as is apparent from Lau Tak Ming and Ching Kwok Hung, then for trafficking in 2,000 and 3,000 grammes of ketamine (which, respectively, doubles and triples the 1,000 grammes which attracts 14 years’ imprisonment), the appropriate starting points should respectively be no less than 18 years and 20 years.”
Paragraph 28:
“Taking one step further, if more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity. The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case.”
In the case of Sin Chung Kin, the ketamine trafficked amounted to a total of 5.12 kilogrammes of ketamine and 5.18 grammes of cocaine where the Court of Appeal held that the starting point adopted by the trial judge of 22 years was not manifestly excessive.
In HKSAR v Chan Ka Yiu & Others [2008] 4 HKC 591, the Court of Appeal declined to issue guidelines for trafficking in quantities greater than 1 kilogramme of ketamine narcotic and said that sentencing courts should continue to adopt the approach in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627. That is the same case I mentioned earlier. Paragraph 48.
In the case of HKSAR v Lau Fun [2024] HKCA 254, Macrae VP, on 14 March 2024 in an application for leave to appeal against conviction and eventually sentence, said in an obiter dicta about the sentence of 25 years imposed for 18.73 kilogrammes of ketamine at paragraph 47 as follows. He said:
“I do not know how the judge arrived at 25 years’ imprisonment after trial, which may or may not be on the high side, given the applicant’s role and culpability as the person who was simply to collect the consignment and hand it over to someone else. There seems to be a suggestion the judge may have been influenced by the ‘international element’ of the goods arriving from France. Whether that is correct or not will be made clear by ordering a transcript of mitigation and sentence; accordingly, I make that order.”
It is clear to this court that leave to appeal against sentence out of time was granted by the Court of Appeal.
The sentence here in the present case first came up before this court on 28 June 2024. That was approximately three months after Macrae VP granted leave. Both prosecuting and defence counsels in this case agreed to adjourn the present case until the sentence in Lau Fun was dealt with by the Court of Appeal as it dealt with large quantities of ketamine. It appears that this case has not been heard yet, and it is likely that in view of the date set down for hearing, the Court of Appeal’s judgment may only be ready a year from today at the earliest, that is, approximately June 2026.
Ms Vivien Chan, counsel for D1, and Ms Susanna Ku, counsel for D2, have requested that the sentence today be adjourned, even if it is for another year, until the Court of Appeal hands down their judgment in Lau Fun’s case, as the court there will be dealing with sentencing in large amounts of ketamine, and that will be of assistance in this case.
Having given anxious consideration to the issue of whether to adjourn this case further, I am of the view that it will be too long to wait to sentence the defendants. The defendants were arrested in January 2021. It is now about four and a half years since their date of arrest. It is almost two years since they first pleaded guilty. In the circumstances, I have decided to sentence the defendants today.
And following the Court of Appeal in Chan Ka Yiu, for trafficking in quantities greater than 1 kilogramme of ketamine, the court should continue to adopt the approach set out in Sin Chung Kin for sentencing. I particularly note that in Sin Chung Kin that the increase in sentence should not be proportional to the increase in the drug quantity. And I also observe the observations made by Macrae VP in Lau Fun. Given the amount of drugs involved here in Charge 1 of 16.23 kilogrammes of ketamine, I consider a sentence of 24 years after trial to be appropriate.
The second step is to assess the role and culpability of D1 based on the evidence. D1 denied any involvement or knowledge, in the present case, of the drugs being imported from overseas. He said he was merely to collect the subject carton boxes at a local warehouse and to deliver the same to Mei Foo and Hunghom. There was no evidence that he knew the consignment came from the Netherlands, and in the circumstances, I do not consider there is an international element involved in this case. Given the facts of this case, therefore, he was a courier at the lowest rank in the hierarchy.
The third step is to identify where in the relevant band the defendant comes. Taking into account this third band and what I have said earlier, the appropriate starting point should remain at 24 years’ imprisonment.
The fourth step is a consideration of any aggravating factors, and in the 1st defendant’s case, I can see no aggravating factors.
The fifth step is to consider all mitigating factors, bearing in mind that in this particular branch of sentencing, personal circumstances would generally count for little. D1 has contributed to Father John Wotherspoon’s website, Voice for Prisoners, by writing a letter in Chinese and translated in English for publication on 27 August 2024. The letter in mitigation from Father John, together with its enclosures, have been produced. D1 asks this court to exercise its discretion in D1’s favour after assessing the nature and scope of his contribution in the above anti-trafficking campaign so as to warrant a discount.
In HKSAR v Castillo Caicedo Teresa, CACC 212/2017, the Court of Appeal made clear at paragraph 44 by stating as follows:
“As the sentencing principles now stand, it is not automatic that a defendant’s participation in Father Wotherspoon’s campaign will result in the ‘token discount’ of up to 3 months as provided by Kilima Abubakar Abbas. As stated by this court in HKSAR v Herry Jane Yusuph, it needs to be assessed ‘realistically and with common sense’ as to whether the defendant has made a meaningful contribution to the campaign. However, this needs to be further assessed by the recent observations of this court in HKSAR v Cherop Caroline, unreported, CACC 321/2018, on 2 August 2021.”
Cherop Caroline is now reported in [2021] 3 HKLRD 904. The observations by the Court of Appeal that whilst a token discount may still be given for assistance in the campaign, judges should not rely on hearsay, anecdote and mere assertions of usefulness but must look at the letters properly produced that have been written by the defendant or applicant, and consider their substance as well as when and how they had been written, if they were properly to act on them in the exercise of their discretion. HKSAR v Kilima Abubakar Abbas applied.
D1’s letter tells of how he from Form 1 took to drinking and smoking and soon lost interest in school in Form 3, then dropped out of school in Form 4. He started to take drugs and even though he was convicted of possession of dangerous drugs and sentenced to probation, he continued to take drugs. He then mixed with bad peers and committed “a”, that meaning a single burglary.
D1 on that occasion was convicted of five burglaries, not one. This was wholly inaccurate which attempted to paint the defendant in a different light. He then accounted to borrowing money to pay for his father’s medical expenses. Although he knew it was illegal to traffic in dangerous drugs, but because he was in financial difficulties in repaying the debt, he committed this offence. As a result of his incarceration, he could not attend his father’s funeral.
The whole purpose of this participation in Father John’s campaign is to tell the world of the sad effects of the defendant’s detention it has on his family, his remorse, and to stop others from committing the offence of trafficking in dangerous drugs. Although this may inform the public of the dire consequences of committing the offence of trafficking in dangerous drugs, these are consequences of many offences which are punishable by imprisonment and is common knowledge to all.
Sadly and unfortunately, many defendants commit the crime of drug trafficking because of financial difficulties and greed. In this case, D1 even admitted in the letter he did commit this offence, knowing it was illegal and this is also despite the fact that D1 himself had been sentenced to imprisonment for an offence of handling stolen goods in 2019 to 6 months.
The letter written on Father John’s website is similar to many letters the courts receive from the defendants who are convicted of trafficking or even some other offences.
Further, I place no weight whatsoever on this letter as it attempts to play down D1’s role in his burglary, which is an inaccurate account of D1’s background. In any event, on the facts of this case, I do not consider that the defendant’s letter has made a meaningful contribution to the campaign. For these reasons, I do not consider D1’s participation in Father John’s campaign to be a factor that warrants any further discount.
When D1 was arrested at Mei Foo, he informed the police that he was to deliver the remaining two cartons in a van to Ah Hin at Hunghom. He assisted the Customs officer in a controlled delivery to Hunghom, but no one showed up. In Jardin Rodela Maningas, CACC 278/2011, where the applicant assisted Customs in a controlled delivery and no one appeared, Stock VP (as he then was) stated at paragraph 16:
“It is important as a matter of principle to encourage arrested persons to assist in this way and in this case there was no empty offer of assistance but a practical engagement in the exercise, the failure of which did not in any way lie at the door of the applicant.”
I am of the view that the applicant should be given a discount. I will give him some credit in his preparedness to assist in securing the apprehension of a person to whom the drugs were to be delivered.
The most significant mitigating factor is the defendant’s plea of guilty at the earliest opportunity, of which he will benefit from a one-third discount to his sentence. I consider that a total discount of about 39 per cent should be applied which includes D1’s assistance in the controlled delivery.
D1, the starting point of 24 years’ imprisonment, discounted by approximately 39 per cent, results in a sentence of 14 years and 6 months’ imprisonment which you, D1, shall serve.
The sixth step is to observe the overall sentence passed to ensure that it was fair, just and balanced in all the circumstances of the offence and the offender, and this I do.
I turn now to the 2nd defendant’s sentence. I adopt the same principles and steps as I have taken with D1. The first step is to assess the gravity of the offence and identify the relevant guideline band applicable to the quantity of drugs concerned. The tariff case for the drug ketamine is set out in the authority of The Secretary for Justice v Hii Siew Cheng and Sin Chung Kin referred to above. The amount of ketamine trafficked by D2 was 8.01 kilogrammes. Pursuant to the tariff, that amount falls over the band of 1,000 grammes and, as stated by the Court of Appeal, the authority of Sin Chung Kin should be followed.
As I stated in Sin Chung Kin, the total ketamine in that case was 5.12 kilogrammes plus 5.18 grammes of cocaine, and the Court of Appeal there held that a starting point of 22 years was not excessive. Therefore, taking into account Sin Chung Kin, I consider that an appropriate starting point should be 22 years’ imprisonment.
The second step is to assess the role and culpability of the defendant. Based on the evidence, D2’s role was that of just a storekeeper or courier, as Ms Ku has stated. He was there to collect the drugs from D1. Although the drugs were imported from the Netherlands, I accept there is no evidence that D2 had any knowledge of this, and therefore there is no international element involved in D2’s case.
The third step is to consider and identify where in the relevant band the defendant comes. Given his role, I consider still that a starting point should remain at 22 years’ imprisonment.
The fourth step is a consideration of any aggravating factors. The defendant has two previous criminal convictions, and one of which is a similar criminal record and his last record was in 2017, to which he was sentenced to 4 years’ imprisonment for trafficking in dangerous drugs. This is a similar offence to which he has committed and committed within a short time after his release from prison.
I consider this to be an aggravating factor which calls for an enhancement, and I enhance the sentence by 1 month.
The fifth step is to consider all mitigating factors, again bearing in mind that in this particular branch of sentencing, personal circumstances generally account for little. There is nothing in the defendant’s personal circumstances which should reduce the sentence any further.
The most significant mitigating factor in this case is the defendant’s plea of guilty at the earliest opportunity, and he will benefit from a one-third discount to his sentence.
I turn now to his assistance to authorities. Ms Ku, counsel for D2, submits that D2 should be given more than a one-third discount as it is her submission that D1 changed his plea of not guilty to guilty because of the assistance D2 had offered to the prosecution by willing to give evidence against D1. Ms Ku submits that it was not until after D2’s NPSs were served on D1 did D1 indicate his intention to change his plea from not guilty to guilty.
Ms Ku has drawn the court’s attention to the chronology of events that when D2 indicated his guilty plea, D1 maintained his not-guilty plea. When D2 pleaded guilty before the magistrate, he indicated he was willing to offer assistance to the prosecution. D1 still did not enter a plea of guilty in the next few committal hearings. D2 asked but the magistrate refuse to commit the case to the Court of First Instance. After D2’s two NPSs were served on D1, D1 eventually indicated he would plead guilty on 15 June 2023.
I accept that the prospect of D2 being called as a prosecution witness against D1 may have influenced D1’s pleading guilty. However, it is clear that D2 would have assisted the prosecution in giving evidence against D1 had D1 pleaded not guilty. In those circumstances, as set out in Z v HKSAR, I accept that D2 is entitled to a 40 per cent discount.
Defendant 2, the notional starting point is one of 22 years and 1 month’s imprisonment. Giving you the 40 per cent discount, the resulting sentence amounts to 13 years and 3 months’ imprisonment.
The sixth step is to observe the overall sentence passed, and I am satisfied that it is fair, just and balanced in all the circumstances of this offence and the defendant.