HKSAR v. YUEN HO SUM

HCCC 254/2024

[2025] HKCFI 1958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 254 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 counts of trafficking in a dangerous drug[1] before Magistrate Mr. Jeffrey Sze and was committed, on 5^th August 2024, to the Court of First Instance for sentence. He confirmed his pleas and admission to the Summary of Facts before me, and his convictions were duly recorded.

2.  Particulars of count 1 are that, the defendant on 11^th June, 2021, outside Hung Cheong House, Hung Fuk Estate, No. 1 Hung Yuen Road, Hung Shui Kiu, Yuen Long, New Territories, unlawfully trafficked in a dangerous drug, namely 246 grammes of a solid containing 211 grammes of ketamine.

3.  Particulars of count 2 are that he on the same day, at Room 1528, Hung Cheong House, Hung Fuk Estate, No. 1 Hung Yuen Road, Hung Shui Kiu, Yuen Long, New Territories, unlawfully trafficked in a dangerous drug, namely 1,121 grammes of a solid containing 973 grammes of ketamine.

FACTS

4.  The defendant was intercepted by police officers when he was walking out of the lobby of Hung Cheong House at around 7:59pm on 11^th June 2021, holding a black clutch bag.  Upon search, a re-sealable plastic bag containing 246g of a solid containing 211g of ketamine was found inside.  The defendant was arrested and said under caution that he planned to sell the ketamine to others.  

5.  The defendant was then taken to his residence at Room 1528 where a search warrant was executed.  Upon search, a red plastic bag was found in a cabinet of a wardrobe in the living room, which contained 5 plastic bags with a total of 1,121g of a solid containing 973g of ketamine.

6.  The defendant claimed in the subsequent cautioned video recorded interview that the drugs found in the wardrobe were for trafficking purpose.  He bought the ketamine himself, planning to sell them in the Shek Kip Mei area.  The number ‘250’ written on the packages refer to their weight of 250g.  He would make a profit of about $800 per transaction.

7.  The estimated street value of all the drugs in both charges is about $776,456.

8.  By his admission to the Summary of Facts, the defendant had accepted that, at all material times, he possessed the seized dangerous drugs for the purpose of trafficking.  

PREVIOUS CONVICTION

9.  The defendant has two previous convictions.  The first was for selling goods with a forged trademark in 2018, and is a spent conviction.  His next and last conviction was for rape, when he was sentenced to 9 years’ imprisonment on 21^st September 2022.  

10.  I am told that the defendant has been in custody for the present case since 13^th June 2021.  He was arrested for the rape case in May 2019.  Therefore, the defendant had committed the present offence whilst being investigated and on court bail for the rape case pending trial.  

BACKGROUND AND MITIGATION

11.  The defendant is 24.  He was working as a part-time lifeguard earning around $20,000 per month.  The defendant was living with his 40-year old mother and his 18 year old younger brother before his remand.  The defendant’s parents divorced in 2020 and the father had not kept in touch since.  

12.  Mr. Paul Leung, counsel for the defendant, told the court that it was an acquaintance of the defendant, ‘Ah Yin’, who suggested to the defendant that he should traffic in ketamine.  The defendant would keep the drugs at his home and deliver to buyers on Ah Yin’s instructions.  Ah Yin will also be responsible for supplying the defendant with the drugs and settling the selling price of the drugs in advance.

13.  Ah Yin promised a reward of $800 per transaction.  The defendant was supposed to hand over the money paid by the buyers to Ah Yin later on.  

14.  The defendant agreed to the deal and received drugs from Ah Yin.  He kept the drugs in his home and awaited delivery instructions.  On the day of his arrest, the defendant was on his way to make such a delivery.  

15.  Mr. Leung says that the defendant had since been unable to contact Ah Yin, and he had not been paid any money.

16.  Mr. Leung summarized the letters written by the defendant, his mother and former teacher as follows.  The defendant’s mother and teacher speak to the defendant as a kindhearted, sincere and hardworking youngster, who had been led astray by bad peers.  They believe the defendant had learned a bitter lesson, and will continue to support him in his rehabilitation.  

17.  The defendant wrote and told the court that he had been making good use of his time in custody such as taking up Bible studies.  He feels guilty for making his mother worry about him.  The defendant plans to study accountancy while serving his sentence and hope to enrich himself and be better equipped when he rejoins society.

SENTENCING

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

19.  Although the drugs were found from two locations, which led to the prosecution laying two charges, given the fact that it is obvious that the defendant’s possession of the drugs in the clutch bag and the drugs in his home are connected, the starting point will be decided based on the combined quantity of drugs found[2].

APPLYING HERRY JANE YUSUPH

20.  The guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[3], as read in conjunction with HKSAR v Lee Ming Ho[4] are applied as follows.

Step 1: The applicable guideline tariff bands

21.  The sentencing guidelines for trafficking in ketamine as laid down in the cases of Secretary for Justice v Hii Siew-cheng (許守城)  [2009] 1 HKLRD 1 and HKSAR v Sin Chung-kin (單松健)  [2013] 1 HKLRD 622 are applied.

22.  For the 211g and 973g of ketamine in count 1 and 2, the applicable bands are “6 to 9 years ” and “12 to 14 years” respectively.  

23.  For the combined quantity of 1,184g, the guideline tariff band is “14 to 18 years”.

Step 2: The defendant’s role and culpability

24.  Based on the Summary of Facts, it is a reasonable inference that the defendant might not have been directly trafficking the drugs, but merely delivering them as instructed.  The defendant is to be sentenced on the factual basis that is more advantageous to him, which is that of a courier and storekeeper.

Step 3: The relevant band within the guidelines

25.  Based on my finding of the defendant’s role and culpability, the individual starting points for the drugs in the two counts are, respectively, 7 years 11 months, and 13 years 10 months.  

26.  The combined global starting point would be 14 years 8 months’ imprisonment.

Step 4: Aggravating factors

27.  For the aggravating factor of committing a serious crime while being on bail for another serious crime, I will not enhance the defendant’s sentence at this point, and will leave it to when I consider the application of the totality principle regarding this and the rape sentence to avoid the defendant being doubly punished.

Step 5: Mitigating factors

28.  The only mitigating factor is the defendant’s timely guilty pleas, for which he will be granted the usual one-third discount.  

Step 6: Totality in relation to the trafficking sentence

29.  I have looked at the combined notional sentence after trial, and I am of the view that it is a fair, just and balanced sentence in the circumstances.  

30.  The global sentence for the two counts after plea is, therefore, 9 years and 9 months’ imprisonment.  

31.  To achieve this sentence, in relation to count 1, I sentence the defendant to 63 months after plea, in relation to count 2, to 110 months after plea.  I order 7 months of the sentence in count 1 to be served consecutively to the 110 months sentence in count 2, the balance concurrently, leading to the final sentence of 9 years 9 months’ imprisonment.  

TOTALITY IN RELATION TO THE RAPE SENTENCE

32.  I will now turn to consider the principle of totality with reference to the 9 year sentence for the rape.

33.  The defendant was the second defendant in the rape case HCCC 183/2021.  He was 18 when he committed the rape.  He was convicted unanimously by the jury after trial and was sentenced on 21^st September 2022, when he was 21.  

34.  The facts were that, in the early hours of 16^th April 2019, the defendant and the co-defendant met up with the victim, a 14-year old girl, and her boyfriend for drinks at a friend’s home.  The victim had never met the defendants before.  The victim became very drunk and had to be carried home.  When they were there, the boyfriend was sent out to buy some more drinks.  In the 8 minutes that the boyfriend was out of the victim’s home, the defendants took turn to rape the victim.  The defendant was arrested about 1 month after the rape, in May 2019.

35.  According to the Reasons for Sentence, the victim suffered long lasting psychological damage and the learned trial judge did not see any remorse in the defendants, which contributed to her imposing the robust sentence, together with the victim’s young age and the fact that the rape took place in her own home.

36.  The defendant applied for leave to appeal against his conviction, which was refused on 23^rd April 2024.  

37.  A useful test to apply when considering whether sentences should be made consecutive or concurrent is found in the case of Secretary for Justice v Brian Alfred Hall CAAR 1/2012, where the respondent was convicted and sentenced for 3 offences of doing acts tending to pervert the course of public justice, and one of using copies of instruments which were or which he knew or believed to be false.  Although the 4 offences were tried on the same occasion, they each took place at different times and under different circumstances, arising out of 4 separate cases, which required the court to consider the question of totality.  The Court of Appeal found that the trial judge had erred:

“46. Second, the judge did not, in our respectful opinion, correctly approach the question of totality. The offences were not intermingled one with the other, each as part of a single design as in Tai Chin Wah. To the contrary, each was separate in time and objective; and it is clear beyond peradventure that each added to the culpability of the other. That is the key test and whatever individual sentence was warranted for each charge, that sentence ought in principle to have run consecutively to the sentences on each of the other offences, subject only to an assessment of the appropriate totality and to the maximum sentencing jurisdiction of the District Court.”[5] (my emphasis)

38.  In relation to totality, the Court of Appeal stated the following in the case of HKSAR v Ngai Yiu Ching, CACC 107/2011:

“22. The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment but it is also a tool by which to ensure that ‘the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.’: R v K M [2004] NSWCCA 65 at paragraph 55.”

39.  I turn to the present case.  The rape and the drug trafficking that the defendant had committed are totally unconnected crimes, and are of entirely different nature with different victims.  The offences were committed at different times, being 2 years and 1 month apart.  The defendant committed the trafficking whilst on bail pending trial for the rape case.

40.  It is obvious that the rape and the trafficking are separate in time and objective, and each added to the culpability of the other, and the sentences ought in principle to run consecutively to each other, subject to the application of the principle of totality.

41.  Having taken a step back and consider the possibly crushing effect of an entirely consecutive sentence that would have on the defendant, but at the same time mindful of the distinct and very serious criminal acts that the defendant had chosen to commit on two separate occasions, I find that I should order 8 years of the sentence in the present case to run consecutively to the sentence in the rape case, the balance concurrently, resulting in an overall sentence of 17 years’ imprisonment for the two cases.  This is a sentence that would properly reflect the defendant’s overall culpability in both cases.