HKSAR v. SIN CHING HO AND ANOTHER

HCCC 343/2024

[2025] HKCFI 3590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 343 OF 2024

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REASONS FOR SENTENCE

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1.  The 1^st and 2^nd defendants pleaded guilty to the following charges and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 21 October 2024.

2.  The statement of offence and particulars of offence of the charges stated as follows:

(1)  Charge 1 (against the 1^st defendant), trafficking in a dangerous drug: On 9 July 2022, outside the entrance on 5^th floor of Tower 3B, Cullinan West, No. 28 Sham Mong Road, Sham Shui Po, Kowloon, in Hong Kong, the 1^st defendant unlawfully trafficked in a dangerous drug, namely 11.84 grammes of a solid containing 10.51 grammes of cocaine.

(2)  Charge 2 (against the 1^st and 2^nd defendants), trafficking in dangerous drugs: On 9 July 2022, at Room G, 19^th floor of Tower 3B, Cullinan West, No. 28 Sham Mong Road, Sham Shui Po, Kowloon, in Hong Kong, the 1^st and 2^nd defendants unlawfully trafficked in dangerous drugs, namely 472.64 grammes of a solid containing 371.32 grammes of cocaine, 1.06 kilogrammes of a solid containing 70.7 grammes of cocaine hydrochloride and 150 grammes of cocaine, and 0.03 gramme of a solid containing cocaine and ketamine.

(3)  Charge 3 (against the 2^nd defendant), manufacturing a dangerous drug: On 9 July 2022, at Room G, 19^th floor of Tower 3B, Cullinan West, No. 28 Sham Mong Road, Sham Shui Po, Kowloon, in Hong Kong, the 2^nd defendant unlawfully manufactured a dangerous drug, namely cocaine.

3.  The case was then committed to the Court of First Instance for sentence.  Before this court, both the 1^st defendant and the 2^nd defendant had confirmed their plea and their agreement to the Summary of Facts through counsel. 

4.  The Summary of Facts admitted by the defendants provide as follows, and I shall quote those facts in full. 

5.  On 9 July 2022, Customs and Excise (“C&E”)  officers conducted an anti-narcotics operation in Sham Shui Po, Kowloon.  By around 7.20 pm, the 1^st defendant was seen wandering around Fu Cheong Estate in Sham Shui Po.  The 1^st defendant then entered Tower 3B of Cullinan West, 28 Sham Mong Road, Sham Shui Po (“Tower 3B”).  By around 10.28 pm, the 1^st defendant walked out from 5^th floor of Tower 3B to a podium.  He was intercepted by C&E officers outside the entrance on 5^th floor of Tower 3B.  At that time, he was holding a plastic bag (Exhibit 1)  in his left hand.  Inside the bag there were:

(1)  A kitchen paper towel (Exhibit 2)  wrapping five small transparent resealable plastic bags (Exhibit 3)  containing a total of 1.27 grammes solid containing 1.04 grammes cocaine (Exhibit 4); and

(2)  A large transparent resealable plastic bag (Exhibit 5), which contained 62 small transparent resealable plastic bags (Exhibit 6)  containing a total of 10.57 grammes of solid containing 9.47 grammes cocaine (Exhibit 7).

6.  Inside the bag, there was in total 11.84 grammes solid containing 10.51 grammes of cocaine.

7.  Upon arrest and under caution for contravening the Dangerous Drugs Ordinance (Cap 134), the 1^st defendant admitted that he knew the bags contained “coke”, which meant cocaine, and that he was the owner of the cocaine, which he obtained from Room G, 19^th floor of Tower 3B (“Room G”).

8.  By around 10.40 pm on 9 July 2022, C&E officers escorted the

1^st defendant to the area outside Room G. Using the passcode provided by the 1^st defendant, C&E officers opened the door lock to Room G and gained entry to Room G. Room G was a studio apartment. There was not any bed or household item inside Room G. Search of Room G found:

(1)  On the countertop of the open kitchen:

(a)  Two metal sieves with tissue papers (Exhibits 12 and 14)  containing a total of 461 grammes solid containing 361 grammes cocaine (Exhibits 13 and 15);

(b)  A recycle bag (Exhibit 20)  containing:

(i)  A transparent resealable plastic bag (Exhibit 21)  containing 1.06 kilogramme solid containing 70.7 grammes cocaine hydrochloride and 150 grammes cocaine (Exhibit 22); and

(ii)  A transparent resealable plastic bag containing 968 grammes solid containing phenacetin (Exhibits 23 and 24);

(c)  A metal pot (Exhibit 31)  containing 0.03 gramme solid containing cocaine (Exhibit 32);

(d)  An electronic scale (Exhibit 18)  containing 0.03 gramme solid containing cocaine and ketamine (Exhibit 19);

(e)  An electronic scale (Exhibit 29)  containing 0.02 gramme solid containing cocaine (Exhibit 30);

(f)  An electronic scale (Exhibit 27)  containing 0.01 gramme solid containing cocaine (Exhibit 28);

(g)  A pair of scissors (Exhibit 25)  containing traces of cocaine (Exhibit 26); and

(h)  A marker pen (Exhibit 41);

(2)  In the upper cabinet of the kitchen:

(a)  A large transparent resealable plastic bag (Exhibit 33)  containing 68 transparent resealable plastic bags (Exhibit 34)  containing a total of 11.47 grammes solid containing 10.25 grammes cocaine (Exhibit 35);

(b)  A plastic bag and a tinfoil bag, containing a total of 955 grammes solid containing phenacetin (Exhibits 36 and 37); and

(c)  A bundle of resealable plastic bags (Exhibit 38);

(3)  Inside a nylon bag placed on the floor next to the open kitchen:

(a)  A box (Exhibit 8)  containing 456 grammes solid containing sodium bicarbonate (commonly known as baking soda)  (Exhibit 9);

(b)  A metal pot and a metal tray (Exhibit 10)  containing a total of 0.11 gramme solid containing 0.07 gramme cocaine (Exhibit 11);

(c)  An impulse sealer (Exhibit 39); and

(d)  An electronic scale with battery installed (Exhibit 40); and

(4)  Next to the washing basin inside the toilet, a metal sieve, a metal spoon and a clay pot (Exhibits 42 to 44).

9.  Inside Room G there were in total:

(1)  472.64 grammes solid containing 371.32 grammes cocaine;

(2)  1.06 kilogrammes solid containing 70.7 grammes cocaine hydrochloride and 150 grammes cocaine; and

(3)  0.03 gramme solid containing cocaine and ketamine.

10.  In total, C&E officers seized from the 1^st defendant and inside Room G:

(1)  484.48 grammes solid containing 381.83 grammes cocaine;

(2)  1.06 kilogrammes solid containing 70.7 grammes cocaine hydrochloride and 150 grammes cocaine; and

(3)  0.03 gramme solid containing cocaine and ketamine.

11.  There were traces of phenacetin on the cooking stove of the kitchen inside Room G. 

12.  In July 2022, the average street value of cocaine was HK$1,025 per gramme, and that of ketamine was HK$574 per gramme.  Therefore, the total estimated street value of the drugs seized in the instant case was HK$1,583,115.98.

13.  Upon further caution inside Room G, the 1^st defendant revealed that:

(1)  Only the 1^st defendant and the 2^nd defendant had access to Room G;

(2)  The 1^st defendant knew that the substance in the kitchen was “coke”, but he did not know whom it belonged to. He delivered the substance to other people for a reward of $10,000-odd each time;

(3)  The tools inside Room G were for cooking by the 2^nd defendant.

14.  Upon arrest and under caution inside Room G for contravening the Dangerous Drugs Ordinance, the 2^nd defendant revealed that:

(1)  The 2^nd defendant knew that the substance on the table was illicit drug and it belonged to someone else;

(2)  After the 2^nd defendant had dried the substance, someone would collect it and give him $5,000 reward each time.

15.  C&E officer further seized:

(1)  From the 1^st defendant, a mobile phone with a SIM card installed (Exhibits 45 and 46);

(2)  From the 2^nd defendant, two mobile phones with SIM cards installed (Exhibits 47 to 51)  and an Octopus card (Exhibit 52); and

(3)  In the wardrobe in Room G, a tenancy agreement, which I am told by the prosecution at the hearing that it is not in the name of either the 1^st or the 2^nd defendant, and it ran from 6 June 2022 for a term of two years.

16.  As observed by the Forensic Scientist of the Government Laboratory who inspected Room G in the early hours on 10 July 2022:

(1)  Cocaine commonly existed in two chemical forms, one is the cocaine base form and the other is cocaine hydrochloride form (a salt of cocaine). Cocaine base can be made from cocaine hydrochloride through a conversion process to make it suitable for smoking. This process of making cocaine base from cocaine hydrochloride using an alkaline substance, such as sodium bicarbonate, offers the advantage of involving no organic solvents and hence has a lower risk of fire or explosion;

(2)  Cocaine hydrochloride and baking soda (sodium bicarbonate), in a suitable proportion, are mixed in a container, such as a bowl. Water is added to dissolve the mixture. Adulterants, such as phenacetin, can also be added into the mixture. The container with the dissolved mixture is then heated to speed up the chemical reaction between the baking soda and the cocaine hydrochloride. Subsequently cocaine base is produced and solidified after cooling the solution. The cocaine base so produced is in the form of lumps commonly known as “crack”. The cocaine crack is commonly dried before packaging;

(3)  Exhibit 21 was found to contain a mixture containing cocaine hydrochloride which could be a starting material for preparation of cocaine base (“crack”);

(4)  Exhibit 8 and the solid mixture in Exhibit 21 were found to contain sodium bicarbonate which could be used as an alkaline material for the preparation of cocaine base (“crack”);

(5)  The solids on Exhibit 12 and 14, in Exhibit 34 and the solid mixture in Exhibit 21 were found to contain cocaine base. The cocaine base could be the product of the aforementioned cocaine base manufacturing process;

(6)  Paraphernalia found at the scene including the metal pot with metal tray (Exhibit 10), the pair of scissors, (Exhibit 25)  and the pot (Exhibit 31)  were all found to contain cocaine. These findings suggest that those items could have been used in handling cocaine;

(7)  The three electronic scales (Exhibit 18, 27, and 29)  were found to contain traces of dangerous drugs or phenacetin. They could be used for weighing substances such as dangerous drug/chemicals;

(8)  The solids in Exhibit 36 and 37 were found to contain phenacetin. Phenacetin could be used as an adulterant in cocaine;

(9)  The solids found in the metal pot with metal tray (Exhibit 10), the two sieves with tissue papers (Exhibit 12 and 14), the pair of scissors (Exhibit 25), the two electronic scales (Exhibit 27 and 29)  and the pot (Exhibit 31)  were found to contain phenacetin as well as cocaine. These findings suggest that phenacetin could have been used as an adulterant in cocaine;

(10)  The cotton swab taken from the stove was found to contain a solid containing phenacetin. These findings indicated that the stove could have been associated with the “cracking” process, being used as a heating source;

(11)  Considered collectively, the chemicals and paraphernalia seized in Room G were items commonly associated in the process of making cocaine base (“crack”)  and that they could have been involved in making cocaine base in Room G. The manufacturing process of cocaine base could have taken place in Room G.

17.  On 9 July 2022:

(1)  The 1^st defendant possessed all the dangerous drugs seized by C&E officers in the plastic bag carried by him outside the entrance on 5^th floor of Tower B (ie Exhibits 4 and 7)  for the purpose of unlawful trafficking;

(2)  The 1^st and 2^nd defendants possessed all the dangerous drugs seized by C&E officers in Room G (ie Exhibits 11, 13, 15, 19, 22, 26, 28, 30, 32, and 35)  for the purpose of unlawful trafficking; and

(3)  The 2^nd defendant unlawfully manufactured cocaine in Room G.

18.  Regarding the personal background of the defendants, the 1^st defendant was born in Hong Kong and is now 19 years old.  He was 16 years and 11 months old at the time of his arrest in July 2022.  He received education up to Secondary 1 in Hong Kong and left school after unsuccessful repeats of his Secondary 2. 

19.  The 1^st defendant’s parents were separated since he was young, and he lived with his mother and his elder sister before his arrest.  The 1^st defendant is largely dependent on his mother, who works as a waitress in a restaurant. After turning 16 years old, the 1^st defendant found a short-term job as a general staff in a gym, between March 2022 and May 2022, earning around $10,000 per month.  He was soon laid off as there was simply too few visitors to the gym at which he was working. 

20.  The 1^st defendant became wholly dependent on his mother since May 2022.  After learning that the 1^st defendant was out of his job, his friend introduced him to a job which would offer him some “quick money”.  Unfortunately, the 1^st defendant then agreed to take up the work without giving much thought to his dire legal consequences. 

21.  The 2^nd defendant was born in Hong Kong in March 2001.  The 2^nd defendant is now 24 years of age.  He was 21 years old at the time of his arrest. 

22.  The 2^nd defendant has 10 previous convictions, with only one related to dangerous drugs.  It is for the offence of possession of dangerous drugs committed in 2021, for which he was sentenced to 2 months’ imprisonment, suspended for 24 months. 

23.  The 2^nd defendant received education up to Form 3 level in Hong Kong.  He obtained a scholarship for his participation in the school football team.  He then from September 2021 studied for a diploma of vocational education at the Youth College in Kwai Fong.  He has not completed the diploma because he was arrested for the present case. 

24.  He had also worked as an air-conditioning apprentice on a part-time basis, earning $15,000 a month before he was arrested.

25.  The 2^nd defendant is single.  His parents are divorced.  He lived with his father and his elder sister at a public housing estate.  I am told that the 2^nd defendant was a drug addict, and this has been confirmed in a urine test carried out shortly after his arrest. 

26.  The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  The first step is to identify the relevant sentencing band (or bracket)  applicable to the quantity of drug concerned.  The second step is an assessment of the role and culpability of the defendant based on the evidence before the court. The third step is to identify where in the relevant band of the guideline the defendant comes.  It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant.  The fourth step is to consider the aggravating factors which bear on the “notional sentence after trial”.  The fifth step is to have regard to any matters of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”.   The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just, and balanced sentence”. 

27.  I shall adopt a similar six-step approach in arriving at the appropriate sentences for all the charges in the present case. 

28.  Regarding step one as applied to the 1^st defendant, this involves the identification of the appropriate initial sentencing range applicable to the quantity of drug involved, before considering the role and culpability of the 1^st defendant under step two.

29.  Taking Charges 1 and 2 (trafficking in a dangerous drug)  against the 1^st defendant together, the narcotic content of the total quantity of dangerous drug seized was 602.53 grammes of cocaine.  For this purpose, I shall ignore the minute quantity of 0.03 grammes of a solid containing cocaine and ketamine referred to in Charge 2. 

30.  According to the sentencing guidelines for trafficking in cocaine set out in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138 at paragraph 62, for trafficking in between 500 grammes and 1,500 grammes of cocaine, the appropriate starting point after trial would be 16 to 20 years’ imprisonment. 

31.  Regarding step two as applied to the 1^st defendant, concerning the 1^st defendant’s role and culpability, I accept that the 1^st defendant was no more than a courier, in that his role was to deliver the drug for someone for a reward. 

32.  Regarding step three as applied to the 1^st defendant, for 602.53 grammes of cocaine, an arithmetical approach towards the guidelines would lead to a notional sentence after trial of 16 years and 4.9 months’ imprisonment.  Based on my finding of the 1^st defendant’s role and culpability under step two above, I would adopt that as the notional sentence after trial in this case. 

33.  Regarding step four as applied to the 1^st defendant, I consider that there is no aggravating factor which would enhance the notional sentence after trial. 

34.  Regarding step five as applied to the 1^st defendant, I consider that the only mitigating factor which may reduce the 1^st defendant’s sentence is his timely guilty plea, for which I will give him a one-third discount.  As mentioned above, the 1^st defendant was just under 17 at the time of the offences.  Notwithstanding submissions urged on his behalf, I do not see fit to afford him any additional discount, alas it may give a wrong signal to and encouragement for minors to engage in this evil trade. 

35.  Accordingly, the 1^st defendant’s overall sentence is reduced to 10 years and 11 months’ imprisonment.

36.  To achieve the totality of 10 years and 11 months’ imprisonment, I sentence the 1^st defendant as follows:

(1)  The 1^st defendant is sentenced to 3 years and 4 months’ imprisonment on Charge 1;

(2)  The 1^st defendant is sentenced to 10 years and 10 months’ imprisonment on Charge 2;

(3)  I order that one month of the sentence on Charge 1 is to run consecutively to the sentence on Charge 2, thus resulting in a total sentence of 10 years and 11 months’ imprisonment.

37.  Finally, I consider that a sentence of 10 years and 11 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and in the circumstances of the 1^st defendant. 

38.  I turn now to the 2^nd defendant.  Regarding steps one to three as applied to the 2^nd defendant on Charge 2 (trafficking in dangerous drugs), the narcotic content of the quantity of dangerous drugs seized was 592.02 grammes of cocaine. Again, I shall ignore the minute quantity of 0.03 grammes of a solid containing cocaine and ketamine as referred to in Charge 2.  I would adopt 16 years and 4 months’ imprisonment as the notional sentence after trial for Charge 2.

39.  Regarding steps one to three as applied to the 2^nd defendant on Charge 3 (manufacturing a dangerous drug), in determining the notional sentence after trial, I take into account the following:

(1)  It has long been held in this jurisdiction that the offence of manufacturing is to be regarded even more seriously than the offence of trafficking;

(2)  If the drug manufacturing act is a continuous act spanning a period of time, and the drug manufacturing workshop is of considerable scale and productivity involving a large amount of chemicals used for drug manufacturing as well as a not insignificant quantity of high standard drug manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment, even if the quantity of drugs seized on the spot was not substantial: see HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, paragraph 34. In our case, the relevant quantity of drugs seized was 592.02 grammes of cocaine.

40.  In the present case, taking into account all the relevant circumstances, I hold that the notional starting point on Charge 3 (manufacturing a dangerous drug)  against the 2^nd defendant should be 19 years’ imprisonment. 

41.  Regarding step four as applied to the 2^nd defendant, I consider that there is one particular aggravating factor which would enhance the notional sentence after trial. 

42.  As mentioned above, the 1^st defendant was 16 years and 11 months old at the time of his arrest in July 2022.  He was thus a minor at the material time. 

43.  From the nature of Charge 2 and the Summary of Facts admitted by the 1^st and 2^nd defendants and referred to above, I am satisfied beyond reasonable doubt that the 2^nd defendant had taken part in a joint enterprise which used a minor (ie the 1^st defendant)  to traffic in dangerous drugs, in particular, using the 1^st defendant to deliver the cocaine manufactured inside Room G by the 2^nd defendant, in terms of section 56A of the Dangerous Drugs Ordinance, Cap 134. Although I am not satisfied from the evidence that the 2^nd defendant was necessarily the person who actually recruited and employed the 1^st defendant. 

44.  Taking into account all the circumstances of the present case, for this aggravating factor, I would enhance the notional sentence after trial by 2 years.  I will apply this enhancement to the starting point on Charge 3 (manufacturing a dangerous drug), taking the notional starting point up to 21 years’ imprisonment.  This would represent roughly a 10.5 per cent increase from the initial starting point of 19 years.

45.  Regarding step five as applied to the 2^nd defendant, I consider that the only factor which may reduce the 2^nd defendant’s sentence is the timely guilty plea, for which I will give him a one-third discount.  I am not minded to exercise my discretion to grant the 2^nd defendant a reduction in sentence on the basis that the 2^nd defendant intended to use a small part of the dangerous drug for his own consumption.  Bearing in mind the large quantity of dangerous drugs involved under Charge 2 (over 590 grammes of cocaine), that a small part of it may have been intended by the 2^nd defendant for his own consumption can hardly make a material difference to the starting point. 

46.  Accordingly, the 2^nd defendant’s sentences are reduced to the following:

(1)  Regarding the 2^nd defendant on Charge 2 (trafficking)  10 years and 10 months’ imprisonment;

(2)  Regarding the 2^nd defendant on Charge 3 (manufacturing)  14 years’ imprisonment;

(3)  I order that the sentences on Charge 2 and Charge 3 are to run wholly concurrently, thus resulting in a total sentence of 14 years’ imprisonment.

47.  Finally, I consider that a sentence of 14 years’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and in the circumstances of the 2^nd defendant.