The defendant pleaded guilty in the magistracy to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the Court of First Instance for sentence. He has confirmed his pleas and admission of the Summary of Facts before me.
Admitted Facts
The facts of the case that the defendant has admitted can be summarised as follows for the present purpose.
On 4 January 2023 at 2.15 pm, Customs Officers saw the defendant pick up a blue recycle bag at Ching Shing Road, Sheung Shui. Having picked up the bag, the defendant immediately boarded a private car and drove away.
The officers tailed him in a government vehicle. At about 2.52 pm, the defendant’s vehicle entered the car park of a residential complex called Heya Crystal in Cheung Sha Wan. Subsequently, Customs Officers found the defendant’s unattended vehicle at car parking space designated as C8.
At about 2.58 pm, the defendant approached his vehicle furtively. Customs Officers intercepted the defendant and conducted a body search on him. Inside the grey rucksack that the defendant was carrying, the officers found a blue recycle bag and inside which were found 816 grammes of cocaine narcotic (that is the dangerous drug in Count 1) amongst other things.
Upon arrest and under caution, the defendant stated that the blue recycle bag contained cocaine which belonged to him, that he intended to bring it to a flat in Heya Crystal, and that he would be given a reward of $8,000 for every delivery he had made. $5,390 of cash, an Octopus card, and a mobile phone with two SIM cards were seized from the defendant also.
In addition, Customs Officers found a bunch of four keys inside the defendant’s vehicle. Using those keys, the officers gained entry to the said flat. They found 41,001.1 grammes of cocaine narcotic (that is the dangerous drugs in Count 2) on the bed in a room inside the flat.
Under caution, the defendant admitted knowledge and ownership of the cocaine. Again, he stated that he would be given a reward of $8,000 for every delivery he had made. He claimed that he was waiting for delivery instructions at the time. He asserted that he earned $15,000 monthly as a driver.
Subsequent investigations revealed that he had attended Heya Crystal on 13 occasions between 9 December 2022 and 2 January 2023.
The estimated street value of all the cocaine in this case was $46,578,790.7.
Background and Mitigation
Based on the defendant’s antecedent statement, his criminal record, and the submissions of Mr Tze who represents the defendant, the defendant’s background is as follows.
The defendant was 31 years old at the time of offence. He is now 33 years old. He has studied up to Form 3 level. He is a divorcee. At the time of arrest, he was living with his girlfriend and 6-month-old daughter. He was solely responsible for his household expenses and his aged unemployed mother.
He used to be a driver, earning $15,000 to $20,000 a month. He suffered a waist injury at work three months before the offences which prevented him from working. Due to financial difficulties, he was used by the drug dealer as a courier. It was said that the defendant had yet to receive any reward from his drug trafficking activities. Both his girlfriend and mother are suffering from diseases and they are now relying on the $8,000 disabled allowance.
The defendant was previously bound over for an offence of Assault Occasioning Actual Bodily Harm. He breached that bind over order when he committed another Assault Occasioning Actual Bodily Harm offence. For this second offence, he was sentenced to 12 months’ probation on 20 October 2022. He committed the present offences on 4 January 2023, in other words, whilst still under probation.
As for the sentence, Mr Tze submitted that the cocaine in the two counts should be added up for the purpose of sentencing. Relying on HKSAR v Abdallah [2009] 2 HKLRD 437, HKSAR v Li Wing Lok [2024] HKCFI 152, and HKSAR v Ho Lap Wai [2025] HKCFI 186, he submitted that the range of sentence could be slightly less than 31 years and 6 months. He submitted that the defendant was just a courier/storekeeper. He urged the court not to treat the defendant’s previous conviction as an aggravating factor. Finally, he asked that full credit be given to his plea, and a certain reduction be given on the basis of his family background.
Sentence
The Court of Appeal has laid down new sentencing guidelines for trafficking in cocaine (and heroin and methamphetamine hydrochloride) in the case of HKSAR v Huang Ruifang [2025] HKCA 234 on 5 March 2025. Approximately from trafficking in 500 grammes of cocaine onwards, the applicable tariffs have become lower than before.
Although the present offences were committed before the new sentencing guidelines have been laid down, Article 12(1) of the Hong Kong Bill of Rights stipulates that:
“If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”
Count 1 concerns 816 grammes of cocaine, therefore, the new tariff should apply. Count 2 concerns 41,001.1 grammes of cocaine. Although the sentence imposed on trafficking in this quantity falls within the sentencer’s discretion whether adopting the previous or new guidelines, when considering the appropriate sentence, including when considering the cases cited by Mr Tze, I shall bear in mind the principle in the new guidelines that the tariffs for trafficking in larger quantities of cocaine have been adjusted downwards.
I now consider the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. Bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
Step one is to identify the relevant band applicable to the quantity of narcotics concerned. There are two counts in this case. Given both counts concerned the same type of dangerous drug, the close proximity in terms of date, time and place of offence, and the fact that the quantity of cocaine in Count 2 is significantly higher than that in Count 1 and has already brought the sentence into the realm of discretionary sentence, I agree with Mr Tze that the two quantities should be combined when considering the appropriate sentence for the case as a whole.
That being the case, the quantity based on which the overall sentence is to be determined is 41,817.1 grammes.
According to HKSAR v Huang Ruifang, trafficking in between 15,000 and 30,000 grammes of cocaine should attract a starting point for sentence of 27 to 30 years of imprisonment. Above 30,000 grammes, sentences will fall within the discretion of judges, bearing in mind the practical and realistic ceiling of 35 years’ imprisonment as established in HKSAR v Sum Ka Wa [2024] 4 HKLRD 777 (decided on 8 August 2024), and the legislative maximum of life imprisonment for cases of truly exceptional gravity.
In the present case, the quantity concerned is one of 41,817.1 grammes.
I have considered the cases cited by Mr Tze, namely Li Wing Lok (decided on 6 December 2023) and Ho Lap Wai (decided on 20 November 2024). In the former, the court adopted a starting point of 31 years 6 months for trafficking in 46.2 kilogrammes of cocaine. This case was decided before Sum Ka Wa. In the latter, which was decided after Sum Ka Wa but before Huang Ruifang, the starting point was 32 years’ imprisonment for trafficking in 82.9 kilogrammes of cocaine. These cases are of course first instance cases, not guideline cases.
Bearing in mind the principle in the new guidelines that the tariffs for trafficking in larger quantities of cocaine have been lowered, I adopt an overall starting point of 31 years’ imprisonment.
Step two is to assess the role of the defendant. Although he claimed under caution that the cocaine belonged to him, given the estimated retail value of all the cocaine in the case was over $46 million, his expression has to be understood in context and must mean he was the custodian of the drugs. On the facts admitted, I find the defendant’s role was no more than a courier and a storekeeper.
Step three is to decide where within the guidelines the defendant should lie. Given my assessment of his role, the overall starting point remains as 31 years’ imprisonment.
Step four deals with aggravating factors, if any. The defendant committed a second offence of Assault Occasioning Actual Bodily Harm while under a bind over order, and then committed the present offences while just a few months into serving a probation order. Although the offence was not a serious one as reflected in the sentence of probation order, such flagrant disregard for the law should be regarded as an aggravating factor. The starting point is therefore enhanced by 3 months to 31 years and 3 months.
Step five considers the mitigating factors. I do not regard the defendant’s personal or family circumstances as any mitigating factor. As the Court of Appeal emphasised in HKSAR v Abdallah [2009] 2 HKLRD 437, at paragraph 32:
“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally - dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”
The only mitigating factor open to the defendant is his pleading guilty at the earliest opportunity. For that, he is entitled to a full one-third discount. That brings down the overall sentence to 20 years and 10 months.
The final step is to ensure that the overall sentence is one that is fair, just and balanced in all the circumstances of the offences and the defendant.
If one looks at Count 1 only, according to Huang Ruifang, trafficking in between 500 and 1,500 grammes of cocaine should attract a starting point for sentence of 16 to 20 years of imprisonment.
For Count 1 which involves 816 grammes of cocaine, the starting point for sentence is one of 17 years 3 months on a purely arithmetical basis. Enhancing it by 3 months for the aggravating factor, the starting point will be 17 years 6 months. Reducing that by one-third for the plea and it will become 11 years 8 months.
Contrasting the overall sentence of 20 years 10 months for a quantity of 41,817.1 grammes against 11 years 8 months for a quantity of 816 grammes, and bearing in mind all the circumstances of the offences and the defendant, I am satisfied that the overall sentence of 20 years 10 months’ imprisonment is a sentence that is fair, just and balanced. 20 years 10 months. This is the overall sentence.
To achieve that, in relation to Count 1, the starting point after enhancing for the aggravating factor and sentence are 17 years 6 months and 11 years 8 months respectively.
In relation to Count 2, the starting point after enhancing for the aggravating factor and sentence are 30 years 9 months and 20 years 6 months respectively.
4 months in Count 1 is to run consecutively to the sentence for Count 2. The overall sentence is therefore 20 years 10 months. I sentence the defendant to 20 years 10 months of imprisonment accordingly.