HKSAR v. CHUNG YU KIT

HCCC 36/2022

[2025] HKCFI 1355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 36 OF 2022

(Related to HCCC 273/2023)

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges of trafficking in dangerous drugs[1] before Magistrate Mr. Jason WAN, admitted to the summary of facts and was committed on 3 May 2022 to the Court of First Instance for sentence. He confirmed his pleas and admissions before me and the convictions were duly recorded.

PARTICULARS

COUNT 1

2.  The defendant, on 20 November, 2020, outside No. 10 Temple Street, Yau Ma Tei, Kowloon (“the Building”), unlawfully trafficked in a dangerous drug, namely 613.14 grammes of a solid containing 522.66 grammes of ketamine and 13.8 grammes of a powder containing 12 grammes of ketamine.

COUNT 2

3.  The defendant, on 20 November, 2020, at Room 3, 1^st Floor, No. 10 Temple Street, Yau Ma Tei, Kowloon, unlawfully trafficked in dangerous drugs, namely 600.50 grammes of a crystalline solid containing 594.17 grammes of methamphetamine hydrochloride (commonly referred to as ‘Ice’) and 712.38  grammes of a solid and a crystalline solid containing 597.57 grammes of ketamine.

SUMMARY OF FACTS

4.  The defendant was intercepted at about 10:42pm on the charge date by plainclothes police officers conducting an anti-narcotic operation when he was seen leaving the Building carrying a paper bag, which was later found to contain a plastic bag with a transparent re-sealable plastic bag.  All the ketamine in count 1 were found from multiple plastic bags inside.  

5.  The defendant was arrested and claimed under caution that he was delivering the drugs for someone else so that he could earn a living for his family.  

6.  The defendant was brought back up to 1^st floor of the Building, where a search warrant for that floor was executed.  The main door to the floor was opened with keys found on the defendant, who indicated that he occupied Room 3 of the 5 sub-divided rooms there.  

7.  The door to Room 3 was secured by an electronic lock, and the defendant claimed that he had to contact a “Big B” every time he needed to enter the room, and “Big B” would unlock the door remotely since he was not given the passcode to the lock.  

8.  Police officers forced open the door and executed the search warrant for Room 3, which was about 100 square feet, with a washroom, a bed, a table and a refrigerator.

9.  Almost all the dangerous drugs particularized in count 2 were found on the bed, contained in various and numerous plastic bags.  There was also a mobile phone, a pair of scissors, a digital scale, 139 empty transparent re-sealable plastic bags; and 2 rolls of plastic bags.

10.  8 pieces of A4 paper containing a total of 102 grammes of a solid containing 88.7 grammes of ketamine, being the rest of the dangerous drugs in count 2; another digital scale; one heat sealing machine; and one plastic spoon were found on the table.

11.  The defendant’s home at Shek Kip Mei Estate was later searched and nothing suspicious or illegal was found.

12.  The defendant provided the password to his 2 mobile phones to the police.  Telegram messages show the defendant communicating with contacts “Ak” and “Big B” in a chat group named “Kit”.  There were messages relating to drug-trafficking activities between the defendant and other members of the chat group.  The defendant had sent photos showing drugs in bags, and drug being weighed, and the rental receipt of Room 3 to the chat group.

13.  The estimated street value of the ketamine and Ice was, respectively, HK$858,504 and $396,931, being $1,255,435 in total.

14.  By his admission to the summary of facts, the Defendant had accepted that at the material time he unlawfully trafficked in all the dangerous drugs seized.

PREVIOUS CONVICTION

15.  The defendant is of previously clear record.

BACKGROUND AND MITIGATION

16.  The defendant is 26 years old.  He was born in mainland China and came to Hong Kong in around 2003 when he was 5.  His parents divorced when he was 7 and the defendant has since been living with his mother.  The defendant worked as a casual worker to help support his family before the present arrest.  

17.  The defendant wrote in mitigation, telling the court how his mother had raised him single-handedly, and how, with just a Form 4 level education, it was not easy to find work to help out his mother, which led to his commission of the offences. It pains him to see how his mother has suffered because of his foolishness.  

18.  The defendant is determined to turn a new leaf, to repay the faith his mother and relatives still have in him.  He is willing to accept whatever punishment the court deem appropriate for him, although he does seek leniency.  

SENTENCING

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

20.  As Mr. Tze correctly pointed out, although there are 2 charges and the drugs were found from two locations, it is trite law that the defendant should be sentenced for the combined quantity found on his person and in Room 3[2], which is 1,132.23g of ketamine, and 594.17g of Ice.

21.  The sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Huang Ruifang [2025] HKCA 234, and HKSAR v Sin Chung-kin [2013] 1 HKLRD 627 are applied.

Step 1: The applicable guideline tariff bands

22.  For the total 1,132.23g of ketamine, the applicable guideline tariff band is that of 14 to 18 years’ imprisonment.  (For the 534.66g of ketamine in count 1, and the 597.57g in count 2, the same band of “9 to 12 years” applies.) 

23.  For the 594.17g of Ice, the updated applicable band is 15 to 18 years’ imprisonment.

Step 2: The defendant’s role and culpability

24.  The defendant is charged alone for the trafficking, but based on his admissions and the circumstantial evidence as disclosed in the summary of facts, he was part of an operation that involved at least 3 people.

25.  The facts suggest that the defendant was trafficking in the drugs for a monetary reward, and that his role was that of a courier and storekeeper of the drugs.  The defendant will be sentenced accordingly, and the arithmetical application of the tariffs will be adopted.

Step 3: The relevant band within the guidelines

26.  Based on my finding of the defendant’s role and culpability, the corresponding notional starting points for the ketamine and Ice are, respectively, 14 years 6 months and 17 years 11 months.  

27.  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

28.  On the basis of all 1,726.4g of narcotics were the more potent drug of Ice, any combined starting point above 20 years 3 months could be regarded as absurdly high.

CONVERSION TEST

29.  272.91g of Ice would attract an equivalent starting point of 14 years 6 months.  If this converted 272.91g is added to the original 594.17g of Ice, the total converted quantity of 867.08g would lead to a notional starting point of 18 years 7 months.

RATIO TEST

30.  Based on the proportion of different drugs involved, the sentence should be about 18.06 years.

THE COMBINED NOTIONAL STARTING POINT

31.  Having regard to the above test results, taking into consideration the defendant’s role and culpability as a courier and storekeeper, I will adopt a combined starting point of 18 years 6 months’ imprisonment to 1,132.23g of ketamine and 594.17g of Ice.

Step 4: Aggravating factors

32.  The defendant trafficked in two different types of drugs and it is trite law that this is an aggravating factor.  Given the quantity involved, I will enhance the sentence by 6 months, taking the combined starting point to 19 years (228 months).  

Step 5: Mitigating factors

33.  I was informed that the Defendant had provided 2 non-prejudicial statements to the police, and had attended an identification parade, in which he identified the person who recruited him.  That person had since become the defendant in HCCC 273/2023, where the defendant in the present case was listed as a prosecution witness.  The defendant in HCCC 273/2023 eventually pleaded guilty to the charge he faced.  The prosecution confirmed that the defendant’s assistance was useful.  

34.  Mr. Tze relies on the case of HKSAR v Eriksson Rickard Wilhelm CACC 454/2002 for a 45% discount (inclusive of the usual 1/3 discount after plea) for the defendant’s assistance.

35.  This court has dealt with numerous cases where couriers and storekeepers would offer assistance to the authorities but which would, for different reasons, not result in any arrests or prosecutions.  The defendant’s offer of assistance in this case went beyond a mere promise, with his name being listed as a prosecution witness.  It can be assumed that the defendant’s willingness to come forward must have played a part in the guilty plea of the defendant in the other case.  

36.  As Li CJ stated in the Court of Final Appeal case of Z v HKSAR [2007] 2 HKC:

“The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime. Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.”

37.  In line with that policy, I find that the defendant’s assistance must be properly recognized, and I will grant him a very slightly less than 45% discount, inclusive of the usual 1/3 discount after plea, resulting in a combined sentence of (126 months) 10 years 6 months after plea.

Step 6: Totality

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

FINAL COMBINED SENTENCE

39.  To achieve the combined sentence after plea, I will sentence the defendant to 74 months and 115 months for count 1 and 2 respectively after plea, and order 11 months of the sentence in count 1 to be served consecutively to the sentence in count 2, the balance concurrently.

40.  The final sentence for the two counts is 10 years 6 months’ imprisonment (126 months) after plea.