HKSAR v. YAU CHUN WAI

HCCC 395/2024

[2026] HKCFI 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 395 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “trafficking in dangerous drugs” and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 14 November 2024. The case was then committed to the Court of First Instance for sentence. Before this court, he confirmed his plea and his agreement to the Summary of Facts through counsel.

2.  The particulars of offence state that on 12 June 2023, at No. 95 Fa Yuen Street, Kowloon, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely, 703.41 grammes of a crystalline solid containing 702 grammes of methamphetamine hydrochloride, 469.16 grammes of a mixture containing 364.54 grammes of heroin hydrochloride, 20.5 grammes of a solid containing 17.8 grammes of ketamine, and 0.23 grammes of a solid containing 0.17 grammes of cocaine. 

3.  The Summary of Facts admitted by the defendant provides, inter alia, as follows.  On 12 June 2023, in the afternoon, a vehicle bearing registration number VT 9759 (the “Vehicle”)  arrived at No. 95 Fa Yuen Street and was parked thereat at 3.45 pm.  

4.  At 3.47 pm on the same day, the door at the driver’s seat was opened and around two minutes later, the defendant alighted from the Vehicle whilst holding a yellow paper bag.  The defendant then left the location and headed somewhere else.  At around 4.03 pm, the defendant returned to the Vehicle whilst still holding the yellow paper bag.  

5.  The police approached the Vehicle and noticed that the defendant was lying on his side on the driver’s seat with his feet stepping on the curb of the pavement and his head down looking for something at the centre console area of the Vehicle. Feeling suspicious, the police intercepted the defendant for further enquiries.

6.  The defendant was instructed by the police to alight from the Vehicle.  During enquiries, the defendant appeared to be rather hesitant and

furtive and kept looking back to a black cross-body bag placed in the driver’s

seat of the Vehicle anxiously. In light of these circumstances, the police seized the cross-body bag and opened it in the presence of the defendant. Inside the bag, there was a black plastic bag containing a plastic wrapping containing 348 grammes of a mixture in the form of a block containing 265 grammes of heroin hydrochloride (“E1”)  and a black plastic bag containing six transparent resealable plastic bags with an orange seal (four of which with the number “30” marked thereon)  containing a total of 115 grammes of a mixture containing 94.5 grammes of heroin hydrochloride (“E2”).

7.  At 4.10 pm, PC60018 arrested the defendant and cautioned him for the offence of “trafficking in a dangerous drug”.  Under caution, the defendant remained silent.  

8.  At around 4.34 pm, in the presence of the defendant, a search was further conducted on the Vehicle.  Upon government chemist’s examination, a total of the following dangerous drugs were seized from the Vehicle: 

(1)  703.41 grammes of a crystalline solid containing 702 grammes of methamphetamine hydrochloride;

(2)  469.16 grammes of a mixture containing 364.54 grammes of heroin hydrochloride;

(3)  20.5 grammes of a solid containing 17.8 grammes of ketamine; and

(4)  0.23 grammes of a solid containing 0.17 grammes of cocaine.

9.  At 5.35 pm, the defendant was cautioned again for the offence of “trafficking in a dangerous drug”.  Under the caution, the defendant remained silent. 

10.  At around 7.20 pm, the police conducted further search inside the Vehicle and seized a total of HK$22,776.60 cash, the car key of the Vehicle and two mobile phones from the Vehicle.  Subsequently, upon a body search at the police station, a total amount of HK$10 was seized from the defendant.  

11.  Under caution, the defendant stated, inter alia, the following in his video-recorded interview conducted on 13 June 2023: 

(1)  He explained that he only committed the offence to earn some living expenses;

(2)  He admitted that the HK$22,776.60 cash seized from the Vehicle and $10 cash found on him belonged to him;

(3)  He admitted that the two mobile phones seized belonged to him but refused to provide the passcodes of the mobile phones to the police; and

(4)  When the other questions in relation to dangerous drugs were put to him, he refused to answer them.

12.  The estimated street value of all the dangerous drugs seized was around HK$831,740 (cocaine powder)  or HK$831,824 (crack cocaine). 

13.  The defendant now admits and accepts that he had knowledge of all the dangerous drugs seized and was knowingly in possession of all the said dangerous drugs seized for the purpose of unlawful trafficking in their entirety. 

14.  As to the personal background of the defendant, the defendant was born in Hong Kong on 1 February 1975 and is now aged 50.  He received education up to Secondary Form 2 level and was unemployed at the time of the offence.  The defendant is single and has lost contact with his family members.  The defendant has 44 previous convictions, five of which are drug related, but none for trafficking in dangerous drugs.  

15.  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 guidelines 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 aggravating factors which bear on the “notional sentence after trial”. The fifth step is to have regard to any matter 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”.

16.  Regarding the first step, the task is to identify the appropriate range applicable to the quantity of drugs concerned.  For this purpose, I shall ignore the 0.17 gramme of cocaine seized, which is not going to make any material difference to the sentence to be passed on the defendant.  The narcotic contents of the total quantity of dangerous drugs seized were 702 grammes of methamphetamine hydrochloride, 364.54 grammes of heroin hydrochloride, and 17.8 grammes of ketamine. 

17.  In HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138, the guideline brackets for a quantity of 702 grammes of methamphetamine hydrochloride and 364.54 grammes of heroin hydrochloride are respectively 18 to 20 years’ imprisonment and 12 to 16 years’ imprisonment.  According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the guideline bracket for a quantity of 17.8 grammes of ketamine is 4 to 6 years’ imprisonment.  

18.  As three different kinds of drugs were involved with a combined weight of 1,084.34 grammes, in order to assist me in identifying the overall starting point of the offence, the “Absurdity Test”, “Ratio Test” and “Conversion Test”,  as explained in HKSAR v Chan Yuk Leong, CACC 318/2013  (Judgment dated 8 April 2014)   have been conducted, with the following results: 19 years and 0.9 months under the Absurdity Test; 18 years and 9 months under the Ratio Test; and 18 years and 9.6 months under the Conversion Test. 

19.  Having considered the above results in the round and taking into account that more than one type of dangerous drugs is involved, which is an aggravating  feature, I consider that  the starting point of  19 years  would be

appropriate in the present case. This is purely based on the quantity and types of drugs involved, before any consideration of the defendant’s role in the offence.

20.  Second, concerning the defendant’s role and culpability, my assessment should be based upon the evidence before the court, whether by admission or by direct or circumstantial evidence, see: Herry Jane Yusuph supra, paragraphs 58 and 61.  In this regard, I am prepared to accept that the defendant acted as a courier of the drugs.  

21.  Third, in view of my aforesaid finding of the defendant’s role and culpability, I consider that a sentence of 19 years’ imprisonment would be the appropriate overall notional sentence after trial for the offence in question.   

22.  Fourth, I consider that there is no aggravating feature which would enhance the notional sentence after trial.  

23.  Fifth, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely guilty plea, for which I will give him a one-third discount.  Accordingly, the defendant’s sentence is reduced to 12 years and 8 months’ imprisonment. 

24.  Finally, I consider that a sentence of 12 years and 8 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and in the circumstances of the defendant.