HKSAR v. WONG LUI

HCCC 64/2025

[2025]HKCFI 5145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 64 OF 2025

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty in the magistracy to one count of trafficking in a dangerous drug and was committed on 20 February 2025 to the Court of First Instance for sentence. The defendant confirmed his plea and the admission to the Summary of Facts before me, and his conviction was duly recorded.

Particulars of the charge are that the defendant, on 9 October 2023, near Lamppost CE1412, Chak Cheung Street, Ma On Shan, Sha Tin, New Territories, unlawfully trafficked in a dangerous drug, namely 66.57 grammes of a solid containing 43.77 grammes of cocaine and 0.69 grammes of a solid containing 0.57 grammes of ketamine.

Facts

The facts of the case that the defendant has admitted can be summarised as follows for present purposes:

On 9 October 2023, at about 12.56 am, the defendant was driving a car near Science Park Road, Ma On Shan, Sha Tin. It did not stop at the give-way junction and drove directly towards the roundabout at Chak Cheung Street.

The car was intercepted by uniformed police conducting traffic enforcement. Only the defendant was in the car. As he alighted from the car, he was holding one plastic bag in his right hand, which contained 2.35 grammes of a solid containing 1.69 grammes of cocaine.

Upon enquiry, the defendant refused to explain the content of the plastic bag. Upon search of the private car, the following items were found; one pencil bag, one red packet, one digital scale, one plastic bag sealer, all kept in a storage compartment near the driver’s seat.

Inside the pencil bag, the following items were found: one $50 banknote folded into a packet containing one plastic straw and 0.03 grammes of a solid containing ketamine; one $20 banknote held into a packet containing 0.07 grammes of a solid containing cocaine; one plastic bag containing 0.66 grammes of a solid containing 0.57 grammes of ketamine; and one plastic bag containing 0.45 grammes of a solid containing 0.28 grammes of cocaine.

The red package was found to contain four plastic bags containing a total of 63.7 grammes of a solid containing 41.8 grammes of cocaine.

Upon search of the defendant, the following items were found: three mobile phones with a total of four SIM cards; cash totalling HK$17,192.

The defendant was arrested and remained silent on the verbal caution. In a subsequent video-recorded interview, he remained silent under caution.

The DNA samples were obtained from the private car on the steering wheel and the gear lever, which matched the defendant’s DNA.

The estimated street value of the drugs seized were cocaine, HK$66,037 in powder form, or HK$70,764 in crack form. Ketamine, HK$335.

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

Previous convictions

The defendant has 18 previous convictions, three related to possession of dangerous drugs, which were in 2001, 2015 and 2024 respectively, and one previous conviction for trafficking in dangerous drugs in 2011, for which he was sentenced in the District Court for 4 years and 4 months’ imprisonment.

Background and Mitigation

The defendant was born in the Mainland China and is now 40. He moved to Hong Kong at the age of 6. His education level is up to Form 5. His father passed away in 2005. His mother is a retiree now aged 65. He is divorced and has a son now aged 8 who is in Primary 3. The defendant has taken full responsibility of his son’s care since the child was 3 years old. Before being remanded, the defendant resided with his mother and his son.

The court has informed that, at the time of the offence, the defendant was employed as a warehouse worker, earning HK$18,000 a month, and he contributed about 12,000 a month to support his mother and son, and he was also responsible for paying the monthly rent of the residence.

It was submitted in mitigation that, at the time of the offence, the defendant was instructed by a man to deliver the drugs to another location. The defendant was not the owner of the car but was provided with the car and its keys by another man. He was instructed to drive the car to Tai Wai with various items found inside it for a reward of HK$2,000. It is said that none of the items found in the car belonged to the defendant and he committed the offence for financial reasons.

Miss Vivian Wong, counsel for the defendant, informed the court that the defendant is remorseful for the offence and pleads for leniency. It was expressly stated that partial consumption is not relied on as mitigation.

Miss Wong submitted that the defendant was merely a courier and that although the present case concerned two types of drugs, the quantity of the ketamine was insignificant and realistically was incapable of widening the market. Therefore, she asks the court to disregard it for the purpose of sentencing and not to enhance the sentence for this purpose.

Miss Wong also invited the court not to enhance the sentence on account of the defendant’s previous conviction for trafficking in a dangerous drug due to the fact that this is a second conviction for this offence after 14 years.

Sentencing

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

Applying the Herry Jane Yusuph steps

The six-step sentencing approach introduced by the Court of Appeal in HKSAR v Herry Jane Yusuph, as read in conjunction with HKSAR v Lee Ming Ho are applied as follows.

Step one - the applicable guidelines tariff band

Step one is to identify the relevant guideline band applicable to the quantity of the dangerous drugs in question. The sentencing guidelines, as updated in the case of HKSAR v Huang Ruifang for cocaine are applied. For 43.77 grammes of cocaine, the applicable band is 5 to 8 years. The sentencing guidelines are stated in the case of The Secretary for Justice v Hii Siew Cheng, for ketamine are applied. For 0.57 grammes of ketamine, it is within the court’s wide discretion.

Step two - the defendant’s role and culpability

The second step is to assess the role and culpability of the defendant. Although the various items found in the car and also on the defendant himself, raised strong suspicion as to whether he was an actual or direct trafficker, which is more culpable than a mere courier. But on the evidence before the court, this matter remains uncertain. In the circumstances, I am prepared to treat the defendant as a mere courier.

Step three - the relevant band within the guidelines

In determining the proper overall starting point, I reminded myself of the sentencing principles of trafficking in more than one type of drugs. There are three main means of cross-checking the appropriateness of the overall starting point in the case of a trafficking involving different types of dangerous drugs. The so-called absurdity test, conversion test and the ratio test respectively. See the cases of HKSAR v Yip Wai Yin & Anor, and HKSAR v Chan Yuk Leong.

To achieve reasonable and realistic sentence, I will adopt the combined approach which involved an upward adjustment from the starting point of the base drug. As the total amount of cocaine in this case represents about 99 per cent of the total drugs, it was the more and most serious drug, in terms of potency. Therefore I will use cocaine as the base drug to calculate the starting point.

The arithmetical application of the tariffs of 43.77 grammes of cocaine would lead to a notional starting point of 7 years and 6 months’ imprisonment. In determining the upward adjustment for the remaining 0.57 grammes of ketamine, I examined the overall starting point by checking it against the results of the three tests above. According to the calculations done by the court, as helpfully confirmed by both the prosecution and the defence, the absurdity test, the conversion test, and the ratio test all yielded similar results of 7 years and 6 months. But the results are based on pure arithmetical calculation.

In any event, I accept Miss Wong’s submission that the quantity of ketamine in this case can be regarded as insignificant in the overall sentence. Therefore, I shall disregard the small quantity of ketamine for the purposes of sentence.

In determining the appropriate overall starting point, I also took into consideration the role and the culpability of the defendant. Having accepted the role of the defendant to be a mere courier, I shall adopt an overall starting point of 7 years and 6 months’ imprisonment at this step.

Step four - aggravating factors

The defendant has previous conviction records for possession of dangerous drugs, but this is only his second conviction for trafficking in a dangerous drug, and his first conviction was already 14 years ago, back in 2011. In all the circumstances, I am persuaded by Miss Wong, and I shall not enhance the starting point on account of his previous record.

This case involves the trafficking in two different types of dangerous drugs. In the case of HKSAR v Chan Yuk Leong, the Court of Appeal stated the fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features, one being the ability of the trafficker to cater to a wider market, the other being the effect on users of combinations of dangerous drugs.

However, due to the relatively small amount of ketamine seized in this case, I will not enhance the starting point on account of the presence of the two types of drugs.

It was helpfully brought to the court’s attention by Ms Lo, counsel for the prosecution, that the present offence was committed whilst the defendant was on police bail for other offences. This was fairly and correctly accepted by Miss Wong as an aggravating factor.

In HKSAR v Wong Yun Fat, the Court of Appeal confirmed that even if the bail was only police bail, the fact that the accused committed another offence whilst on bail was still an aggravating factor. The issue was not whether the sentence should be enhanced, but rather by how much. It was held in Wong Yun Fat that the defendant’s conduct in trafficking whilst on police bail for possession of drugs demonstrated a serious disregard for the law and a persistence in offending. The sentence in that case was enhanced by 6 months, to bring the starting point to 11 years.

In this case, the defendant was granted police bail on 21 September 2023 for various offences including the possession of dangerous drugs, and the present offence was committed on 9 October 2023. This demonstrates a serious disregard to the law. I shall therefore enhance his sentence by 3 months due to this aggravating factor, which results in 7 years 9 months’ imprisonment at this step.

Step five - mitigating factors

Given the seriousness of drug trafficking offence, the only strong mitigating factor in the defendant’s case is his guilty plea, which was entered at the earliest opportunity. Because of that, he is entitled to a full one-third discount. That brings the sentence down from 7 years 9 months’ imprisonment to 5 years and 2 months’ imprisonment.

Totality

In my judgement, this is a fair, just and balanced sentence in all the circumstances of the offence and the offender for the reasons stated above.

Final sentence

Accordingly, the defendant is sentenced to imprisonment for 5 years and 2 months.

Mr Wong, please stand. The court sentences you to imprisonment for 5 years and 2 months, and I must say you are fortunate to have very fair and able prosecuting and defence counsel in this case.