HKSAR v. TO HO YIN

DCCC 767/2024

[2025] HKDC 837

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 767 OF 2024

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REASONS FOR SENTENCE

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1.  Mr To pleaded guilty before me to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 3 February 2024, at 7^th Floor, Block B, Lux Theatre Building, No 20 Ming On Street, Hung Hom, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 86.69 grammes of a solid containing 66.67 grammes of ketamine, and 4.37 grammes of a solid containing 3.55 grammes of cocaine.

Facts admitted by Mr To

2.  On 3 February 2024, shortly before 1 pm, Mr To was seated at the staircase of 7^th Floor, Block B, Lux Theatre Building, Hung Hom. Beside him were a brown sling bag and two mobile phones.  He was acting furtively.  Patrolling police intercepted him for enquiry.  Mr To was asked to stand.  Whilst Mr To was doing so, a purple plastic bag (“Bag 1”)  fell from his body.  During the fall, the following items parted from Bag 1:-

(a)  40 transparent resealable plastic bags containing a total of 27 grammes of a solid containing 21.2 grammes of ketamine (E1); and

(b)  A brown paper bag containing a transparent resealable plastic bag containing 20 transparent resealable plastic bags containing a total of 11.7 grammes of a solid containing 9.5 grammes of ketamine (E2).

3.  Upon body search, a black waist bag containing the following items was found from inside the trousers of Mr To:-

(a)  A transparent resealable plastic bag containing 46 transparent resealable plastic bags containing a total of 31.5 grammes of a solid containing 25.4 grammes of ketamine (E3);

(b)  A transparent resealable plastic bag containing 11 transparent resealable plastic bags containing a total of 6.86 grammes of a solid containing 4.6 grammes of ketamine (E4);

(c)  A transparent resealable plastic bag containing 14 transparent resealable plastic bags containing a total of 4.37 grammes of a solid containing 3.55 grammes of crack cocaine (E5); and

(d)  A transparent resealable plastic bag containing 15 transparent resealable plastic bags containing a total of 9.63 grammes of a solid containing 5.97 grammes of ketamine (E6).

4.  Mr To was arrested for trafficking in dangerous drugs.  Under caution, he admitted that an unknown male gave him $2,000 and asked him to take the dangerous drugs downstairs to someone.

5.  From the brown sling bag aforesaid, the police found and seized cash of $4,663.

6.  Back at the station, the police seized from Mr To’s wallet cash of $2,281.

7.  The average retail price for the ketamine found was $37,797.  The average retail price for the cocaine found was $5,956.

8.  Mr To now admits he was in possession of E1-6 for the purpose of unlawful trafficking.

Criminal record

9.  Mr To has a clear record.

Antecedents

10.  Mr To is aged 31 (30 at the time of the offence), educated to Associate Degree level.  His parents are over 60 years old and he has an elder sister aged 35.  He lived with his family in public housing in Cheung Sha Wan.

Mitigation

11.  Ms Tiffany Cheung mitigated on behalf of Mr To.  The following is a summary of the mitigation submissions.

12.  Prior to his remand in custody, Mr To resided with his family comprising his father (70), mother (65), and elder sister (35).  Upon graduation from the Associate Degree programme in Rehabilitation, Mr To worked as a medical assistant for a short time before becoming a construction site worker mostly on a part-time basis earning a monthly income of less than $30,000.  Mr To’s parents are both retired.  The elder sister is employed as a salesperson, drawing only a modest income.  The family as a whole is of modest means and has long depended on Mr To as their principal financial supporter.

13.  As the primary breadwinner, Mr To consistently supported his family financially.  Unfortunately, in late 2023, he was made redundant due to economic downturns in the construction sector.  Since then, he has only managed to find irregular part-time work, earning a daily wage of $700.  Despite the substantial reduction in income, Mr To remained committed to supporting his family and he continued to contribute about $6,000 per month toward household expenses.

14.  The applicable approach in sentencing drug trafficking involving multiple drugs has been set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as read together with HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  According to the authorities, the court will look at all circumstances under which a drug trafficker commits the offence so as to determine one’s culpability, and thereafter determine whether the notional starting point should be adjusted upwards or downwards.  Prescriptive adjustment is discouraged, and the extent of adjustment is case-sensitive.

15.  The drugs trafficked in in this case involved:

(a)  86.69 grammes of a solid containing 66.67 grammes of ketamine; and

(b)  4.37 grammes of a solid containing 3.55 grammes of cocaine.

16.  The total weight of all narcotics is 70.22 grammes.  The applicable tariff guidelines for cocaine are contained in HKSAR v Huang Ruifang [2025] HKCA 234; those for ketamine are contained in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

17.  For cocaine, the arithmetical starting point would be 36.8 months.  For ketamine, the arithmetical starting point would be 74.4 months.

18.  Given the multitude of dangerous drugs, the court may apply the combined approach: HKSAR v Chan Yuk Leong, CACC 318/2013; HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367.

19.  Whilst cocaine is the more potent drug, there is a huge difference between the quantity of cocaine and ketamine here, with ketamine being the bulk of the two drugs.  Ms Cheung therefore submitted that it is appropriate to use ketamine as the base drug instead: HKSAR v Wan Lau Mei [2014] 4 HKC 75, and HKSAR v Wong Yun Chuen, CACC 288/2013 (Reasons for Judgment in Chinese).

20.  Ms Cheung then worked out the results of the three cross-checking tests as follows:

(a)  Absurdity test: 74.9 months for 70.22 grammes of ketamine;

(b)  Conversion test: 75.2 months for 72.46 grammes of ketamine; and

(c)  Ratio test: 71.7 months (ketamine)  + 5.2 months (cocaine)  = 76.3 months.

21.  Ms Cheung submitted that the notional starting point would lie between 74.9 and 76.3 months.

22.  Insofar as Mr To’s role is concerned, it was submitted that there is no evidence to indicate that he played more than the role of a courier.

23.  Trafficking in multiple dangerous drugs could lead to enhancement of the notional starting point: Chan Yuk Leong (supra).

24.  In HKSAR v Fong Yik Ching [2023] HKCFI 3331, the defendant trafficked in two types of dangerous drugs, namely 82.5 grammes of ketamine and 9.6 grammes of cocaine; the sentence was enhanced by 2 months.  In HKSAR v Ng Cheuk Lun [2020] HKCFI 3060, the defendant trafficked in four types of drugs, namely 117.2 grammes of ICE, 67.95 grammes of ketamine, 8.22 grammes of cocaine, 0.96 gramme of F-ketamine; the sentence was enhanced by 3 months.

25.  Ms Cheung submitted, with reference to the above non-binding cases, the enhancement in the present case should be 2 months.

26.  The single most important mitigating factor is the early plea of guilty for which Mr To shall be entitled to the full 1/3 discount.  Mr To has shown genuine remorse.

27.  It was submitted on instructions that Mr To was lured into committing the offence by an ex-colleague with a promised reward of $2,000 which he had not yet received.  Mr To was unemployed and under significant financial strain.  As the primary breadwinner, he was struggling to support his family. He was further burdened by his parents’ deteriorating health.  He was tempted to earn quick money.  Mr To maintained that this was an isolated incident with no prior similar conduct.

28.  Despite his financial difficulties, Mr To has maintained a longstanding habit of charitable donations (receipts submitted).

29.  The incident has been profoundly distressing and traumatizing for Mr To.  He has truly learnt a harsh and invaluable lesson.  He has been very cooperative before and after arrest.

30.  Ms Cheung submitted on behalf of Mr To a total of 4 mitigation letters written in Chinese respectively by Mr To himself, his father, mother, and elder sister.  The contents are generally that Mr To is regretful for his ignorance and is ashamed of himself and he promises not to re-offend.  The letter writers ask for a chance and a lenient sentence for Mr To so he may re-integrate into society sooner.

31.  The court’s greatest leniency was asked for.

32.  Upon enquiry by the court, Ms Cheung indicated, after taking instructions, that Mr To was willing to give evidence that he was no more than a courier on the day in question.  In the end, Mr To did give evidence and was duly cross-examined by Ms Fung for the prosecution.

Sentence

33.  Trafficking in a dangerous drug is a serious offence and it is made more serious by the presence of more than one type of drug.

34.  I will as urged by Ms Cheung adopt the combined approach of sentencing.

35.  I have worked out the results of the three cross-checking tests[1] independently[2] and they are as follows:

(a)  Absurdity test: 74.91 months for 70.22 grammes of ketamine; 102.47 months for 70.22 grammes of cocaine;

(b)  Conversion test: 75.23 months for 72.46 grammes of ketamine; 77.595 months for 29.55 grammes of cocaine;

(c)  Ratio test: 94.94% x 74.91 months (ketamine)  + 5.06% x 102.44 months (cocaine)  = 76.30 months.

36.  The six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 will be followed in sentencing Mr To for this offence.

37.  In view of the figures obtained from the three tests, I will adopt an initial starting point of 76 months’ imprisonment.

38.  Regarding Mr To’s role and culpability in the act of trafficking, upon hearing and seeing Mr To give evidence in the witness box, I am not satisfied beyond reasonable doubt that on the day in question, he was an actual/direct trafficker of dangerous drugs.  For this reason, I will treat him as a mere courier for the purpose of sentencing him.  Furthermore, I am not satisfied beyond reasonable doubt that the two separate sums of money found on and about him were proceeds of drug trafficking.  The short reason for my conclusions is that although there were suspicious circumstances surrounding his possession of the two said sums, the way that Mr To gave evidence and maintained his position despite vigorous cross-examination managed to persuade me that what he said might be true[3].

39.  Nonetheless, because of the presence of more than one type of serious drug, I will have to enhance the starting point and I do so by adding 2 months to it to reach a final starting point of 78 months’ imprisonment.

40.  Mr To pleaded guilty in good time for which he shall be given the customary 1/3 sentencing discount.  There are no other mitigating factors of substance that could reduce his sentence further.  For the avoidance of doubt, a previous clear record counts for little in this type of case.

41.  As the last step in the Herry Jane Yusuph approach, I take a step back to see if the resulting sentence thus obtained is fair, just and balanced in the overall circumstances of the offence and the offender.  In this case, there are a large number of plastic bags containing a sizeable amount of ketamine and a smaller amount of cocaine.  I am satisfied that the resulting sentence fits the above description even for a first offender.

(Mr To, please stand)

42.  The sentence for Mr To is 52 months’ imprisonment.