HKSAR v. LI KWOK FAT

HCCC 452/2024

[2025] HKCFI 1645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 452 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs[1] before Magistrate Ms. Minnie Wat, admitted to the summary of facts and was committed, on 30^th December 2024, to the Court of First Instance for sentence. He confirmed his plea and admissions before me and the conviction was duly recorded.

2.  Particulars of the charge are that he on 17^th September, 2023, at a private car, registration number WC 9420, parked outside No. 23 Wong Chuk Street, Sham Shui Po, Kowloon, unlawfully trafficked in dangerous drugs, namely 12.3 grammes of a solid containing 10.4 grammes of ketamine, 8.81 grammes of a crystalline solid containing 8.81 grammes of methamphetamine hydrochloride and 1.63 grammes of a solid containing 1.44 grammes of cocaine.

FACTS

3.  The defendant was spotted by patrolling police officers at around 9:40am on the charge date, acting furtively in the driver seat of WC 9420 parked on the street.  Upon search, the following dangerous drugs were found from different parts of the car:

Inside the storage between the driver seat and front passenger seat

(a)  A resealable plastic bag containing 0.64 grammes of a crystalline solid containing 0.64 grammes of methamphetamine hydrochloride (E1);

Inside the storage in front of the driver seat

(b)  6 resealable plastic bags (5 of them contained in a plastic bag)  containing a total of 1.63 grammes of a solid containing 1.44 grammes of cocaine (E2);

Underneath the carpet under the driver seat

(c)  A brown envelope (marked with words “4 大 32細“)  containing 5 resealable plastic bags (marked with words “N13”)  containing 8.17 grammes of a crystalline solid containing 8.17 grammes of methamphetamine hydrochloride (E3);

Underneath the carpet under the left rear passenger seat

(d)  A paper bag (printed with words “綠茶”)  containing:

(i)  3 resealable plastic bags (marked with “14”)  containing a solid (E4);

(ii)  A resealable plastic bag containing a resealable plastic bag (marked with “11”)  containing a solid (E5);

(iii)  A resealable plastic bag (marked with “20 細香”)  containing 5 resealable plastic bags (marked with “14”)  containing a solid (E6);

*E4-E6 are in total 9 resealable plastic bags containing 12.3 grammes of a solid containing 10.4 grammes of ketamine; and

(iv)  An empty resealable plastic bag (marked with “5 中香”).

4.  The defendant was arrested and claimed under caution that the drugs were for his own consumption. He exercised his right to silence in the subsequent video recorded interview, only claiming that he borrowed the car from an unknown friend in September 2023.

5.  The total estimated street value of the drugs was HK$12,149 (as cocaine powder)  or HK$12,462 (as crack cocaine).

6.  Through his admission to paragraph 9 of the Summary of Facts, the defendant had admitted that, at all material times, he knowingly possessed all the dangerous drugs seized from the car for the purpose of unlawful trafficking.  

PREVIOUS CONVICTION

7.  The defendant has 12 convictions from 11 court appearances.  He was convicted of simple possession of dangerous drugs in 1998 and 1999 for 6 times, and then in 2003 and 2009, and once for possession of Part I poison.  His last 3 convictions were all for gambling in a gambling establishment when he was fined. His last conviction is dated 26^th August 2022.

BACKGROUND AND MITIGATION

8.  The defendant was born in mainland China in March 1979 and is now 46 years old.  According to his antecedent statement, he was educated up to primary 6 level, and was working as a construction worker at the time of arrest.  He claimed to be a drug addict, and lives at Kwai Shing Estate with his wife.

9.  Mr. Kwan, counsel for the defendant, told the court that the defendant became addicted to dangerous drugs at a young age, but he had largely stayed clean since his discharge from DATC in 2009, working as a scaffolding worker earning about $1,500 per day.  He had worked hard and was promoted to become a supervisor.

10.  The defendant suffered injuries in an industrial accident in 2018, and work was hard to come by during the pandemic and he was in great financial difficulties.  The resolve to reform was chipped away and eventually led to his relapse into drug usage, and the commission of the present offence.  He seeks leniency and promises to start afresh after serving his sentence.  

SENTENCING

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

12.  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 Hii Siew Cheng [2009] 1 HKLRD 1 are applied as follows.  

Step 1: The applicable guideline tariff bands

13.  For the 10.4g of ketamine, 8.81g of ice, and 1.44g of cocaine, the applicable guideline tariff bands are, respectively, “4 to 6 years”, “3 to 7 years”, and “2 to 5 years”.

Step 2: The defendant’s role and culpability

14.  It is not clear from the Summary of Facts whether the defendant was delivering the drugs to consumers or to someone next in line of the drug trafficking operation.  The facts alone would not allow me to infer that he was acting as more than a courier.  As such, he will be given the benefit of the doubt and be sentenced for the less serious role of a courier who had not been taking part in the direct trafficking of the drugs.  

Step 3: The relevant band within the guidelines

15.  Based on my finding of the defendant’s role and culpability as a courier, the corresponding notional starting points for the ketamine, Ice and cocaine are, respectively, 4 years, 6 years 6 months, and 2 years 5 months.

16.  Since three 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

17.  On the basis of all 20.65g of narcotics were the more potent drug of Ice, any combined starting point above 7 years 9 months would be regarded as absurdly high.

CONVERSION TEST

18.  If the ketamine and cocaine are converted into ice that would yield the equivalent sentences, the total converted quantity of ice would be 11.36g, which would have a notional starting point of 7 years 1 month.

RATIO TEST

19.  Based on the proportion of the different drugs involved, the sentence should be about 6 years.

THE COMBINED NOTIONAL STARTING POINT

20.  Having regard to the above test results, taking into consideration the defendant’s role and culpability as a courier, I will adopt a combined starting point of 7 years 3 months’ imprisonment.

Step 4: Aggravating factors

21.  The defendant trafficked in 3 different types of drugs and it is trite law that trafficking in more than one variety of dangerous drugs is an aggravating factor, because the trafficker will be able to cater to a wider market[2]. Given the quantity involved, I will enhance the sentence by 6 months, taking the combined starting point to 7 years 9 months.

Step 5: Mitigating factors

22.  The only mitigating factor is the defendant’s timely guilty plea, for which he will be given the usual one-third discount.  

Step 6: Totality

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

FINAL SENTENCE

24.  The final sentence is 62 months, or 5 years 2 months’ imprisonment after plea.