HKSAR v. CHAN HO AND OTHERS

HCCC 2/2025

[2025] HKCFI 2776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2025

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

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COURT: The 1st defendant pleaded guilty to one charge of trafficking in dangerous drugs and two charges of manufacturing a dangerous drug on 2 January 2025 before a magistrate. On the same day, the 2nd defendant pleaded guilty to one charge of trafficking in dangerous drugs, and the 3rd defendant also pleaded guilty to another charge of trafficking in dangerous drugs. All of them were committed to the Court of First Instance for sentence.

According to the Summary of Facts, at about 9.49 pm on 9 November 2021, police officers saw the 1st defendant alighting from a private car of registration number UP 3181 near The Hermitage at No. 1 Hoi Wang Road in Mongkok, and then the 1st defendant was seen going to the 5th floor of Tower 6 of The Hermitage. As he was stepping out of the lift, he was seen carrying a black plastic bag. He was intercepted by the police. Upon enquiry, he stated that he had come out from Flat 10E on the 10th floor of The Hermitage.

Upon search, the police found from his black plastic bag all the drugs particularised in the 1st charge, that is, 162.13 grammes of cocaine narcotic and 22.6 grammes of ketamine narcotic. The police also found on him two mobile phones, one Octopus card, cash of HK$4,708 and a number of keys including a car key.

At about 10.30 pm, the police used some of the keys found on the 1st defendant to open the door to Flat 10E, that is, Flat E on the 10th floor, Tower 6 of The Hermitage (hereinafter refer to as “the Mongkok flat”). Before the search of the premises, the 1st defendant was arrested for trafficking in dangerous drugs in respect of the drugs found on his person. He stated under caution that he was trying to earn some money, so he received HK$100,000 per month to pack drugs and deliver them.

After the police entered Flat 10E of the Mongkok flat, they found the 2nd defendant inside the flat. The 2nd defendant was searched and the police found on him a cardholder, an Octopus card, a credit card, cash of HK$1,000, four keys and an iPhone.

The flat was searched by the police. They found all the drugs particularised in the 3rd charge and also a large quantity of chemicals and drug‑manufacturing paraphernalia inside the premises.

At that time, the 1st defendant was arrested for manufacturing dangerous drugs, and he stated under caution that he would go up to the flat to dry the cooked drugs and then pack up for distribution.

He was further arrested for another offence of trafficking in the dangerous drugs found in the flat, and he said he had earlier packed the drugs in the flat. He could not finish distributing them so he put the drugs on the tables for distribution next time.

The 2nd defendant was also arrested for manufacturing of and trafficking in dangerous drugs, and he stated under caution that he had only gone up to the flat to consume cocaine.

Later, the police conducted a search of private car UP 3181. From the car they found an Octopus card which could be used to access Tower 2B of Cullinan West, that is, the flat in Sham Shui Po.

At about 11.34 pm on the same day, police officers were ambushing at staircase No. 2 near Flat 40H of Tower 2B of Cullinan West, and they saw the 3rd defendant entering the staircase. Upon seeing the police officers, the 3rd defendant turned around and left. The police revealed their identities and tried to intercept him, yet the 3rd defendant ignored and kept walking. Eventually, at near staircase No. 1, the police told him that he was suspected for committing the offence of possession of dangerous drug. He was also seen touching the electronic lock of Flat 40H (hereinafter refer to as “the Sham Shui Po flat”).

At that time, the 3rd defendant said, “The drugs inside were not mine. That had nothing to do with me. I had never come up. Go away.” Then he hurriedly went into staircase No. 1, trying to push the police officers on the way. He put up a struggle as the officers tried to subdue him. Eventually he was subdued.

The police gained entry to the flat by making a forcible entry, and they found a large number of drug-manufacturing paraphernalia inside the flat as well as all the drugs particularised in the 3rd charge. Also there were a large quantity of chemicals and drug-manufacturing paraphernalia.

Let me clarify. Inside the Mongkok flat, the police found all the drugs particularised in the 3rd charge and a large quantity of chemicals and drug-manufacturing paraphernalia referable to the manufacture of cocaine. And inside the Sham Shui Po flat, that is, Flat 40H, the police found all the drugs particularised in the 5th charge and a large number of drug-manufacturing paraphernalia.

The 3rd defendant was cautioned in relation to the drugs and the paraphernalia found inside the flat. He stated under caution that he was only responsible for clearing the drugs and he had no knowledge about the other matters.

In a video-recorded interview that was conducted later, the 3rd defendant said that he was instructed at about midnight by Ah Tin to clear the ketamine in Flat 40H for a reward of HK$20,000. Ah Tin gave him the password to the flat, and he went to the flat for the first time. Ah Tin told him that the drugs to be cleared were ketamine. Ah Tin also asked him to co-operate with M, but he did not know who M was. He said the Octopus card found on him was used to access the car park, and he had not received the promised reward from Ah Tin yet.

On the other hand, the 1st defendant was subsequently arrested for another manufacturing-of-dangerous-drug offence in respect of the Sham Shui Po premises. Under caution, the 1st defendant said that he also went up to the flat to dry the damp drugs and pack them for distribution.

The government chemist attended and inspected the Mongkok flat, that is, Flat 10E, and it was his expert opinion that the chemicals and the paraphernalia seized at the scene were items commonly associated with the process of converting cocaine hydrochloride to cocaine base, and that they could have involved in the making of cocaine base from cocaine hydrochloride at the scene. He was of the opinion that the flat was involved in the manufacture of cocaine.

The government chemist also attended and inspected Flat 40H, that is, the Sham Shui Po flat. It was his expert opinion that separation and purification of ketamine from a solution mixture had taken place at this scene, and that the flat was involved in the manufacture of ketamine.

CCTV of the different premises revealed that the 1st defendant had between 4 to 9 November 2021 gone to the Mongkok flat on various occasions, and on the day of his arrest, he went to the flat and stayed there for about one hour on the evening of 9 November. The CCTV recording also showed that between 5 and 8 November 2021 the 2nd defendant had also visited the Mongkok flat, and on the day of the incident, he had visited the flat for about one and a half hours before the arrest.

The CCTV recording of the Sham Shui Po flat revealed that the 1st defendant had gone to the Sham Shui Po flat twice. At about 1.30 am on 9 November he stayed there for about four and a half hours. Later, he also went up to that flat at around 9.40 pm. The CCTV recording also recorded that the 3rd defendant went to the Sham Shui Po flat twice at about 12 am and 8 pm respectively on 9 November 2021.

On the other hand, the fingerprint and the palm print of the 1st defendant were lifted on the outside of the oven door of Flat 40H, that is, the Sham Shui Po flat.

The average retail price for all the drugs found in respect of Charge 1 was HK$350,276. The average retail price for all the drugs involved in the 3rd charge was HK$2,787,014, and the retail value of all the drugs involved in the 5th charge was HK$4,752,495.

The 1st defendant now admits that at the material time, he possessed all the drugs seized from him in Charge 1 for the purpose of unlawful trafficking, that he also manufactured cocaine in the Mongkok flat, and he manufactured ketamine in the Sham Shui Po flat at the material times.

The 2nd defendant admits that he possessed all the cocaine and ketamine referred to in the 3rd charge for the purpose of unlawful trafficking.

The 3rd defendant also admits that he possessed the ketamine and the cocaine in the 5th charge for the purpose of unlawful trafficking.

So those are the facts in support of the charges.

The 1st defendant is now 26 years of age. He was unemployed at the time of his arrest, and I was informed by counsel that he used to work as a construction worker. He is single and he resided with his parents and elder sister in a public housing estate. He has a clear criminal record.

The 2nd defendant is now 33 years of age. He is single and he used to live with his family members in a public housing estate.

Going back to the 1st defendant, he has received up to Form 5 education standard.

The 2nd defendant has received up to Form 1 education standard. I was informed that he used to work as a waiter, but at the time of arrest he was unemployed. He has a total of six previous criminal convictions including one conviction for the offence of trafficking in dangerous drug, and for that matter, in January 2011 he was sentenced to 3 years’ imprisonment. He also has one conviction for the offence of trafficking in purported dangerous drug, and he was sentenced on 22 May 2015 to 16 months’ imprisonment. I was informed by counsel that the purported drug was indeed ketamine which is similar to one of the drugs concerned in the present case.

In respect of the 3rd defendant, he is now 29 years of age. He has received education up to Form 3 level. He worked as a financial practitioner at the time of his arrest. He used to live together with his mother at a public housing estate before his arrest. He has a total of three criminal convictions including one conviction for the offence of possession of dangerous drug for which in November 2016 he was sentenced to the detention centre.

In mitigation, defence counsel for all the three defendants, Mr McGowan, urged this court to take into account the fact that all the criminal convictions of the 2nd and the 3rd defendants were not for very serious offences in the past, that they committed the offences because of the financial situation during the time of COVID and they were running out of money, and also they made significant errors of judgment.

In respect of the role of the defendants, counsel submitted that the 1st defendant, even though he was involved in the manufacturing of the drugs in two premises and also the packaging and distribution of the drugs, he was not the boss or the organiser. Also, there was no evidence to suggest that the 2nd or the 3rd defendant was anything more than a simple courier of the drugs.

Counsel urged this court to take into account the principle of totality, and to impose a fair and just sentence for the defendants.

In respect of the 1st defendant, a total of two mitigation letters were submitted, one prepared by his elder sister and the other one prepared by his cousin, both pleading for leniency. And I was provided with some documents showing that after he was remanded in custody, he had made a contribution of $1,800 and $750 respectively in years 2023 and 24 as sort of donation to charity.

In respect of the 3rd defendant, I was informed that he has taken up some courses to try to equip himself with studies whilst he was being detained, and he had applied to put his name into the organ donation register. Nonetheless, I do not see much weight has to be given to those matters as mitigation.

In sentencing the defendants for the offences of trafficking in dangerous drugs, I do bear in mind the approach stated by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as modified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

In respect of the 1st defendant and the fact that he was also convicted of two charges of manufacturing dangerous drug, I do bear in mind the principle that the manufacturing of a dangerous drug is a much more serious offence than the trafficking of dangerous drug. The sentencing court should take into account the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs, the role played by the defendant and the quantity of the paraphernalia found.

In respect of this particular case, for the two manufacturing charges, in the Mongkok flat, in addition to the manufacturing paraphernalia, the police also found 410.52 grammes of cocaine narcotics and 988.55 grammes of ketamine narcotic. I was told and it is the prosecution case that even though the premises was only used for the manufacturing of cocaine product, ketamine, that is, a second kind of drug, was being taken there for storage, and the ketamine was indeed made in the second manufacturing factory in Sham Shui Po.

In respect of the factory in Sham Shui Po, that is the 4th charge of manufacturing, the police, besides all the manufacturing paraphernalia, also found 774.42 grammes of ketamine narcotic and 3.62 kilogrammes of cocaine narcotic. So even though the place was only used for the manufacturing of ketamine, apparently the cocaine being manufactured in the Mongkok flat was also taken to this Sham Shui Po flat for storage.

I would like to turn to the sentencing of the two manufacturing charges faced by the 1st defendant first. In sentencing him for the manufacturing charges, I do bear in mind the principles stated by the Court of Appeal in the case of HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408 in respect of the appropriate starting point for drug-manufacturing offences.

In that case, the Court indicated that if the manufacturing was a one-off rather than continuous incident, then the starting point slightly higher than that for trafficking in the same quantity of drugs might be appropriate, but it shall not be less than 10 years’ imprisonment.

If the manufacturing act was continuous and the workshop was of considerable scale and productivity involving a large amount of chemicals and a not insignificant quantity of high-standard manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial.

In respect of a large-scale, productive and long-running manufacturing workshop where the defendant played an active and important role and an exceptional large amount of drugs was seized, the appropriate starting point should even exceed 30 years’ imprisonment to reflect the seriousness of the offence.

In this particular case, when I consider the manufacturing charges, that is Charges No. 2 and No. 4, it would be fairer for me to take a global view of the matter, that is, to consider both charges together, bearing in mind that even though one kind of drug was manufactured in one place, but the result was that the drug being manufactured in place 1 was being stored in place 2, and the drug being manufactured in place 2 was being stored in place 1. Also I do bear in mind that Charge 2 involved a total of six days that lasted from 5 to 9 November 2021 even though Charge 4 only involved one day, that is, 9 November 2021.

In respect of the scale of production by those two factories, I do bear in mind the total quantity of cocaine and ketamine involved in this case, that is, slightly under 6 kilogrammes of cocaine and ketamine narcotic altogether, not to mention that the cocaine hydrochloride was more than 3 kilogrammes in weight in Charge 5.

So, having taken into account all the circumstances of the two charges, the period of operation especially for Charge 2, the total quantity of the drugs found on the premises, the scale of the operation as revealed by the paraphernalia, and the involvement of the 1st defendant, I consider that the overall starting point for both the 2nd and the 4th charges should be 27 years’ imprisonment. The 1st defendant pleaded guilty to the two manufacturing offences at an early stage, so he is fully entitled to a one-third discount for that matter. So the overall sentence for the 2nd and the 4th charges altogether after the one-third discount should be 18 years’ imprisonment.

As I said, I would take a global view of the matter because those two factories were interrelated. As such I consider that it would be appropriate for me to impose the sentence of 18 years for each of Charge 2 and Charge 4 respectively, and order those two charges to run concurrently to each other. So the total sentence for Charge 2 and Charge 4 against the 1st defendant is 18 years’ imprisonment.

I shall now come back to the trafficking offences committed by all the three defendants. In respect of the 1st defendant, he is also convicted of the 1st charge of trafficking in 162.13 grammes of cocaine narcotic and 22.6 grammes of ketamine narcotic. As I said, I would bear in mind the approach stated by the Court of Appeal in the case of Herry Jane Yusuph. For the quantity of cocaine narcotic involved, on an arithmetic calculation, it would attract a sentence of 11 years’ imprisonment. For 22.6 grammes of ketamine, on an arithmetic calculation, it would attract 4 years and 8 months’ imprisonment.

So, if I adopt the individual approach, the overall sentence would be 15 years and 8 months’ imprisonment which I consider would be unfairly high in the circumstances. I consider that the appropriate approach should be one of the combined approach and I should enhance the sentence by increasing the sentence from that of the base drug.

In this case, cocaine is the more potent base drug and also a higher quantity involved. I would check the result of the combined approach against the absurdity test, conversion test and the ratio test.

Under the absurdity test, if all the drugs seized were cocaine, then the resulting sentence should be 11 years and 7 months’ starting point. And if all the drugs were ketamine, the starting point would be 7 years and 7 months’ imprisonment. Under the conversion test, treating all the drugs as cocaine would result in a starting point of 11 years and 3 months’ imprisonment. And under the ratio test, the starting point would be 11 years and 1 month’s imprisonment.

In deciding the starting point, I do bear in mind the role of the defendant. Even though the 1st defendant was not the boss or the organiser as submitted by counsel, I have taken into account the fact that he was indeed involved in the packaging and the distribution of the drugs in the premises, and the CCTV also captured his previous entries into the premises prior to his arrest.

On the other hand, I also bear in mind the aggravating feature that more than one type of drug was found. That means the drug trafficker was able to cater for a wider market, also the combination of the drugs would have a stronger effect on the drug abusers. So bearing in mind all those circumstances and the role and the culpability of the 1st defendant, I consider that the appropriate starting point for Charge 1 should be 12 years’ imprisonment.

The 1st defendant pleaded guilty to the charge and he is entitled to the full one-third discount. Other than that, I do not see any valid mitigating factor. As such, in respect of the 1st charge, I will sentence him to 8 years’ imprisonment.

As I said, because all the drugs in this case were interrelated and they were products being made in the factories that were subject of the 2nd and the 4th charges, it would only be fair for me to order the sentence in the 1st charge to be served totally concurrent with the sentences in the 2nd count and the 4th count.

So, for the 1st defendant, in respect of the 1st charge, he is sentenced to 8 years’ imprisonment. In respect of the 2nd charge, he is sentenced to 18 years’ imprisonment. In respect of the 4th charge, he is also sentenced to 18 years’ imprisonment. All the sentences are to be served concurrently. The total overall sentence is 18 years’ imprisonment.

In respect of the 2nd defendant, he has pleaded guilty to the 3rd charge of trafficking in dangerous drugs. In this case, he was involved with 410.52 grammes of cocaine narcotic which, on an arithmetic calculation, would result in a starting point of 14 years and 9.7 months’ imprisonment. On the other hand, there was also 988.55 grammes of ketamine narcotic which would attract another starting point of 13 years and 11.3 months’ imprisonment.

If I adopt the individual approach by adding up the starting points together, the overall sentence would be over 28 years’ imprisonment which is unduly long. So again I will use the combined approach and test the result against the absurdity test, conversion test and ratio test. Again I will adopt cocaine as the base drug because it is the more potent drug between the two.

Under the absurdity test, if all the drugs seized were cocaine, the starting point would be 19 years and 7 months’ imprisonment. If all the drugs seized were ketamine, then the resulting sentence would be over 14 years’ imprisonment. Under the conversion test, treating all the drugs as cocaine would result in a starting point of 17 years’ imprisonment. And under the ratio test, the starting point would be 16 years and 9 months’ imprisonment.

I do accept counsel’s submission that the role of the 2nd defendant was merely that of a courier and the mathematical calculation is appropriate for persons such as a courier who is at the bottom of the trafficking hierarchy. So I would adopt 17 years as the appropriate starting point.

I do bear in mind his criminal record. As I have said, he had one conviction for the offence of trafficking in dangerous drug and he was also convicted of the offence of trafficking in purported dangerous drug. It appears to me that he is a persistent trafficker and the sentencing in the previous occasions did not actually deter him from drug activities. As such, I will treat this as an aggravating feature which entitles me to raise the starting point by another year to 18 years’ imprisonment.

The 2nd defendant pleaded guilty to the offence at an early stage and he is entitled to the full one-third discount. So after the one-third discount, he is sentenced to 12 years’ imprisonment in respect of Charge No. 3. So Charge 3, the 2nd defendant, 12 years’ imprisonment.

Coming to the 3rd defendant. The 3rd defendant is convicted of the 5th charge which involves a total of 774.42 grammes of ketamine narcotic, 3.62 kilogrammes of cocaine hydrochloride. To sentence him on the individual charges would result in an overall sentence of over 35 years’ imprisonment which is unduly long. So again I will adopt the combined approach. I will use cocaine as the base drug as it is more potent and much higher in quantity in this case.

Using the combined approach, under the absurdity test, if all the drugs seized were cocaine, the starting point would be 23 years 3.7 months’ imprisonment. If all the drugs seized were ketamine, then the starting point would be over 14 years’ imprisonment. Under the conversion test, treating all the drugs as cocaine would result in a starting point of 22 years 8.7 months’ imprisonment. And under the ratio test, the starting point would be 22 years and 8 months’ imprisonment.

I do bear in mind the role of the 3rd defendant and I accept counsel’s submission that he was merely a courier. However, on the other hand, more than one type of drug was involved. Having taken that into account, I consider that the overall starting point should be 22 years and 9 months’ imprisonment.

Pausing here, in respect of the 2nd defendant, when I adopted the starting point of 18 years, I had also taken into account the fact that two kinds of drugs were involved - if I had not mentioned about that earlier.

Coming back to the 3rd defendant. The appropriate starting point after taking into account his role as a courier and the fact that more than one kind of drug was found, I consider the appropriate starting point should be 22 years and 9 months’ imprisonment. He is entitled to a full one-third discount because of his early plea of guilty. After the discount, he is sentenced to 15 years and 2 months’ imprisonment.

So the sentence on the 3rd defendant for the 5th charge is 15 years and 2 months’ imprisonment.