HKSAR v. CHOY SAI YU

DCCC 738/2024

[2026] HKDC 226

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 738 OF 2024

————————

————————

————————————————

REASONS FOR SENTENCE

————————————————

1.  Mr Choy pleaded guilty before me to Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 1 March 2024, on a private car bearing registration mark VX811, outside No 375 Shanghai Street, Yau Ma Tei, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 7.28 grammes of a crystalline solid containing 5.94 grammes of methamphetamine hydrochloride.

Facts admitted by Mr Choy

2.  On 1 March 2024, at 2105 hours, a private car VX811 was parked outside No 375 Shanghai Street, Yau Ma Tei.  A male nicknamed Lo Yiu was seated at the front passenger seat.  A patrolling constable PW1 approached Lo Yiu for enquiry and a body search.  No incriminating item was found.  At this time, Mr Choy walked towards the driver’s side of the vehicle.  PW1 intercepted Mr Choy for enquiry and conducted a body search.  No incriminating item was found.

3.  PW1 then conducted a search of the vehicle in front of Lo Yiu and Mr Choy.  Inside the sun visor above the driver’s seat, PW1 found one transparent resealable plastic bag containing (a) one resealable plastic bag containing 0.60 gramme of a crystalline solid containing 0.35 gramme of methamphetamine hydrochloride (ICE), and (b) 5 blue plastic bags containing a total of 6.68 grammes of a crystalline solid containing 5.59 grammes of ICE.

4.  Mr Choy was arrested for possession of dangerous drug.  Under caution, he said he possessed the ICE for his own consumption.

5.  House search was conducted at Mr Choy’s residence in Yuen Long.  No incriminating items were found.

6.  Next day, a VRI was conducted with Mr Choy in which he stated:

(a) The evening prior to the incident, as he was disqualified from driving, he asked his neighbor and friend Ah Keung to drive him and Lo Yiu to Yau Ma Tei Fruit Market; Ah Keung agreed; upon arrival at Shanghai Street, he and Ah Keung alighted and went to buy fruit;

(b) The ICE belonged to him; he purchased them for $3,000 from Ah Fung at Kam Tin Park two days ago on 28 February 2024; he placed the ICE in the sun visor; they were bought for his weekly consumption;

(c) Before departing for Yau Ma Tei, Lo Yiu told him on the phone he wanted to buy fruit too; so he asked Ah Keung to drive to Tuen Mun to pick up Lo Yiu first; Ah Keung did so; and

(d) The vehicle belonged to his wife who resided in the Mainland; she left the key to him.

7.  The total estimated street value of the ICE in this case was about $8,473.

8.  Mr Choy now admits that at all material times, he possessed the ICE in this case for the purpose of unlawful trafficking.

Criminal record

9.  Mr Choy has 18 previous convictions 7 of which related to dangerous drug though not of trafficking.

Antecedents

10.  Mr Choy is aged 42 (40 at the time of the offence), educated to F2 level, was a construction site worker.  He was last discharged from prison on 27 November 2023.  Mr Choy is single and is living with his family.

Mitigation

11.  Mr Jeffrey Lai of counsel mitigated on behalf of Mr Choy.  The following is a summary of the mitigation submissions.

12.  Mr Choy is single and is a construction site worker earning around $15,000 per month.

13.  The relevant sentencing guideline is set out in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.  For trafficking ICE in the amount of up to 10 grammes, an appropriate starting point shall be 3-7 years.  In this case, there are 5.94 gramme of ICE.  The ordinary starting point will be roughly 64.5 months.

14.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal stated that if the trafficker intends to self-consume all or part of the DD seized, the discount he could get will be in the region of 10-25% from the starting point, and of course this shall be judged on a case by case basis.  In that case, the appellant alleged that more than half of the DD was for self-consumption; the sentencing judge gave him a discount of 10%.

15.  Mr Choy pleads guilty on the basis that he was going to share the drug with his friends, and that a substantial part will be consumed by himself.  Mr Lai understood that prosecution would dispute the claim of self-consumption and submitted that Mr Choy would be willing to give evidence to support that claim.

16.  Mr Lai then called Mr Choy to testify under oath/affirmation.

Summary of evidence regarding self-use

Mr Choy

17.  Upon entry to Lai Chi Kok Reception Centre, Mr Choy’s urine was tested positive for amphetamine.  He has been using drug for 10 years leading to hallucination.  His first possession conviction was in 2007 when he was aged 23.  Even in his teens, he used ketamine, cocaine, ICE and ecstasy.  He has previously been sentenced to detention in DATC after being convicted of possession of cocaine, ICE and ketamine.

18.  He purchased his ICE pots in Temple Street, Yau Ma Tei.  He consumed a maximum of one gramme of ICE each time.  In relation to the drug seized, he intended to use most of it for self-consumption and the rest to share with friends.

19.  The uniformed Sgt at the scene of arrest reached a deal with him such that if he admitted to the possession of the drug, the Sgt would throw away two Ice-pots found in the car so he would face one less charge.

20.  Under cross-examination, he said that he had consumed 2 grammes a day, almost everyday; that because he took too much in 2017-2018, he had hallucinations which led him to see a psychiatrist.

21.  Mr Choy denied that he went to Yau Ma Tei Fruit Market to deliver the drug ICE.  He denied the drug seized from the car was drug which he was to deliver to others.

Sgt 33488

22.  Prosecution called this witness in reply to the allegation of Mr Choy that there was a deal between him and the police with the result that two Ice-pots at the scene were thrown away.

23.  The Sgt denied what has been put to him by Mr Lai on behalf of Mr Choy.

Sentence

24.  I shall follow the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 for sentencing an offender of trafficking in a dangerous drug.

25.  As urged by Mr Lai and in line with the tariff, I adopt a starting point of 64.5 months’ imprisonment.

26.  Mr Choy’s case was that he was not a courier or storekeeper.  Apart from the substantial portion of dangerous drug he claimed was for self-use, he claimed he was going to share the rest with his friends.  In other words, for the latter portion, his case is he would be engaging in social trafficking. Although not as bad as actual trafficking for profit, what Mr Choy claimed he would do would be a dissemination to others for their consumption which was a corruption of their bodies if not also their minds.

27.  I invited parties to file written submissions on whether, under the regime of Herry Jane Yusuph (supra), the role and culpability of a social trafficker would be more or less or equally severe as a courier/storekeeper to whom the standard tariff sentence applies.

28.  Both sets of submissions came back with the same submission – that the sentence of a social trafficker should be no more or less severe than the sentence suitable for a courier/storekeeper.  I accept this submission for the reasons stated in the written submissions.

29.  Regarding the mitigating factor of self-consumption, having heard the evidence and submissions by the parties, I am satisfied on the balance of probabilities that a significant proportion of drug found was for Mr Choy’s own consumption, and the rest for social trafficking.  The finding of self-consumption is consistent with the urine test result and his past criminal records of possession and not trafficking.

30.  As regards that part of the drug not intended for self-consumption, there is insufficient evidence in any event to suggest that Mr Choy was engaged in actual trafficking or any higher role.

31.  In respect of the side issue of disposal of Ice-pots, I am not satisfied in the least what Mr Choy alleged is true.  The evidence of the Sgt was that they would in any event arrest Mr Choy for possession and not trafficking and this is fully borne out by the facts admitted by Mr Choy – that he was arrested merely for possession.  An arrest for trafficking would be more in line with what Mr Lai is suggesting – that the police were bent on building a stronger case of trafficking against Mr Choy.

32.  Having weighed everything in the round, I will give Mr Choy a discount of 21% for his self-consumption.  For this reason, his starting point is reduced to 51 months’ imprisonment.

33.  Although Mr Choy has a number of possession convictions, he has never been convicted of trafficking.  I shall not treat him as a repeated offender.

34.  Mr Choy pleaded guilty in good time.  He shall be entitled to the customary 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentence reduction.

35.  I am satisfied the sentence thus resulting is a fair, just and balanced one.

(Mr Choy, please stand)

36.  The sentence for Mr Choy is 34 months’ imprisonment.