HKSAR v. KONG KA MAN

HCCC 235/2025

[2026] HKCFI 2663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 235 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 3 counts of trafficking in dangerous drugs[1] before Magistrate Ms. Minnie Wat, admitted to the Summary of Facts and was committed, on 10 July 2025, to the Court of First Instance for sentence. She confirmed her pleas and admission before me and the convictions were duly recorded.

PARTICULARS

2.  Count 1: The defendant, on 5 September, 2023, at Chung Sun Street near the junction of Ma Tau Kok Road, Kowloon City, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 3.51 grammes of a solid containing 1.30 grammes of cocaine.

3.  Count 2: The defendant, on the same day as count 1, on 4^th Floor, No. 14 Hing Yin Street, Kowloon City, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 7.01 grammes of a solid containing 5.6 grammes of cocaine and 14 grammes of a crystalline solid containing 14 grammes of methamphetamine hydrochloride (commonly referred to as “ICE”).

4.  Count 3: The defendant, on the same day as counts 1 and 2, at the same location as in count 2, unlawfully trafficked in a dangerous drug, namely, 3.83 grammes of a solid containing 3.08 grammes of cocaine.

FACTS

Count 1

5.  At approximately 7 p.m. on 5 September 2023, plainclothes police officers carried out an anti-narcotic operation near Ma Tau Kok Road at the intersection with Chung Sun Street, Kowloon.

6.  At around 7:09 p.m., Woman Police Constable 27425 (“PW1”)  saw the defendant hurriedly walking outside 13-15 Chung Sun Street and, finding this suspicious, approached and stopped her.

7.  Upon search of the defendant, PW1 discovered and confiscated a yellow paper bag from the defendant’s hand.  Inside the bag was a black paper box containing 6 sets of playing cards and two pink paper boxes (Exhibits 26 and 27).  Exhibit 27 held a piece of tissue wrapped around ten plastic bags, which together contained 3.51 grams of a solid substance with 1.30 grams of cocaine.  The defendant was arrested, and she claimed under caution that the 10 packets of coke were for her own consumption.

Count 2

8.  While police officers were still conducting enquiry with the defendant on Chung Sun Street, other police officers, on the strength of a search warrant, broke into the defendant’s residence nearby at 4^th floor, No. 14 Hing Yin Street (“the unit”)  for investigation.  There were 2 CCTV cameras installed outside the entrance of the unit.  Before the police were able to enter, a man was seen to have thrown something out of a window of the unit onto Hing Yin Street.  The things were recovered and found to be a number of plastic bags that contained the dangerous drugs particularized in count 2.

9.  Upon entry, a man was found inside the unit.  The defendant and the recovered drugs were brought back to the unit.  The defendant denied knowledge and possession of the drugs that were thrown out.  

Count 3

10.  The unit was searched and the drugs particularized in count 3 were found from a wooden rack in the man’s bedroom and on the desk in the defendant’s bedroom.  Objects associated with trafficking were also found on the cabinet in the man’s bedroom, including an electronic scale, large quantity of re-sealable plastic bags, spoons and plastic straws.  The defendant’s DNA was later found from the scale and the spoons.

11.  In September 2023, the total estimated street value of all the dangerous drugs seized in this case was between HK$22,716 and HK$25,470.

12.  The defendant, through her admission to the Summary of Facts, had admitted and accepted that she was knowingly in possession of all the dangerous drugs found on her and from the unit for the purpose of unlawful trafficking.  

PREVIOUS CONVICTIONS

13.  The defendant has 3 convictions arising out of 2 cases.  She was first convicted of one charge of possession of pipe or equipment for using dangerous drugs on 2 December 2019 and was put on 12 months’ probation.  She was in breach of that Probation Order and was, in substitution, given a 2-month sentence, which was ordered to be suspended for 18 months.  She was also sentenced to a concurrent sentence of 8 months’ imprisonment for one charge of possession of dangerous drugs on the same occasion, which was also ordered to be suspended and for the same period of 18 months.  The defendant was last discharged from detention at the DATC pending her sentencing in the possession of dangerous drugs case.  The defendant was in breach of the above suspended sentences when she committed the present offences.

BACKGROUND AND MITIGATION

14.  The defendant was born in Hong Kong in January 1991 and is now 35.  Her twin son and daughter were born in October 2016 and are now 9 years old.  She was educated up to Form 3 level, and had worked as a salesperson since she was 16.

15.  She started using cocaine in 2008 due to peer influence.  She also resorted to drugs when her elder sister committed suicide in 2009, which caused their father to suffer from depression requiring psychiatric treatment, due to the immense stress she was under.

16.  The father of the twins was imprisoned soon after their birth, and the defendant had to look after them with the help of her parents.  She had to stop working and relied on CSSA for a few years.  

17.  Ms. Cheng, counsel for the defendant, tells the court how the pressure of living and the changes in her life had, again, caused her to resort to cocaine for “occasional relief”, and eventually, addiction and her conviction for her first drug related offence in 2019, when she was put on probation.

18.  The defendant resumed work as a waitress in 2022 when her twins started primary school.  This was when she was convicted of possession of cocaine and received a suspended sentence.  

19.  The defendant’s addiction “became more severe thereafter”.  To secure a steady supply of drugs at a discount, she agreed to deliver drugs for her “godfather”, being the man referred to in the Summary of Facts.  The defendant knew that he was a dealer in drugs, and that he had rented the unit, which was used as a divan.  

20.  The defendant told Ms. Cheng that she had visited the unit on a few occasions to consume cocaine.  The man offered the defendant a room there, in return for her assistance in delivering the drugs.  The defendant continued her work as a waitress while making the deliveries before or after work.  She would stay in the unit a few days per week to help the man, and would return to her parents’ home in Tai Po to see her parents and the twins on weekends.

21.  According to Ms. Cheng, the defendant was delivering drugs for the man when she was intercepted on the charge date.  Ms. Cheng confirmed in her written submissions that the defendant had, “In subsequent video recorded interviews, she frankly admitted that she was knowingly in possession of the drugs seized in this case for the purpose of unlawful trafficking.”

22.  Since her arrest, the defendant had cooperated with the police by giving further details of the offences.  During her present remand, she had volunteered her personal information to the Father Wotherspoon campaign, and enrolled in vocational training courses.

SENTENCING CONSIDERATIONS

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

24.  The sentencing approach and tariff bands as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Huang Ruifang [2025] HKCA 234, are applied.  

25.  Although the defendant is being sentenced for 3 charges, given the close physical and temporal proximity of her possession of all the dangerous drugs, she will be sentenced as if she had trafficked in them on one single occasion[2].

Step 1: The applicable guideline tariff bands

26.  For the 9.98g of cocaine and 14g of ICE, the applicable guideline tariff bands are, respectively, “2 to 5 years” and “7 to 11 years”.

Step 2: The defendant’s role and culpability

27.  The defendant claimed in her video recorded interviews that the man who was found in the unit was her godfather and it was he who had rented the unit.  She had been living there with him for a few months, staying there about 4 to 5 days a week, rent free.  She also claimed that all of the drugs were for her self-consumption, a claim that she had since retracted by way of her admission to the last paragraph of the Summary of Facts.

28.  The defendant admitted to weighing and packaging the dangerous drugs.  As such, I find that her role is that of a storekeeper, with a slightly higher level of culpability given her active involvement in the packaging of the drugs.  

Step 3: The relevant band within the guidelines

29.  Based on my finding of the defendant’s role and culpability as a storekeeper, the corresponding notional starting points for the cocaine and ICE are, respectively, 4 years 11 months, and 7 years 3 months.

30.  Since two 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

31.  On the basis of all narcotics were the more potent drug of ICE, any combined starting point above 7 years 11 months would be regarded as absurdly high.  

CONVERSION TEST

32.  If the cocaine are converted into ICE that would yield the equivalent sentence, the total converted quantity of ICE would be 18.99g (being 4.99+14), which would have a notional starting point of 7 years 7 months.

RATIO TEST

33.  Based on the proportion of the different drugs involved, the sentence should be about 7 years 2 months.

THE COMBINED NOTIONAL STARTING POINT

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

Step 4: Aggravating factors

35.  The defendant trafficked in 2 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.  Given the quantity involved, I will enhance the sentence by 2 months, taking the combined starting point to 7 years 9 months.

Step 5: Mitigating factors

36.  I did take note of the defendant’s personal circumstances and find them not to be exceptional, as such, there is to be no discount on this basis[3].  The defendant must have fully understood the power of dangerous drugs over an addicted person when she decided to not only to be a user but also a trafficker, thus taking up the role of a bridge to misery and sufferance for other drug users.  The court would be sending out the wrong message if she is given any reduction in sentence for taking up the role of a storekeeper in order to get cheaper drugs for herself.  

37.  As for her volunteering of her personal information for the Father Wotherspoon campaign, it is clear that the defendant’s commission of the present offences is fundamentally different to situations of foreign domestic helpers being lured into drug trafficking, or foreigners being coaxed into working as ‘drug mules’ for drug traffickers.

38.  The defendant knew her ‘godfather’ well and was even given a room in his unit rent free.  She was getting discounted drugs for helping to weigh and bag and then deliver the drugs.  I do not see how volunteering her information and giving details of her criminal acts would assist much in helping others to avoid being in the same situation.  The defendant had chosen to put herself in such a situation, after the court had repeatedly given her opportunities to reform.  

39.  As such, I will not grant the defendant any discount on her token contribution to the campaign, and the only mitigating factor is the defendant’s timely guilty pleas, for which she will be given the usual one-third discount.  

Step 6: Totality

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

41.  The combined sentence after plea for the 3 counts is, therefore, 62 months, or 5 years 2 months.

42.  In order to achieve that, I sentence the defendant to 5 years 2 months’ imprisonment on each of the 3 counts and order them to be served wholly concurrently.

BREACH OF SUSPENDED SENTENCES

43.  The defendant was in breach of the 2 concurrent suspended sentences that were imposed on her on 27 September 2022, which was about 6 months before the end of the suspension period.  The offences that the sentences had originated from are both drug related.

44.  The consequences of breaching the suspended sentences would have been explained to the defendant at the time when the sentences were passed.

45.  The defendant was well aware, when she chose to traffic in the large quantity of dangerous drugs, that what she did was criminal and that should she be caught she would be in breach of the sentences and be dealt with.

46.  I find that, having considered all the circumstances, it would not be unjust if the sentences are activated.  I also find that there are no exceptional circumstances to cause me to not activate the sentences in full, or to not order them to be served wholly consecutively to the present set of sentences[4].  I have re-applied the totality principle to the subsequent sentence and find that it is still fair, just and balanced.

FINAL SENTENCE

47.  The final sentence is, therefore, 5 years 10 months’ imprisonment.