HKSAR v. MO CHOR KIN

HCCC 139/2026

[2026] HKCFI 4158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 139 OF 2026

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant had pleaded guilty to a count of trafficking in dangerous drugs. The Particulars of Offence charged him on the 26th day of February 2024, at Cherry Street Tunnel, No. 72 Cherry Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely, 28.21 grammes of a mixture containing 22.45 grammes of heroin hydrochloride and 5.67 grammes of a crystalline solid containing 5.63 grammes of methamphetamine hydrochloride.

The amended Summary of Facts reads as follows.

On 26 February 2024 at around 6 am, the police were conducting anti-crime patrol at Cherry Street Tunnel, No. 72 Cherry Street, Mong Kok. During the patrol, the police noted the defendant was acting furtively and suspiciously, and immediately turned away as the police approached him. The police thus intercepted the defendant.

Upon checking the defendant’s Hong Kong ID with the system, it was revealed that the defendant was listed as wanted for another case of possession of a dangerous drug.

At around 6.01 am, defendant was escorted to the Mong Kok Police Station for further investigations. At around 6.26 am, a body search was conducted on the defendant at the search room of the Mong Kok Police Station. Upon search, the following were discovered in a zipper bag hidden at the intergluteal cleft area of the defendant:

(1) Two packets (consisting of plastic wrappings) and two plastic bags containing a total of 28.21 grammes of a mixture containing 22.45 grammes of heroin hydrochloride; and

(2) Four plastic bags containing 5.67 grammes of a crystalline solid containing 5.63 grammes of methamphetamine hydrochloride.

The total street value of all the dangerous drugs seized was around $25,930.

At around 6.45 am, the defendant was arrested for the charge of trafficking in dangerous drugs. Under caution, the defendant stated that he purchased that packet of dangerous drugs for self-consumption. Upon a further body search, a mobile phone with a SIM card therein and a key and a total of $2,130.20 were seized.

In the subsequent video-recorded interview, the defendant remained silent. No house search was conducted as the defendant had no fixed abode.

The defendant now admits and accepts that at the material time of the offence, he had knowledge of 22.45 grammes of heroin hydrochloride and 5.63 grammes of methamphetamine hydrochloride seized and was knowingly in possession of all the said dangerous drugs seized for the purpose of unlawful trafficking in their entirety.

The defendant is 61 years old now. He was educated up to secondary schooling Form 1 level. He was a cleaner prior to the present remand and was single.

He had many previous convictions, including possession of dangerous drugs and trafficking in dangerous drugs. He started to run into trouble with the law since 1988, when he was about 24 years old. Since then, he is in and out of prison because of various convictions, as I said, involving drugs. He was last discharged from prison for an offence of possession of dangerous drugs on 26 April 2025.

You were found in possession of heroin and ‘Ice’, and the quantity of ‘Ice’ is not insignificant. In sentencing you, I would adopt a combined approach. I take heroin, which is more in terms of quantity, as the base drug. For heroin of 10 to 50 grammes, the sentencing band is 5 to 8 years. For 22.45 grammes of heroin hydrochloride, pure mathematics is that it is 5 years and 11 months for that quantity of heroin.

I should now decide to what extent that 5 years and 11 months should be enhanced in view of, as I said, not insignificant quantity of ‘Ice’. The quantity of ‘Ice’ in this case is 5.63 grammes. According to the guidelines, up to 10 grammes of ‘Ice’, one is looking at the sentencing band of 3 to 7 years.

You are found trafficking in two potent drugs of significant quantities. In the case of Islam SM Majharul, reported in [2020] 3 HKLRD 146, in the judgment of the Court of Appeal, paragraph 25, the Court of Appeal has this to say:

“There may also be cases where the sentencing court can combine the quantities of the two different drugs and calculate the starting point according to the sentencing guidelines of the base drug with appropriate adjustment. However, this will usually occur when the respective sentencing guidelines of the drugs involved are very similar, such as the guidelines for heroin/cocaine and ‘Ice’.”

As I said, in this case, it involves heroin and ‘Ice’. So according to what the Court of Appeal has said, it is appropriate to combine the quantities together and calculate the starting point with appropriate adjustment.

Now, adding up the quantities together yielded a figure, 28.08. If I use this quantity and use heroin as the base drug, one is looking at a sentence, pure from an arithmetic point, is 6 years and 4 months or about 6 years and 4 months.

Mr Chan has done a calculation known as the ratio test, which the prosecution did not take issue with and yields a figure of 6 years and 8 months.

In the recent Court of Appeal case of Yau Kai Fung, CACC 208/2024, the Court of Appeal had this to say, paragraph 41 and 42:

“The ratio test is appropriately deployed in a secondary role as a cross check. When properly applied, it uses, rather than displaces, the drug specific guideline structure. It is less complex and elaborate than the conversion test, and more precise and structured than the absurdity test. It may assist the court in testing the provisional notional sentence for internal coherence and consistency with the underlying guideline bands. However, it should not be treated as a substitute for the guideline-based evaluative exercise required at Steps 1 to 3.

The ratio test nevertheless has limitations and must remain only a cross check... In light of the structured approach set out in Herry Jane Yusuph and the revised sentencing guidelines in Huang Ruifang (No. 3), the absurdity and conversion test no longer serve any useful or principled purpose as cross-checks; the ratio test, while conceptually straightforward and consistent with the differentiated guidelines for hard and soft drugs, is to be used only in that secondary role.”

I decided to adopt the notional starting point of 6 years and 8 months as suggested by Mr Chan. In adopting that notional starting point, I have accepted that the defendant is a courier.

The defendant has an appalling record. As I said earlier, he started to commit offence at the age of 24 years old, and his first conviction is possession of dangerous drugs. And on that occasion, he was given a chance by the court and was imposed a 12-month probation order only. He did not treasure the chance given to him by the court. And since then, he committed a number of crimes, involving on 18 occasions for possession of dangerous drugs and on five occasions for trafficking in dangerous drugs.

In Lee Ming Ho, CACC 130/2019, the Court of Appeal had said in paragraph 70:

“Where the trafficker had previously been convicted of trafficking in dangerous drugs, which is plainly a matter relating to the particular offender that calls for an enhancement of sentence within the exercise of the sentencing judge’s discretion. Although it could conceivably be argued that such a factor reflects on the offender’s culpability, the argument is somewhat strained and it is better understood as a separate factor, which is capable of aggravating the sentence of an offender who has not learnt his lesson and repeated the offence, thus requiring a significant element of personal and public deterrence. That said, there is no warrant for any specific prescribed numerical enhancement for this factor: this is a matter that should properly be left to the discretion of the individual sentencing judge based on the circumstances of the offence and the offender.”

Not only you had an appalling record, in fact, according to the information provided to me this morning, you were stopped by police on 27 November 2023 for an offence of possession of a dangerous drug, which is the latest conviction now in your record. However, after you were stopped, you were let go by the police, for a reason best known to the police officers.

Although you were let go by the police on that occasion, you were subsequently wanted by police for that offence and was put on the wanted list. While you remained as a fugitive, you were stopped and arrested by police for the present offence. This indicates that you will not stop committing offence, in particular dangerous drugs offence, unless you are put behind bars.

For this aggravating factor, I decided to enhance the notional starting point by 10 months. So the starting point I adopt finally is one of 90 months.

Other than your plea of guilty, I found no mitigation in this case. I will give you the full one-third discount for your early plea. Thus, the sentence I pass on you today for this offence is one of 5 years’ imprisonment.