HKSAR v. YIP WAI KWAN

HCCC 110/2025

[2025] HKCFI 2756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 110 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of trafficking in dangerous drugs[1] before Magistrate Mr. LAM Tsz-hong, admitted to the Summary of Facts and was committed, on 27^th March 2025, to the Court of First Instance for sentence. He confirmed his pleas and admissions before me and the convictions were duly recorded.

2.  Particulars of count 1 are that the defendant, on 18^th October, 2023, outside Room 95, 3^rd Floor, Block A, Manning Industrial Building, Nos.116-118 How Ming Street, Kwun Tong, unlawfully trafficked in a dangerous drug, namely 20.2 grammes of a solid containing 17.5 grammes of ketamine.

3.  Particulars of count 2 are that he on the same day, at Room 95 of the same building, unlawfully trafficked in dangerous drugs, namely, 355 grammes of a solid containing 303.68 grammes of ketamine; 60.4 grammes of a solid containing 53.9 grammes of cocaine; and 67.4 grammes of a crystalline solid containing 63 grammes of methamphetamine hydrochloride (commonly known as ‘ice’).

FACTS

4.  Police officers conducting an anti-narcotics operation outside Room 95 on the charge date intercepted the defendant at about 6:18pm when he came out of the room.  Upon search, 1 transparent resealable plastic bag with 30 transparent resealable plastic bags inside containing the ketamine in count 1 were found from his right front jeans pocket.  He also had $1,823 in cash and an iPhone on his person.

5.  The defendant was arrested and he claimed under caution that the drugs belonged to himself.

6.  The police searched Room 95 and found the following items on top of a table:

(a) One plastic box containing one piece of plastic tube and 345 grammes of a solid containing 295 grammes of ketamine;

(b) One plastic box containing 4 transparent resealable plastic bags containing a total of 47.8 grammes of a solid containing 43.1 grammes of cocaine; and 80 transparent resealable plastic bags containing a total of 12.6 grammes of a solid containing 10.8 grammes of cocaine;

(c) One plastic box containing 5 transparent resealable plastic bags containing a total of 67.4 grammes of a crystalline solid containing 63 grammes of methamphetamine hydrochloride; and 15 transparent resealable plastic bags containing a total of 10 grammes of a solid containing 8.68 grammes of ketamine;

(d) 3 bundles of empty transparent resealable plastic bags;

(e) 3 heat sealers;

(f) 2 electronic scales, one of which was found to have traces of a solid containing ketamine and cocaine; and

(g) 1 plastic spoon which was found to have traces of a solid containing ketamine and cocaine.

7.  The above dangerous drugs form the subject matter of count 2.

8.  The defendant was cautioned again for trafficking in those drugs, and he claimed that they all belonged to him and that he intended to sell them.

9.  The defendant was brought to his residence where nothing suspicious or illicit was found.

10.  The total estimated street value of all the dangerous drugs seized was HK$285,374 with a breakdown as follows:-

(a) ketamine: HK$182,347;

(b) cocaine: HK$64,205; and

(c) methamphetamine hydrochloride: HK$38,822.

PREVIOUS CONVICTION

11.  The defendant was of previously clear record.

BACKGROUND AND MITIGATION

12.  The defendant was born in December 2004 and is 20 years old.  He was 18 at the time of the offences, and was living with his mother.  

13.  Ms. Emma Tsang, counsel for the defendant, fairly accepted that given that the defendant had intended to sell the drugs found on him and in the room, his culpability would be that of an actual or direct trafficker, and the sentence would be higher than that of a mere courier or storekeeper.

14.  Ms. Tsang referred to the letters in mitigation written by the defendant’s mother and elder sister, and pointed out that they all consider him as a filial and caring person, who had gone astray, partly due to a lack of guidance.  They stress that the defendant is good-natured and believe that he is committed to contributing positively to society in the future, and that he has their full support.

15.  Ms. Tsang told the court that the defendant has taken courses in basketball coaching, hairstyling and computing skills during his present remand, and he is looking into studying for the Hong Kong Diploma of Secondary Education examinations.

16.  Lastly, Ms. Tsang can see that the defendant has deeply reflected his mistakes, and he feels heavy-hearted for putting his family in such a difficult position.  He has learned his lesson and is determined to change for the better and vows not to re-offend.

SENTENCING

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

18.  The prosecution had chosen to charge the defendant with 2 separate offences because the seized drugs were found at two different locations.  However, it is obvious that the defendant’s possession of the drugs on his person and the drugs in Room 95 are directly connected, and he will be sentenced as if he had trafficked in all the dangerous drugs on one single occasion[2].

19.  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

20.  For the 321.18g of ketamine, 63g of ‘ice’, and 53.9g of cocaine, the applicable guideline tariff bands are, respectively, “9 to 12 years”, “7 to 11 years”, and “8 to 12 years”.

Step 2: The defendant’s role and culpability

21.  Given the defendant’s admission that all the drugs in the room belonged to him, and given the fact that multiple empty plastic bags and tools typically used for packaging drugs were found in the room, the only reasonable inference must be that the defendant had engaged in the packaging of the seized drugs inside the room.

22.  Furthermore, he had admitted to intending to selling the drugs he was in possession of, making him an actual or direct trafficker.

23.  For the two features above, I find the defendant’s culpability higher than that of a mere courier or storekeeper, and a notional starting point that is higher than the arithmetical starting point would be required to properly reflect the added culpability.

Step 3: The relevant band within the guidelines

24.  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

25.  On the basis of all 438.08g of narcotics were the more potent drug of ‘ice’, any combined starting point before taking into consideration any aggravating factors that is above 16 years  4 months would be regarded as absurdly high.

CONVERSION TEST

26.  If the ketamine and cocaine are converted into ‘ice’ that would yield the equivalent individual sentences, the total converted quantity of ‘ice’ would be 132.74g, which would have a notional starting point of 12 years 1 month.

RATIO TEST

27.  Based on the proportion of the different drugs involved, the sentence should be about 11 years 10 months.

THE COMBINED NOTIONAL STARTING POINT

28.  Having regard to the above test results, taking into consideration the defendant’s role and culpability, I will adopt a combined starting point of 12 years 9 month’s imprisonment, which is 8 months higher than the sentence would be upon an arithmetical application of the guideline tariffs.

Step 4: Aggravating factors

29.  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[3]. Given the quantity involved, but bearing in mind the already lengthy sentence, I will enhance the sentence by 3 months, taking the combined starting point to 13 years.

Step 5: Mitigating factors

30.  I note that the defendant was 18 years old when he committed the offences.  First of all, his age would not put him into the category of ‘extreme youth’.  Secondly, it is trite law that features such as relative young age would pale into insignificance in serious drug trafficking cases[4] as mitigating factors.  As such, the only mitigating factor is the defendant’s timely guilty pleas, for which he will be given the full one-third discount.

Step 6: Totality

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

FINAL SENTENCE

32.  The combined final sentence is 8 years 8 months’ imprisonment after plea for the two counts.

33.  To achieve this combined sentence, I will sentence the defendant to 3 years’ imprisonment on count 1 after plea (4.5 years starting point); 8 years’ imprisonment on count 2 after plea (12 years starting point), and order 8 months of the sentence in count 1 to be served consecutively to the sentence in count 2, the balance concurrently.