HKSAR v. CHAU TSZ YEUNG AND ANOTHER

HCCC 124/2024

[2025] HKCFI 1359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 124 OF 2024

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REASONS FOR SENTENCE

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1.  The defendants pleaded guilty to one charge of Conspiracy to Trafficking in dangerous drugs (Charge 1) before Magistrate Mr. Jeffrey Sze and were committed to the Court of First Instance for sentence. They confirmed their pleas and admissions to the summary of facts before me, and their convictions were duly recorded.

2.  D1 alone faces two additional charges of trafficking in a dangerous drug (Charges 2 and 3), which were ordered to be kept on file upon D1’s conviction on Charge 1, not to be proceeded with without the leave of court.  

3.  Particulars of Charge 1 are that, the defendants, between 1^st March and 7^th June 2022, conspired together and with other persons unknown to unlawfully traffic in dangerous drugs, namely methamphetamine hydrochloride and ketamine.

SUMMARY OF FACTS

4.  At around 7:55pm on 7^th June 2022, police officers intercepted D1 at ground floor of Lotus House as he came out of the lift having come down from the 12^th floor.

5.  D1 was carrying a cross-body bag and holding a paper bag, which were later found to contain altogether 2,739g of solids, which contained a total of 2,285g of ketamine.

6.  Under caution, D1 claimed that he was in need of money and so he distributed drugs to make a few thousand dollars.

7.  Police officers then entered Room 1220 on the 12^th floor using a key found on D1, and executed a search warrant issued against the premises.  They found on a folding table next to the main door the following items: a vacuum sealer, a cup, digital scale with battery installed, a pair of working gloves, a bag of gloves, a pair of scissors, marker pen, and a backpack.  

8.  Inside that backpack were 3 transparent plastic bags containing a total of 1,709g of solids which were later found to contain 1,455g of ketamine.  Two of those 3 bags were left opened.  There were also 6 transparent resealable plastic bags containing a total of 5,936g of solid, which were later found to contain 5,892g of methamphetamine hydrochloride (commonly referred to as Ice), as well as 2 paper bags.

9.  Under further caution, D1 claimed that the drugs inside Room 1220 were to be distributed by him for monetary rewards.

10.  Further search of the room led the police to a transparent re-sealable plastic bag on the lower level of a bunk bed with traces of ketamine inside.  D1 said he might have inadvertently left the bag there while dealing with the drugs.  

11.  The total quantity of dangerous drugs found from D1’s person and from Room 1220 were 5,892g of Ice and 3,740g of ketamine, with an estimated street value of $5,838,848.

12.  During subsequent police investigation, D1 claimed that he trafficked in the drugs as instructed by D2.  

13.  D2 was arrested on 8^th June 2022 in a hotel.  A bank card, mobile phone with 2 SIM cards and a phone case were found on D2.  

14.  D1 and D2 claimed in their respective video recorded interviews the following: they became acquainted in February 2022.  In March 2022, D2 received instructions from a “Ko Lo” to collect the backpack found in Room 1220 in Yuen Long, and then to take it to a flat in an industrial building on Castle Peak Road (“the Castle Peak Road Flat”).  The backpack contained around 5kg of Ice in total.  

15.  At D2’s request, D1 accompanied and assisted D2 to bring the backpack to the Castle Peak Road Flat.  They both knew at that time that it was Ice inside.  

16.  Once they had brought the backpack to the Castle Peak Road Flat, with the repacking equipment already there, and in the presence of D1, D2 picked out impurities from the Ice and repacked the drugs into bags according to Ko Lo’s instructions. The two of them then weighed the Ice.  They had visited the Castle Peak Road Flat for 6 to 7 times in total to do the repacking of Ice.  

17.  In late April to early May 2022, D2 told D1 that Ko Lo had offered a lucrative reward for delivering and repacking ketamine.  D1 agreed to join, and D2 passed on D1’s phone number to Ko Lo, and D1 was added to an instant message group.  

18.  D1 received instructions from members of the group to deliver ketamine.  He would also send photos of the ketamine to the group for record.  

19.  Meanwhile, since the tenancy of the Castle Peak Road Flat was expiring soon, on or around 18^th and 20^th May 2022, D1 and D2 moved the backpack, the bags of Ice, and all the drug packaging equipment to Room 1220, which was the residence of a common friend to D1 and D2.  They got a copy of the key for the Room.

20.  Just as when they were using the Castle Peak Road Flat, D2 continued to pick out impurities from the Ice in the presence of D1.  The ice was then kept inside the backpack in Room 1220.  

21.  D1 had brought ketamine to Room 1220 three times from May 2022 onwards.  The first occasion was in around mid-May 2022, when D1 collected about 5 kg of ketamine outside Lotus House and brought them to Room 1220.  D1 and D2 both repacked the ketamine into smaller bags and distributed them in the following 3 to 4 days.  

22.  The second occasion was on 1^st or 2^nd June 2022.  D1 collected 5kg of ketamine from Yuen Long and brought them to Room 1220.  D1 and D2 then repacked them on the same day and distributed 4 packs of ketamine, each weighing 250g.  They later repacked and distributed the remaining ketamine.  

23.  The last occasion was a few days before 7^th June 2022.  D1 collected 5kg of ketamine from a car driven by an unknown individual near So Uk Estate and brought them to Room 1220.  D1 and D2 repacked and distributed 11 packs of ketamine, each weighing 250g, on the same day.  The remaining ketamine was left inside Room 1220.  

24.  From mid-May to early June 2022, D1 and D2 visited Room 1220 almost every day to repack the drugs there.  They had exchanged messages regarding the arrangements of trafficking in the drugs.

25.  In relation to their rewards, Ko Lo would make cash deposits into the bank account of D2, the card of which was found on D2 at the time he was arrested.  D2 would reimburse D1’s travel expenses, and then give D1 half of the remaining remuneration in cash.  

26.  D1 received $500 to $700 for every pack of drug delivered.  From mid-May to early June 2022, D1 had received a total of around $12,000 from D2.  He had spent most of the money, and the $1,150 cash found on his person when he was arrested was what was left from the payments.  D1 claimed that he is not a drug user.

27.  D1 and D2 had kept some drug trafficking records on their mobile phones, and they had used the phones to contact each other about trafficking and for contacting Ko Lo.

28.  The ketamine seized by the police from D1’s person and from Room 1220 had a purity of 78.7% to 86.7%.  On the basis that D1 and D2 had trafficked in total 15kg of solids containing ketamine from May 2022 onwards, the ketamine narcotic contents of the solids NOT seized by the police is estimated to be at least [(15kg – 4,448) x 78.7%=] 8,304.42g.  Therefore, it is estimated that D1 and D2 had trafficked in at least (3,740g + 8,304.42g)= 12,044.42g of ketamine in the relevant period.

29.  By their admission to the summary of facts, D1 and D2 had accepted that they had conspired together and with other persons unknown to unlawfully traffic in methamphetamine hydrochloride and ketamine, including but not limited to all the narcotics seized in the case.  At the material time, D1 was 17 and D2 was 22 years old.  

BACKGROUND AND MITIGATION

D1

30.  D1 is of previously clear record.  He was born in February 2005 and is 20 years old.  He was just over 17 when the offence occurred.  He was a Vocational Training Council student and part-time waiter at the time.  His father was then a construction worker, now retired, and his mother was a housewife.

31.  D1, his parents, and his school teacher wrote in mitigation, speaking to the good nature of the defendant, how D1 was affected by the pandemic in his schooling, and how he was influenced by bad peers leading to his commission of the offence.

32.  Mr. Newman Wong, counsel for D1, submits that D2 was arrested and prosecuted as a result of D1’s video recorded interview to the police.  He confirmed that D1 had all along been willing to testify against D2 if called upon.  It is Mr. Wong’s position that, for the assistance rendered, together with the fact that but for D1’s confession, his offence would not have come to light so easily, and the defendant’s relatively young age when he committed the offence, a discount should be given.

D2

33.  D2 was put on 12 month probation on 28^th July 2020 for assault occasioning actual bodily harm.  2 months before D2’s commission of the present offence, he was arrested for a case of money laundering and was granted bail pending investigation.  D2 was eventually convicted on 20^th June 2024 for the money laundering and sentenced to 11 months’ imprisonment.  

34.  D2 was born in November 1999, he is currently 24 years old.  He worked as a transportation worker since mid-2021, earning $12,000 monthly.  He was educated up to form 6.  He is an only child and was living with his mother at the time of arrest.  His parents separated in 2016.  His father is a Chinese Herbalist Doctor and his mother, formerly a waitress, is now unemployed.  He is in good health.  He has been in custody since 8^th June 2022.

35.  D2, his mother, District Counsellor and social workers wrote in mitigation, speaking to how D2 committed the present offence in part due to bad peer influences, and in part due to his broken family background.

36.  Mr. Donald, counsel for D2, says in mitigation that D2 met “Ko Lo” through online games. A month later, Ko Lo, aware that D2 needed money, asked him to traffic in dangerous drugs, and the defendant agreed.

37.  They arranged a meeting in Kowloon City where Ko Lo wore a mask and glasses.  After this encounter, D2 began trafficking in drugs multiple times before being arrested.

38.  D2’s financial difficulties started when his father left, leaving the family without an income, and he foolishly thought drug trafficking would be a way to alleviate their financial problems.

39.  As for D2’s commission of the present offence whilst on bail for the money laundering case, Mr. Donald accepts that it is an aggravating factor and left it to the court’s discretion as to the correct level of enhancement to apply.

40.  Mr. Donald acknowledges that this is a serious case of conspiracy to traffic in approximately 17 kg of dangerous drugs.  He recognizes that the guideline tariff limits the discretion of the court in sentencing the defendants, but urges the court to, within the limits of discretion that the court has, appreciate that D2 is a young man with a future ahead and sentence with leniency and totality in mind.  

SENTENCING

41.  The maximum sentence on conviction upon indictment for conspiracy to traffic in dangerous drugs is life imprisonment and a fine of $5 million.

42.  It is not disputed that the sentencing guidelines for trafficking in Ice and Ketamine laid down in the cases of HKSAR v Huang Ruifang [2025] HKCA 234, CACC 106/2022, and HKSAR v Sin Chung-kin [2013] 1 HKLRD 627, and the sentencing approach for trafficking in dangerous drugs cases set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 are applicable in a conspiracy to traffic charge with relevant adjustments.

43.  The Court of Appeal provided guidance in sentencing for conspiring to traffic in dangerous drugs cases in HKSAR v Chan Kam Loi (陳鑑來) CACC 410/2012:

“100. ...But, in respect of inchoate offences it may not be possible to assess precisely the amount of drugs that were, or were going to be, trafficked. This does not mean that the Court is absolved from reaching a view on the gravity of the offence, merely that it does not have the advantage of doing so in the usual way. Of course, quantity is not the only fact relevant to the assessment of gravity but it has provided the courts with a ready means of identifying an appropriate starting point which can then be enhanced should there be present aggravating factors which increase the gravity of the offence.

101. Thus, even in respect of inchoate offences, the natural course is for the Court to analyse evidence to see whether it allows the Court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.

102. The evidence may not always allow of precise quantification but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence. Such a course is permissible as long as the inferences and assumptions are based upon evidence and do not become mere speculation with no evidential foundation. Whether the evidence and the inferences that are drawn from it enable the Court to have recourse to the quantity based sentencing bands will inevitably vary from case to case. But sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the Court to impose a just sentence.”

44.  In the present case, as set out in the summary of facts, which were admitted by the defendants, it is accepted that they had conspired to traffic in at least 5 kg of Ice and 12 kg of ketamine.

45.  The following is the application of Herry Jane Yusuph, and the combined approach in sentencing for trafficking in more than one type of narcotics as set out in HKSAR v Yip Wai Yin and Anor [2004] 3 HKC 367.

46.  Ice is the more potent narcotics of the two and is selected as the base drug.

47.  The individual applicable tariff bands for 5kg of Ice and 12kg of Ketamine are, respectively, “20 to 24 years” and “20 years upwards[1]”.

ROLE AND CULPABILITY

48.  The basic roles of the defendants were that of couriers and storekeepers.  Had they been trafficking in the same quantity of drugs, an arithmetical application of the tariff band would lead to starting points of 24 years, and at least 20 years’ imprisonment respectively for the Ice and Ketamine.  

49.  According to the summary of facts, D2 was the person who had invited D1 to join him in trafficking in dangerous drugs.  This would make D2 more culpable which would lead to the court adopting a higher notional starting point.  However, since the prosecution has applied to enhance D2’s sentence on the basis that he had enticed a ‘minor’ to conspire to traffic in the drugs, I will not enhance the starting point at this stage, so as to avoid D2 being doubly punished for his role, and will treat this as a specific aggravating factor to be dealt with separately below.

50.  The defendants did actively take part in the packaging and delivery of the drugs, making their role slightly more important than that of a simple courier or storekeeper.  This is a factor I have considered when arriving at the starting point.  

NOTIONAL STARTING POINTS IN THE TARIFF BANDS

51.  1,500g of Ice would lead to a starting point of 20 years’ imprisonment.  If this converted quantity of Ice is added to the 5,000g of Ice, the converted total of 6,500g of Ice would have a starting point of 24 years 5 months’ imprisonment.  

52.  Although the quantity of ketamine involved is far more than the 3kg considered by the Court of Appeal in Sin Chung-kin, as the Court stated, it does not mean that a proportional increase would be appropriate, and that the sentencer should exercise his sentencing discretion to decide on the proper sentence.  

53.  I find that given the undoubtedly crushing effect the lengthy sentence for the Ice alone will have on the defendants, to add to that sentence by adopting a starting point much higher than 20 years for the ketamine would result in an excessive final sentence.  I will exercise my sentencing discretion with that in mind.  

54.  Taking into consideration the quantity of drugs they had conspired to traffic in, which was at least 5kg of Ice and 12 kg of Ketamine, their role and culpability in the conspiracy, and the scale of the trafficking, I will adopt an overall starting point of 25 years 6 months’ imprisonment for both defendants.  (306 months)

AGGRAVATING FACTORS

55.  In relation to D2 alone, the prosecution had written on 28^th January 2025 to ask the court to consider enhancing D2’s sentence pursuant to s.56A(1)(ii) and s.56A(2)(d)of the Dangerous Drugs Ordinance.

56.  Section 56A(1) states as follows:

“Sentencing in respect of specified offences

(1) Subject to subsection (5), where a person (other than a minor) has been convicted of a specified offence and—

(a) a court is satisfied beyond reasonable doubt as to any information furnished under subsection (2); or

(b) any such information is agreed by the person,

then the court—

(i) shall have regard to such information when it passes a sentence on the person for the offence; and

(ii) may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such information, have passed.”

57.  Section 56A(2)(d) that the prosecution relies on states that:

“(2) Information which may be furnished to a court under this subsection is any information which proves that the commission of the relevant specified offence involved a minor and, without limiting the generality of the foregoing, the information may relate to any of the following—

…

(d) a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence; …”

58.  Under s.56A(1)(a), the court must be ‘satisfied beyond reasonable doubt’ as to any information furnished first, and then it shall have regard to such information when it passes sentence, and may, if it thinks fit, pass a more severe sentence than it would have passed had there been no such information.

59.  Mr. Donald accepted that “the application was not unwarranted in the circumstances of the facts of this case”.

60.  Given the wording of s.56A(1)(b)(ii), this court must exercise its discretion and consider, on the basis of the information furnished, whether a more severe sentence should be passed, and if so, how much more severe it should be.

61.  The information furnished by the prosecution here is the Summary of Facts which had been admitted to by D2.  It is the prosecution’s position that, since D1 was 17 years, 3 months and 11 days old as at 7^th June 2022, being the day of the arrest, D1 must have been below the age of 18 when D2 persuaded and enticed D1 to traffic in dangerous drugs, and hence a minor, and D2’s sentence should be enhanced accordingly.

62.  In exercising my sentencing discretion, I have taken the following matters into consideration.  D1 was less than 9 months away from turning 18 at the time.  A young man at D1’s then age would already have been able to make considered and independent decisions.  In fact, D1 said under caution that he chose to traffic in the drugs because he was in need of money.  There is no evidence that D2 knew D1’s age when the enticement took place.  D2 was clearly not the mastermind of the operation.  There is no evidence of D2 lying to D1 or forcing D1 to take part in the trafficking.  

63.  Yet, section 54A exists to add an extra layer of protection to minors, as well as extra deterrence for those minded to exploit minors.  The facts suggest that it was D2, being 4 years the senior of D1, who was leading the way for D1’s involvement in the conspiracy to traffic.  I find that the circumstances of the present case do require an enhancement of sentence for D2, as Mr. Donald fairly conceded.

64.  As to the extent of the enhancement, I have reminded myself of the following passage from HKSAR v Chan Ka Shing [2012] 2 HKLRD 220, CACC 64/2011:

“30. This Court thinks the answer to the question is clear: Drug trafficking is of course a very serious offence; no offender should get off lightly. Using a minor in drug trafficking is even more heinous. Anyone would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.”

65.  The percentage of enhancement applied on appeal was around 15% in that case.  In some of the cases considered by the Court of Appeal in Chan Ka Shing, the s.56A enhancement went up to 50%, which, if applied in the present case, would lead to a sentence of over 37 years.  This absurd end result would be what the Court was warning against.  

66.  In the case of HKSAR v Wong Chun Hin [2019] 1 HKLRD 433, the Court of Appeal stated that since the facts of each case varied greatly, it was not appropriate for them to set guidelines on enhancement.  They stressed that as sentences for drug trafficking offences were extremely long, restraint should be exercised in determining the enhancement to avoid an overly severe sentence.  It was held, inter alia, that a 3-year enhancement for using a minor to traffic drugs was too high, particularly given the starting point of 21 years and 11 months.

67.  With the above principles in mind, and having taken into consideration all the circumstances of the commission of the offence, and the already very high notional starting point that is adopted, I find that a fair enhancement to D2’s sentence under s.56A is that of 12 months’ imprisonment.

68.  There is another aggravating factor concerning D2’s commission of the present offence whilst he was on bail for the money laundering case.  Yet, I find that given the lengthy sentence that D2 is already facing, there is no further need to enhance his sentence for any added deterrence on this basis, either to deter D2 himself, or to deter other potential drug traffickers.  Furthermore, the earlier sentence will also be considered under the topic of totality.

MITIGATING FACTORS

69.  Neither of the defendants are of extreme youth.  Their personal circumstances pale into insignificance when looked at in the light of the seriousness of the offence they committed.  

70.  In relation to D1, for his assisting the authorities, and willingness to testify against D2 if called upon, I find that he should be granted a 45% discount after plea (instead of the usual 33.33%).

71.  In relation to D2, the only mitigating factor is his timely guilty plea.

FINAL SENTENCES

72.  D1 is, therefore, sentenced to 14 years’ imprisonment after a discount of slightly more than 45% for his guilty plea against the 25 years 6 months starting point.

73.  D2’s 25 years 6 months starting point is enhanced by 12 months under s.56A, leading to the enhanced starting point of 26 years 6 months’ imprisonment.  (318 months) The enhancement is approximately 3.9% of the overall starting point.

74.  D2 is, therefore, sentenced to 17 years 8 months’ imprisonment after granting him the usual one-third discount for his plea.  (212 months)

TOTALITY

75.  In relation to D2’s sentence in the money laundering case, given the fact that there is no suggestion that there is any connection between that and the present case, and given the time gap between D2’s commission of the offences, and the fact that D2 committed the present offence whilst on bail for the money laundering case, I will order that 4 months of that sentence be served consecutively to the 17 years 8 months sentence in the present case, the balance concurrently.  

76.  Taking a step back, I find the above sentences fair and balanced and are the appropriate sentences for each individual defendant in the circumstances.