HKSAR v. SO KWAI PING, PINK

DCCC 1527/2024

[2026] HKDC 1101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1527 OF 2024

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  Mr So pleaded guilty before me to three charges on a Charge Sheet as follows.

2.  Charge 1 is Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on 9 March 2024, outside No 20 Wai Yi Street, Tai Po, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 10.68 grammes of a solid containing 3.78 grammes of cocaine, 7.23 grammes of a crystalline solid containing 6.58 grammes of methamphetamine hydrochloride, 1.79 grammes of a mixture containing 1.15 grammes of heroin hydrochloride, 0.7 gramme of cannabis in herbal form, and 0.04 gramme of a solid containing cocaine and methamphetamine.

3.  Charge 2 is Possession of poisons included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Cap 138.  Particulars are that he, on the same day, at the same place, had in his possession poisons included in Part 1 of the Poisons List, namely 4 tablets containing sildenafil, 4.46 grammes of a solid containing tadalafil, and 19.62 grammes of a liquid containing nicotine, otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance, Chapter 138.

4.  Charge 3 is Possession of dutiable goods, contrary to sections 17(6)  and 46(3)  of the Dutiable Commodities Ordinance, Cap 109.  Particulars are that he, on the same day, on a private car bearing registration number TG1184, at the same place, had in his possession, custody or control dutiable goods, namely 9,471 pieces of dutiable cigarettes, otherwise than in accordance with the provisions of paragraph (a)  or (b)  of section 17(6)  of the Dutiable Commodities Ordinance, Cap 109.

Facts admitted by Mr So

5.  On 9 March 2024, at about 10:55 pm, a private car bearing registration number TG1184 was parked outside 20 Wai Yi Street, Tai Po.  A male person (“M”)  approached the car.  He extended his hands into the front passenger seat through the window.

6.  Mr So in the driver’s seat moved towards the front passenger seat and handed over a foilpack to M.  Police officers on observation approached and intercepted them for enquiries.

7.  PW2 conducted a body search on M outside of the car.  A foilpack was found in M’s left hand.  The foilpack was later found to contain 2 tablets containing sildenafil, a listed Part 1 poison.

8.  PW1 conducted a body search on Mr So outside 20 Wai Yi Street.  In Mr So’s right hand, there was found a black nylon bag.  The bag contained the following items:

(a)  One written note with figures resembling drug trafficking orders: “1 big 8 small”, “Heung 4 of small three 1 grid”, “$1100”, “Little tortoise entrusts 1 small”, “Brother Kit takes 1 big” and “3 small 900”;

(b)  Two folded $20 banknotes wrapping a total of 0.08 grammes of solids containing cocaine;

(c)  A pile of transparent resealable plastic bags; and

(d)  15 plastic bags containing, among other things:

(i)  10.51 grammes of solids containing 3.78 grammes of cocaine and traces of cocaine;

(ii)  7.23 grammes of crystalline solids containing 6.58 grammes of methamphetamine hydrochloride;

(iii)  1.79 grammes of a mixture containing 1.15 grammes of heroin hydrochloride;

(iv)  0.7 gramme of cannabis in herbal form; and

(v)  0.04 gramme of a solid containing cocaine and methamphetamine.

9.  In a waist bag carried by Mr So, PW1 found, among other things, the following:

(a)  1 plastic packet containing 4.46 grammes of a solid containing tadalafil, a listed Part 1 poison; and

(b)  One coin bag containing cash of $1,033.10.

10.  PW1 with a colleague then searched the car in the presence of Mr So. Inside the storage box to the right of the driver’s seat, a black pouch was found.  The pouch was found to contain, among other things, 1 foilpack containing 2 tablets containing sildenafil, a listed Part 1 poison.

11.  Furthermore, inside the storage box at the back of the front passenger seat were found the following items:

(a)  1 transparent glass tube containing 1 piece of sponge and a solid containing a total of 0.09 gramme of a solid containing cocaine;

(b)  1 black plastic tube containing 1 piece of sponge; and

(c)  A total of 19.62 grammes of liquid containing nicotine (a listed Part 1 poison)  contained in 9 cartridges, each 3 of which were contained in 1 paper box contained in 1 foilpack contained in 1 plastic packet.

12.  In addition, 9,471 pieces of dutiable cigarettes with an estimated market value of $47,355 and duty potential of about $31,311 were found inside the trunk of the car.

13.  PW1 arrested Mr So for the offence of trafficking in dangerous drugs. Under caution, Mr So stated that he was not selling dangerous drugs but he was providing them to M; that the dangerous drugs were for his self-consumption. In relation to the cigarettes, Mr So said under caution that they were for his self-consumption.

14.  Mr So now admits the particulars of the three offences with which he is charged.

Criminal record

15.  Mr So has 5 previous convictions, 4 of which were for either possession of or trafficking in dangerous drug.  The remaining one was for dealing with dutiable commodities.

Antecedents

16.  Mr So is aged 52 (50 at the time of the offences), educated to Secondary 3 level, was a truck driver and a fisherman.  Mr So was last discharged from prison on 2 September 2022.  Mr So has five siblings.  Mr So is single and was living in private housing in Sai Sung.

Mitigation

17.  Mr Ryan Chan of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr So.  The following is a summary of the mitigation submissions.

18.  Mr So was born in Hong Kong, was a fisherman earning about $8,000 a month.

19.  Mr So pleaded guilty at the earliest available opportunity.  He is genuinely remorseful.

Charge 1

20.  Mr Chan reminded the court of the six-step sentencing approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

21.  For sentencing tariffs, they are:

(a)  for cocaine and heroin, as per R v Lau Tak Ming [1990] 2 HKLR 370, up to 10 grammes of narcotics: 2 to 5 years’ imprisonment before discount;

(b)  for Methamphetamine (commonly known as ICE), as per HKSAR v Tam Yi Chun [2014] 3 HKLRD 691: up to 10 grammes, 3 to 7 years’ imprisonment before discount; and

(c)  for Herbal cannabis and cannabis resin: as per Attorney General v Tuen Shui Ming & Anor [1995] 2 HKC 798 and HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329: under 2,000 grammes, up to 16 months’ imprisonment before discount.

22.  In HKSAR v Wong Shing Ming, Hendy [2024] HKCFI 867, it was said that “a combined approach would usually be correct, preferred and produces the more realistic and fair sentence.  Most often, the applicable sentence for the most or more serious drug is taken, and then adjusted upwards to take into account significant quantities of the less serious or smaller amounts of other drugs.  Normally, the more or most serious drug is not a reference to quantity but the potency of the drug.  This does however depend on the specific facts of each case.”

23.  Mathematical approach to sentencing for Charge 1 could be as follows:

(a)  3.78 grammes of cocaine: 3 years 1 months;

(b)  6.58 grammes of methamphetamine hydrochloride (ICE): 5 years 7 months;

(c)  1.15 gramme of heroin hydrochloride: 2 years 4 months; and

(d)  Mr Chan invites the court to ignore the 0.07 gramme of cannabis in herbal form and the 0.04 gramme of a solid containing cocaine and methamphetamine for the purpose of sentencing, due to the insignificant amounts.

24.  In HKSAR v Mohammad Rashid [2023] HKDC 1719, the court found that the possession of 25.65 grammes of cannabis in herbal form and 0.51 gramme of a solid containing 0.10 gramme of 3,4-methylenedioxymethamphetamine was insignificant quantities and could ignore them for the purpose of sentencing. As such, the court sentenced the Defendant in relation to the 18.85 grammes of a solid containing 13.72 grammes of cocaine.

25.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal held: “in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point.”; and “In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

26.  Under caution, Mr So stated that the drugs were for self-consumption. This is supported by the urine test (copy submitted)  administered after his arrest.  It was submitted that his sentence should be adjusted downwards to reflect this.  Despite what Mr So said under caution, it is now the defence case that he was heading towards a friend’s place in order to share all the dangerous drugs with this friend.

Charge 2

27.  In HKSAR v Chin Chin Fai [2022] HKCA 83, the defendant had in his possession poisons included in Part I of the Poisons List, namely 0.49 gramme of a tablet fragment containing sildenafil, one capsule containing sildenafil and one tablet containing tadalafil (Charge 11), he was fined $900.

28.  In HKSAR v Tamorite Emilia Tendencia [2024] HKDC 2013, D was found with 9 devices containing a total of 250.4 grammes of a liquid containing nicotine.  The court adopted a starting point of 3 weeks’ imprisonment, reduced to 2 weeks’ imprisonment after a guilty plea.

29.  In HKSAR v John Ho-yin [2025] HKDC 501, deft had in his possession 1 cartridge which contained 0.11 gramme of a liquid containing nicotine and a white plastic bag containing 2 resealable plastic bags each containing 1 cartridge which contained a total of 0.01 gramme of a liquid containing etomidate.  The court adopted a starting point of 3 weeks’ imprisonment, reduced to 2 weeks’ imprisonment after a guilty plea.

Charge 3

30.  In HKSAR v Shams, UI Qamar, HCMA 628/2016, appellant was in possession of 8,894 sticks of cigarettes and was sentenced to 3 months’ imprisonment after trial.

31.  Finally, Mr Chan asked the court to temper justice with mercy.

32.  Mr Chan submitted on behalf of Mr So a mitigation letter written in Chinese by Mr So himself.  The contents generally are that Mr So is genuinely remorseful and will part with dangerous drugs.  Mr So asks the court for a chance to rebuild his life and for a lenient sentence.

33.  Upon enquiry by the court, Mr Chan indicated that Mr So would not go into the witness box to support his claim of self-consumption of half of the dangerous drugs and all of the cigarettes.

Sentence

Charge 1

34.  Mr Chan prayed in aid the mitigation of self-consumption.  Mr Chan relied on the urine test result which was positive for Amphetamine only.  Mr Chan also relied on what was said under caution by Mr So: “the dangerous drugs were for his self-consumption”.

35.  I note that Mr So has previous convictions for possession of dangerous drug in 2004; that he also has a conviction for trafficking in dangerous drug in 2021 (DCCC 1024/2020 refers).  In the Chinese Reasons for Sentence of that trafficking in ICE case, although it was recited (in para 4)  that Mr So claimed under caution that the ICE was for his self-consumption, his counsel specifically disavowed from mitigation the claim that all or a majority of the drug was for self-consumption (see para 5).  Nonetheless, his counsel did ask the sentencing court to take into account Mr So intended to consume a small amount of ICE which was supported by a positive urine test result for that drug (see para 10).  In the end, the deputy judge on an exercise of discretion took off 3 months from the starting point before applying the customary 1/3 sentencing discount on that basis.

36.  Back to the present case, there is no evidence that a significant proportion of any drug was intended for Mr So’s self-consumption; therefore the threshold for reducing the starting point by 10% to 25% as suggested in Chow Chun Sang (supra) has not been reached (see HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, para 26).

37.  I have considered whether I should exercise my discretion to nonetheless give Mr So a small reduction from the starting point for his intended self-use of a small amount of the ICE seized[1]. I decided against it because as is apparent from the evidence, we are dealing here with a case of a mobile delivery depot of different types of dangerous drug and Part 1 poison, of which the ICE only formed a part.

38.  I follow the six-step approach set out in Herry Jane Yusuph (supra) for sentencing a drug trafficker.

39.  I note the sentencing tariffs referenced by Mr Chan in mitigation for the drugs cocaine, heroin and ICE.  For the particular weights (including the total weight of the said 3 types of drug)  that are involved in this case, those tariffs are identical to the revised tariffs set out in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138.

40.  I accede to the submission made by Mr Chan that because of their small amounts, the less than one gramme of herbal cannabis and the 0.04 gramme of solid containing cocaine and methamphetamine can be ignored for the assessment of the initial starting point based on weights alone.

41.  Since cocaine and heroin share the same sentencing tariff, I feel able to add the two weights together to reach a combined weight of 4.94 grammes. This belongs to the sentencing band for up to 10 grammes of the drugs calling for 2 to 5 years of starting point of sentence.  Arithmetically, trafficking in 4.94 grammes of the drugs calls for 41.748 months of starting point.

42.  As regards ICE, which is the more potent drug, and in this case also is the largest amount of drug compared with cocaine and heroin combined, 6.58 grammes of ICE belongs to the sentencing band for up to 10 grammes of the drug calling for 3 to 7 years of starting point of sentence.  Arithmetically, trafficking in 6.58 grammes of ICE calls for 67.584 months of starting point.

43.  For reasons of potency and weight, I decide to use ICE as the base drug and I start off by adopting 67.5 months as the initial starting point before adjusting it upwards to take account of the presence of the 4.94 grammes of cocaine and heroin.

44.  Bearing in mind the combined approach of sentencing is the more sensible approach in most cases of cocktail of drugs, I shall adopt it as the approach here.

45.  For the additional 4.94 grammes of cocaine and heroin that were present, I adjust the starting point upwards by 7.5 months to reach a starting point based on weights alone of 75 months.  I note that this starting point is still within the band of 3 to 7 years for up to 10 grammes of ICE.

46.  In accordance with the guidance given by the Court of Appeal (cor: Macrae VP and Zervos JA)  in HKSAR v Yau Kai Fung [2026] HKCA 885, I then worked out the result of the ratio test.  It was found to be 75 months[2].

47.  I then consider the role and culpability of Mr So in the trafficking activities.  There is no evidence of money changing hands.  On the other hand, there was a written note with figures resembling drug trafficking orders.  Mr So could be either a courier or an actual trafficker; in the latter case, a higher starting point would be warranted.  Giving him the benefit of the doubt, I will regard him as a courier only.

48.  For the aggravating factor of trafficking in multiple types of drug, I enhance the starting point by 3 months.

49.  Mr So 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 warrant another sentence reduction.

50.  Step 6 of the Herry Jane Yusuph approach will be dealt with in one go after considering the sentences of Charges 2 and 3.

Charge 2

51.  The maximum penalty for the offence subject of Charge 2 is a fine of $100,000 and imprisonment for 2 years.

52.  On the facts admitted, Mr So was a clearly a supplier/deliverer of the various Part 1 poisons which he possessed.  The fact of being a supplier and the presence of multiple types of Part 1 poison are aggravating factors.  A prison term is inevitable.

53.  I adopt as starting point 3 months’ imprisonment.

54.  Mr So 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 warrant another sentence reduction.

Charge 3

55.  The maximum penalty for the offence subject of Charge 3 was, at the time of commission of the offence, a fine of $1 million and imprisonment for 2 years[3].

56.  I reject Mr So’s claim that the cigarettes were for his self-consumption.

57.  Given the large amount of cigarettes involved, a prison sentence is appropriate.  I adopt a starting point of 4½ months’ imprisonment.

58.  Mr So 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 warrant another sentence reduction.

59.  For completeness, I do not find it necessary to impose an additional fine on Mr So pursuant to section 46(2)  of the Dutiable Commodities Ordinance, Cap 109.

Totality

60.  The three offences were committed at the same time and place.  Although the three types of goods were different in nature, it is quite clear that Mr So was on a delivery mission in respect of all three.  The activities were the same though the subject matters were different.  Some degrees of concurrency of sentences could be allowed even before consideration of the totality principle.  In any event, when I come to determine the final aggregate sentence, I will bring to bear the totality principle and make appropriate orders accordingly.

61.  I will of course exercise my mind in respect of Step 6 of the Herry Jane Yusuph approach and satisfy myself that the resultant final aggregate sentence is just, fair and balanced having regard to the overall circumstances of the offences and the offender.  Those circumstances will include Mr So’s use of a vehicle at night time on a mission to deliver a multitude of dangerous drugs, Part 1 poisons and illicit cigarettes.

(Mr So, please stand)

62.  On Charge 1, the sentence is 52 months’ imprisonment.

63.  On Charge 2, the sentence is 2 months’ imprisonment.

64.  On Charge 3, the sentence is 3 months’ imprisonment.

65.  I order that one month of the sentence on Charge 2, and one month of the sentence on Charge 3, are each to run consecutively to the sentence on Charge 1, making a final aggregate sentence of 54 months’ imprisonment for Mr So.