HKSAR v. WONG YUK KAI

HCCC 133/2024

[2025] HKCFI 554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 133 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in a dangerous drug before Magistrate Ms. Vivian Ho and was committed, on 22 April 2024, to the Court of First Instance for sentence. The defendant confirmed his plea and admission to the summary of facts before me and his conviction was duly recorded.

PARTICULARS

2.  Particulars of the offence are that the defendant on 8 July 2022, at the staircase, 1^st floor, Career and Kenson Industrial Mansion (“the building”), No.58 Hung To Road, Kwun Tong, Kowloon, unlawfully trafficked in a dangerous drug, namely 486g of a solid containing 273g of ketamine.

SUMMARY OF FACTS

3.  The defendant was spotted walking down the staircase between the 1^st and 2^nd floor of the building at around 3:03pm, holding a red paper bag. Police officers who were on anti-narcotics operation there went up to intercept him.  

4.  Upon search, 2 zip lock bags containing all the particularized dangerous drugs were found from the red paper bag.  He also had 2 mobile phones on his person.  The defendant was arrested for the offence of trafficking in dangerous drugs.

5.  CCTV captured the defendant entering room 141 of the building alone at 2:38pm earlier on while holding a white paper bag.  He left room 141 about 30 minutes later, this time holding a red paper bag.  

6.  Investigation revealed that the defendant had rented room 141 on the 1^st floor of the building at HK$5,500 per month for the period 3 April 2021 to 2 April 2023.  The defendant’s residence in Tiu Keng Leng was searched with no drug related paraphernalia found.  

7.  The estimated street value of the seized dangerous drugs was about HK$278,964.

8.  By his admission to the summary of facts, the defendant had admitted he was in possession of all the dangerous drugs for the purpose of unlawful trafficking at the material time.  

PREVIOUS CONVICTIONS

9.  The defendant is of previously clear record.

BACKGROUND AND MITIGATION

10.  The defendant was born in Hong Kong in November 2000 and is 24 years old.  He was educated up to Form 6 and holds the Yi Jin Diploma from Hong Kong Baptist University.  He was unemployed at the time of arrest.

11.  The defendant lives with his parents at Shin Chi House in Tseung Kwan O, he claimed to have no triad background nor any history of drug abuse.

12.  Mr. Lo, counsel for the defendant, told the court that after the defendant had been laid off as a waiter as a result of the Covid pandemic, a former colleague offered him $2,000 to deliver drugs, which the defendant foolishly agreed to do in order to try to help relieve the financial burden on his father.  He deeply regrets his decision and promises to repay the society in future.  

13.  The defendant’s mother suffers from anxiety and depression.  His parents and aunt wrote in mitigation, describing him as a cheerful and optimistic person who is always willing to help others.  They can see that he is genuinely remorseful and seek leniency.

SENTENCE

14.  The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of $5 million.  

APPLYING HERRY JANE YUSUPH

15.  The sentencing guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1] are applied as follows.

Step 1: The applicable guideline tariff bands

16.  The guideline tariffs for ketamine is laid down in Secretary for Justice v Hii Siew Cheng[2]. For 273g of ketamine, the tariff band is 6 to 9 years’ imprisonment.

Step 2: The defendant’s role and culpability

17.  Based on the summary of facts, there is insufficient evidence to suggest that the defendant was involved in direct trafficking.  A reasonable inference would be that he was a courier, while using Room 141 to store the dangerous drugs.  He is to be sentenced as such.

Step 3: The relevant band within the guidelines

18.  Based on my finding of the defendant’s role and culpability as courier and storekeeper, the arithmetical approach is taken in the application of the guideline tariffs, leading to a starting point of 8 years 8 months, which I adopt.

Step 4: Aggravating factors

19.  There are no aggravating factors that would require me to enhance the sentence.

Step 5: Mitigating factors

20.  I have noted the defendant has no previous convictions, but it is trite law that in trafficking in dangerous drugs cases, having a clear record is irrelevant in terms of sentencing.  

21.  Furthermore, the credit given for a guilty plea would have subsumed any credit that is to be given for the clear record.[3]

22.  The only mitigating factor is the defendant’s timely guilty plea.  

Step 6: Totality

23.  Taking a step back, I find that in the circumstances the sentence is fair, just and balanced.  

FINAL SENTENCE

24.  The defendant is, therefore, sentenced to 5 years 9 months’ imprisonment after plea.