HKSAR v. FAN KA MING

HCCC 443/2024

[2025] HKCFI 1584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 443 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134, before Magistrate Ms. Minnie Wat and was, on 19^th December 2024, committed to the Court of First Instance for sentence. His conviction was duly recorded upon his confirmation of the plea and admission to the Summary of Facts.

2.  Particulars of the charge are that the defendant on 6^th October, 2023, at Room 2901, Shing Yam House (Block 8), On Yam Estate, No. 7 On Chuk Street, Kwai Chung, New Territories, unlawfully trafficked in dangerous drugs, namely 128.9 grammes of a solid containing 106.4 grammes of ketamine and 26.03 grammes of a solid containing 22.18 grammes of cocaine.

FACTS

3.  During a police anti-narcotics operation in the evening of 6^th October at the building at the charge address, the defendant was intercepted when he arrived at the lift lobby at around 9:12pm.  The defendant became very emotional and started to struggle, and had to be subdued and handcuffed.  

4.  Upon enquiries, the defendant claimed that he resided in Room 2901 of the building but he did not have the keys with him.  He was escorted to outside Room 2901 and a female opened the room door after the doorbell was rung.  

5.  A search warrant for the room was executed and the following items were found from inside the defendant’s bedroom:

(a)  a white plastic basket containing 8 large resealable plastic bags, which contained (i)  63 resealable plastic bags (with the words “B”, “stone (石)”, “4 middle (四中)” and “Sai Heung 29 (細香 29)” marked thereon), containing a total of 128.9 grammes of a solid containing 106.4 grammes of ketamine and (ii)  95 resealable plastic bags (with the words “79 79”, “38”, “30” and “10” marked thereon)  containing 26.03 grammes of a solid containing 22.18 grammes of cocaine)  (collectively, “E1-E8”);

(b)  a heat sealing machine (the “Heat Sealing Machine”);

(c)  3 makeup brushes;

(d)  3 electronic balances (the “Electronic Balances”);

(e)  a substantial amount of empty resealable plastic bags;

(f)  a spoon;

(g)  a nail clipper;

(h)  a pair of scissors (the “Scissors”);

(i)  a plastic container;

(j)  a glass container;

(k)  a paper bag (the “Paper Bag”); and

(l)  the defendant’s HKID card and wallet.

6.  The defendant was arrested for trafficking in dangerous drugs and he exercised his right to silence.

7.  Investigation recovered the defendant’s DNA materials from various items connected to the trafficking of the drugs found in the room.

8.  The estimated street value of all the ketamine seized was around HK$62,645, while that of all the cocaine was around HK$25,822 (as cocaine powder)  or HK$27,670 (as crack cocaine).

9.  By his admission to the Summary of Facts, the defendant had admitted to being knowingly in possession of all the said dangerous drugs for the purpose of unlawful trafficking.

PREVIOUS CONVICTION

10.  The defendant has one conviction dated 9^th April 2021, when he was jailed for 6 weeks for the offence of possession of offensive weapon in a public place.  He had finished serving the sentence and was discharged from prison on 29^th April 2021.  

BACKGROUND AND MITIGATION

11.  The defendant was born in mainland China in December 2005 and is 19 years and 4 months old.  He was about 17 when he committed the offence.  He came to Hong Kong in 2010.

12.  The defendant was living with his mother, elder sister and grandmother.  His parents separated when he was a child.  The defendant was educated up to Form 1 level.  He suffers from asthma and was unemployed and supported by his family.  

13.  Ms. Hui, counsel for the defendant, told the court that the defendant has enrolled in many programs while in remand, including Food Hygiene Manager program, Introduction First Aid and Foundation Certificate/Certificate in construction safety.  He will continue his studies so as to be better prepared when he returns to society.

14.  The defendant indicated in his letter in mitigation that he aims to become a professional chef, and will seek to be assigned to be a cook in prison.  The defendant’s mother wrote to tell the court how the defendant has always been a good son, how he made the mistake of trying to help her out by dealing in drugs.  She promises to supervise him with great care in future.

SENTENCING

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

16.  This is an excepted offence, therefore, despite the fact that the defendant is under 21 years old at the time of sentence, s.109A of the Criminal Procedure Ordinance Cap.221 does not apply and imprisonment need not be the last option.

17.  The sentencing guidelines for trafficking in cocaine and ketamine laid down, respectively, in the cases of HKSAR v Huang Ruifang [2025] HKCA 234, CACC 106/2022, and HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, and the sentencing approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 are applied as follows.

Step 1: The applicable guideline tariff bands

18.  The individual applicable tariff bands for 106.4 grammes of ketamine and 22.18 grammes of cocaine are, respectively, “6 to 9 years” and “5 to 8 years”.

ROLE AND CULPABILITY

19.  Based on the paraphernalia found in the Room, the only reasonable inference is that the defendant was acting in the role of a storekeeper who was very much involved with the packaging of the drugs.  There is, however, insufficient evidence to prove that he was involved in the direct trafficking of the drugs, and it is possible that he was tasked to package the drugs and then have them delivered to someone else.  Nevertheless, for his role as storekeeper who had taken part in the packaging of the drugs, the tariff band will be applied accordingly to reflect the increased culpability.

Step 3: The relevant band within the guidelines

20.  On the basis of him being a storekeeper, the arithmetical individual starting point for the ketamine and cocaine would be, respectively, 5 years 11 months and 6 years 8 months.  

21.  Since two different types of dangerous drugs were trafficked, the combined approach in HKSAR v Yip Wai Yin [2004] 3 HKC 367 is applied.  The absurdity, conversion and ratio tests as used in HKSAR v Chan Yuk Leong CACC 318/2013 are used to assist in arriving at the starting point.  Cocaine is regarded as the more potent drug of the two and is selected as the base drug.

ABSURDITY TEST

22.  If all 128.58g of narcotics were the more potent drug of cocaine, any combined starting point above 10 years 1 month could be regarded as absurdly high.

CONVERSION TEST

23.  22.2g of cocaine would attract an equivalent starting point of 5 years 11 months.  If this converted 22.2g is added to the original 22.18g of cocaine, the total converted quantity of 44.38g would lead to a notional starting point of 7 years 7 months.

RATIO TEST

24.  Based on the proportion of the two drugs involved, the sentence would be about 7.5 years.

THE COMBINED NOTIONAL STARTING POINT

25.  Having regard to the above test results, taking into consideration the defendant’s role and culpability, I will adopt a combined starting point of 8 years’ imprisonment to 106.4g of ketamine and 22.18g of cocaine.

AGGRAVATING FACTORS

26.  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[1]. Given that there were only 2 different types of drugs, I will enhance the sentence by 6 months, taking the starting point up to 8 years 6 months.

MITIGATING FACTORS

27.  I have noted that the defendant was 17 years old when he committed the offence.  However, as McWalters J said in the case of HKSAR v Bayanmunkh [2012] 2 HKC 233, “…no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers.”

28.  Here the defendant is more culpable than a courier since his role was a storekeeper who also packaged the drugs, as such, there is to be no discount on the defendant’s age.  The only mitigating factor is his timely plea of guilty, for which he is given the usual one-third discount.

TOTALITY

29.  Taking a step back, I find the above starting point fair, just and balanced in the circumstances.  

FINAL SENTENCE

30.  The defendant is sentenced to 5 years 8 months’ imprisonment after plea.