HKSAR v. WONG CHEUK HEI

HCCC 370/2024

[2025] HKCFI 2344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 370 OF 2024

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REASONS FOR SENTENCE

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The Charge

1.  On 4 November 2024, the defendant pleaded guilty in the magistracy to one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.  The count involved 77.94 grammes of a solid containing 65.71 grammes of cocaine, and 148.9 grammes of a solid containing 124.4 grammes of ketamine.  On the same day, the defendant admitted a Summary of Facts dated 23 October 2024 and he was committed to the Court of First Instance for sentencing. Today, before this Court, the defendant confirmed his guilty plea to the trafficking count and his admission of the Summary of Facts.

Facts Admitted

2.  The facts of the case can be summarized as follows. 

3.  On 13 March 2023, plainclothes police officers mounted an operation on the 20/F of Yat Lai House, Yau Lai Estate, Yau Tong.  They observed the defendant and his girlfriend coming out from the lift on the 20/F and they were about to enter Room 2006.  When police officers approached the defendant and revealed their police identity, he took flight and put up some resistance.  He was soon intercepted by police officers at the scene and was later brought inside Room 2006 for a house search with a warrant.

4.  The search conducted in the defendant’s bedroom found a total of 172 resealable plastic bags containing cocaine and 42 resealable plastic bags containing ketamine, being the subject dangerous drugs of the trafficking charge.  The police also found, inter alia, three electronic scales, a sieve and a large quantity of resealable plastic bags in his bedroom.

5.  When the defendant was arrested and cautioned, he admitted, “The stuffs are mine.”  Cash of HK$6,000 and 2 mobile phones were also seized from the defendant.

6.  According to the Housing Department’s records, the defendant was one of the registered occupants of Room 2006.

7.  The estimated street value of all the cocaine seized was HK$84,175 (in powder form)  or HK$104,284 (in crack form); and the estimated street value of all the ketamine seized was HK$64,772.

8.  In the Summary of Facts, the defendant also admitted that he knowingly possessed all the dangerous drugs seized in this case for the purpose of unlawful trafficking.

Background and Mitigation

9.  The defendant was born in Hong Kong and is now aged 25 years old and single.  He has a brother and a sister but he was brought up in a broken family as his parents separated when he was very young.  He only completed Form 3 education and he started working as an apprentice in restaurants until he committed an offence of trafficking in early 2020.  He was convicted of the offence in April 2021 and was sentenced to 38 months’ imprisonment. 

10.  After his release from prison in May 2022, he worked in a car washing company.  But in 2023, there was less work in the company and he could only work around 10 days each month and he earned less pay than before.  Despite that, he continued to pay for his share of the monthly rent and household expenses to his family members and he paid around $6,000 monthly even though he could not earn that much money each month. 

11.  The defendant said he met his primary classmate called “Ah Mo” in January 2023.  “Ah Mo” recruited him to use his residence for storing and packaging dangerous drugs.  He was promised a reward of around $800 to $1,000 per transaction depending on the quantities of drugs that he had to pack.  The defendant said he had not been paid by “Ah Mo” so far.

12.  The defendant is remorseful for his offending and for causing all the trouble to his family members and girlfriend.  He felt very sorry to his mother who has suffered from depression since his arrest and also for not being able to attend the funeral of his grandmother near the end of last year.

13.  Through his counsel, the defendant has submitted three letters to the Court in mitigation.  One was written by the defendant himself, expressing his remorse; and the other two letters were written by his mother and sister respectively, pleading for leniency.

14.  As to the sentence for the offence involving two types of dangerous drugs, Ms. Cindy Lee, counsel for the defendant, submitted that the Court should undertake a combined approach to sentencing in the present case but should adopt the test with a result most favourable to the defendant.  She also submitted that the role of the defendant was no more than that of a storekeeper. She further invited the Court to take the view that for the defendant’s one previous trafficking conviction and the cocktail of drugs, an enhancement of around six months should be applied in the present case.  She accepted that given the seriousness of the trafficking offence, other than the guilty plea, the defendant can raise no strong mitigating factor. 

Sentence

15.  In sentencing the defendant, I will follow the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

16.  The first step is to identify the relevant guideline band applicable to the quantities of the dangerous drugs in question.  In the present case, there are two types of drugs being involved, namely cocaine and ketamine, with the subject quantity of cocaine itself attracting the heavier starting point of 8 years and 5 months’ imprisonment, and the subject quantity of ketamine itself attracting a starting point of about 6 years and 10 months’ imprisonment.  When more than one type of dangerous drugs are involved in a trafficking offence, the court will adopt a combined approach in sentencing.  As explained in HKSAR v Chan Yuk Leong, CACC 318/2013, there are three means of cross-checking whether a sentence is manifestly inadequate, namely, the absurdity test, the ratio test and the conversion test. 

17.  The absurdity test will result in a starting point of about 11 years and 8 months which in my view is clearly excessive.  The ratio test will bring about a starting point of 9 years and 1 month, whereas the conversion test will yield a starting point of about 9 years and 4 months.  In the circumstances of this case, as invited by Ms. Lee, I am prepared to use the lowest starting point which is calculated by reference to the ratio test for the present case, namely 9 years and 1 months’ imprisonment.  Mr. Antony Leung, counsel acting for the prosecution, also confirmed that to be the correct starting point by adopting the ratio test.

18.  The second step is to assess the role and culpability of the defendant based upon the Summary of Facts before the Court.  In short, the dangerous drugs were stored and packaged by the defendant at the flat where he lived.

19.  The third step is to decide where within the relevant guideline band the defendant should come.  In my assessment, the defendant’s role is no more than that of a storekeeper. 

20.  The fourth step is to deal with aggravating factors, if any.  It is an aggravating factor for an accused to traffic in more than one kind of dangerous drugs “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.” (See HKSAR v Yim Hung Lui Ricky, CACC 266/2011, and HKSAR v Islam Azharul [2020] 1 HKLRD 644). It is also an aggravating factor that the defendant is a repeat offender.  For these two aggravating factors, I will enhance the starting point of 9 years and 1 months by 8 months, taking it to 9 years and 9 months’ imprisonment.

21.  The fifth step is to take into account the mitigating factors, if any.  As accepted by Ms. Lee, given the seriousness of the trafficking offence, the only mitigating factor in the defendant’s case is his guilty plea which was entered at the earliest opportunity.  Because of that, he is entitled to a full one-third discount.  That brings the sentence down from 9 years and 9 months to 6 years and 6 months’ imprisonment. 

22.  Lastly, I consider this sentence fair, just and balanced in all the circumstances of the offence and the defendant.  Accordingly, the defendant is sentenced to imprisonment for 6 years and 6 months.

Exhibits

23.  Order in terms of the Prosecution’s application, not objected to by the Defence, was granted.