HKSAR v. MAK CHEUK YIN RICKY

HCCC 78/2025

[2026] HKCFI 1482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 78 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “trafficking in a dangerous drug” and one charge of “trafficking in dangerous drugs”, and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 6 March 2025. The case was then committed to the Court of First Instance for sentence. Before this court, he confirmed his plea and his admission to the Summary of Facts through counsel.

2.  The particulars of Charge 1 state that on 17 April 2024, at the staircase near Flat 15, 11th Floor, Hung Yu Mansion Block B, Nos 155-169 Castle Peak Road, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 1.66 grammes of a solid containing 1.16 grammes of cocaine. 

3.  The particulars of Charge 2 state that on 17 April 2024, at Unit A, Flat 11, 12th Floor, Hung Yu Mansion Block B, Nos 155-169 Castle Peak Road, Kowloon, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely, 5.306 kilogrammes of a solid containing 4.421 kilogrammes of ketamine, and 4.82 grammes of a solid containing 3.49 grammes of cocaine. 

4.  The Summary of Facts admitted by the defendant provides, inter alia, as follows.  On 17 April 2024, a team of Customs officers in plain clothes conducted an anti-narcotics operation in the Cheung Sha Wan area.  At about 1400 hours on the same day, PW1 spotted the defendant acting suspiciously outside Smiling Plaza near Camp Street, Castle Peak Road, in Cheung Sha Wan.  PW1 saw the defendant pass a wrapped tissue paper to another male, and they immediately went apart.  PW1 was instructed to keep the defendant under observation.  PW1 followed the defendant and saw the defendant enter Block B of Hung Yu Mansion situated at Nos 155-169 Castle Peak Road, Kowloon (“Block B”).  The defendant took the lift, which stopped on the 11th Floor.  

5.  At about 1550 hours on the same day, PW1 and PW2 were instructed to conduct investigation inside Block B.  At about 1550 hours, PW1 intercepted the defendant at the staircase near Flat 15, 11th Floor of Block B.  They revealed their identity.  PW1 conducted a search on the defendant.  On the defendant’s left shoulder covered by his T-shirt, PW1 found 11 plastic bags, wrapped by a piece of tissue paper, containing a total of 1.16 grammes of cocaine.  PW1 arrested the defendant and cautioned him for the offence of trafficking in a dangerous drug. 

6.  Under caution, the defendant stated, inter alia, that: 

(1) Those bags were ‘coke’, which were drugs and belonged to him;

(2) He would distribute the drugs to others downstairs; and

(3) He would have monetary reward of $200 upon completion of distributing the drugs.

7.  PW1 also cautioned the defendant regarding the two keys found on him.  The defendant answered that the keys were for his residence located on the upper floor of the same block, Flat 11A on the 12th Floor.  PW1 and PW2 escorted the defendant to his residence (ie “the Flat”).  A search was conducted in the Flat. 

8.  As a result of the search in the Flat, at about 1600 hours on the same day, inside the cabinet under the sink, the following items were found: 

(1) One plastic packet containing 1.99 kilogrammes of a solid containing 1.66 kilogrammes of ketamine;

(2) Eight plastic bags containing a total of 1.57 kilogrammes of a solid containing 1.31 kilogrammes of ketamine;

(3) One plastic bag containing 992 grammes of a solid containing 829 grammes of ketamine;

(4) One plastic bag containing 497 grammes of a solid containing 407 grammes of ketamine;

(5) One plastic bag containing 257 grammes of a solid containing 215 grammes of ketamine;

(6) 18 plastic bags containing a total of 2.80 grammes of a solid containing 1.88 grammes of cocaine;

(7) 13 plastic bags containing a total of 2.02 grammes of a solid containing 1.61 grammes of cocaine;

(8) Two sets of electronic scale with batteries;

(9) A spoon;

(10) A bundle of small zip-lock bags; and

(11) A bundle of large zip-lock bags.

9.  At the Flat, PW1 arrested the defendant for the offence of trafficking in dangerous drugs in respect of the dangerous drugs found in his residence.  Under caution, the defendant stated, inter alia, that: 

(1) They were ‘perfume’ and ‘coke’, which were drugs and belonged to him;

(2) The drug-packaging paraphernalia was for him to pack the drugs;

(3) He would pack and distribute the drugs to unknown persons; and

(4) He would have monetary reward, but he do not know the amount yet.

10.  With the passcode provided by the defendant and a search warrant, the Customs officers conducted a screening of the defendant’s mobile phone.  Upon checking, a total of 14 photographs relevant to the present case were found.  They were recovered from the “Recently Deleted” folder in the photo album.  These photographs were being taken from 9 to 15 April 2024, each showed a bag containing white or yellow substances, and some of the bags were placed on a scale. 

The packaging of the substances were similar to the dangerous drugs seized from the Flat.

11.  The defendant admits that at the material time, he unlawfully trafficked in dangerous drugs, namely 1.16 grammes of cocaine, ie the 1st charge; and 4.421 kilogrammes of ketamine and 3.49 grammes of cocaine, ie the 2nd charge. 

12.  As to the personal background of the defendant, the defendant was born in Hong Kong in November 2006.  He was 17 at the time of the offence.  He is now aged 19.  The defendant received education up to Secondary Form 3 level in Hong Kong.  He had one previous conviction concerning unlawful possession of dutiable goods, for which he was fined HK$3,200. 

13.  The defendant is single and was living alone in Sham Shui Po.  He was unemployed at the time of his arrest.  I am told that the defendant was distributing drugs as a courier for others for monetary reward.  This is consistent with his admissions referred to in the Summary of Facts. 

14.  The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  The first step is to identify the relevant sentencing band (or bracket) applicable to the quantity of drug concerned.  The second step is an assessment of the role and culpability of the defendant based on the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes.  It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant.  The fourth step is to consider aggravating factors which bear on the “notional sentence after trial”.  The fifth step is to have regard to any matters of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”.  The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just and balanced sentence”. 

15.  Regarding the first step, the task is to identify the appropriate range applicable to the quantity of drugs concerned.  Looking at Charges 1 and 2 together, the narcotic content of the total quantity of dangerous drugs seized were 4.65 grammes of cocaine and 4,421 grammes of ketamine. 

16.  In HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138, the guideline bracket for a quantity of 4.65 grammes of cocaine is 2 to 5 years’ imprisonment.  According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, read together with HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, at paragraphs 27 and 28, the starting point for a quantity of 4,421 grammes of ketamine should be around 21 years and 2.5 months’ imprisonment. 

17.  As two different kinds of drugs were involved with a combined weight of 4,425.65 grammes, in order to assist me in identifying the overall starting point of the offences, the “Absurdity Test”, “Ratio Test”, and “Conversion Test” as explained in HKSAR v Chan Yuk Leung, CACC 318/2013 (Judgment dated 8 April 2014) have been conducted with the following results: 23 years and 4.1 months under the Absurdity Test;  21 years and 5.5 months under the Ratio Test;  and 21 years and 2.6 months under the Conversion Test.

18.  Having considered the above results in the round and taking into account that more than one type of dangerous drugs is involved, I consider that the overall starting point of 21 years and 6 months would be appropriate in the present case.  This is purely based on the quantity and types of drugs involved, before any consideration of the defendant’s role in the offence. 

19.  Second, concerning the defendant’s role and culpability, my assessment should be based upon the evidence before the court, whether by admission or by direct or circumstantial evidence: see Herry Jane Yusuph, supra, at paragraphs 58 and 61.  From the Summary of Facts as admitted by the defendant, I accept that the defendant was acting as a courier or storekeeper of the dangerous drugs, as explained in Herry Jane Yusuph, supra, at paragraph 59. 

20.  Third, in view of my aforesaid finding of the defendant’s role and culpability, I consider that a total sentence of 21 years and 6 months’ imprisonment would be the appropriate overall “notional sentence after trial” for the two offences in question. 

21.  Fourth, I consider that there is no aggravating feature which would enhance the “notional sentence after trial”. 

22.  Fifth, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely plea, for which I will give him a one-third discount.  Accordingly, the defendant’s overall sentence is reduced to 14 years and 4 months’ imprisonment. 

23.  Finally, I consider that an overall sentence of 14 years and 4 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and in the circumstances of the defendant. 

24.  To achieve the totality of 14 years and 4 months’ imprisonment, I sentence the defendant as follows: 

(1) The defendant is sentenced to 1 year and 6 months’ imprisonment on Charge 1;

(2) The defendant is sentenced to 14 years and 4 months’ imprisonment on Charge 2;

(3) I order that the sentence on Charge 1 is to run concurrently with the sentence on Charge 2, thus resulting in the total sentence of 14 years and 4 months’ imprisonment.