HKSAR v. KONG CHENG TSE WAI

DCCC 735/2025

[2026] HKDC 567

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 735 OF 2025

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REASONS FOR SENTENCE

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1.  Mrs Kong Cheng Tse Wai (hereinafter “Ms Cheng”)  pleaded guilty before me to 2 charges 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 she, on 10 January 2025, outside No 38 Chuen Lung Street, Tsuen Wan, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 5.97 grammes of a solid containing 5.29 grammes of cocaine and 53.60 grammes of a solid containing 42.12 grammes of ketamine.

3.  Charge 2 is Possession of a poison 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 she, on same date, at same place, in Hong Kong, had in her possession a poison included in Part 1 of the Poisons List, namely 10.20 grammes of a liquid containing etomidate, otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance, Chapter 138.

Facts admitted by Ms Cheng

4.  On 10 January 2025, at about 4:40 pm, Ms Cheng was acting furtively whilst seated in the front passenger seat of a stationary private car MR7172 at the roadside outside No 38 Chuen Lung Street, Tsuen Wan.  Patrolling police approached the car for enquiry.

5.  Upon search, police found in Ms Cheng’s black sling bag a brown plastic bag containing the following items:-

(a)  A black cloth bag containing:

(i)  5 resealable transparent plastic bags containing a total of 0.93 gramme of a solid containing 0.79 gramme of cocaine; and

(ii)  16 resealable transparent plastic bags (each featuring a blue line)  containing a total of 5.04 grammes of a solid containing 4.50 grammes of cocaine;

(b)  A yellow and blue resealable transparent plastic bag bearing the “Glad” mark containing 41 resealable transparent plastic bags (each featuring a red line)  containing a total of 28.7 grammes of a solid containing 23.6 grammes of ketamine;

(c)  A yellow and blue resealable transparent plastic bag bearing the “Glad” mark containing:-

(i)  15 resealable transparent plastic bags (each featuring a blue line)  containing a total of 13.8 grammes of a solid containing 11.2 grammes of ketamine; and

(ii)  23 resealable transparent plastic bags (each featuring a red line)  containing a total of 11.1 grammes of a solid containing 7.32 grammes of ketamine; and

(d)  2 resealable transparent plastic bags containing 8 cartridges containing a total of 10.2 grammes of a liquid containing etomidate.

6.  Police also found $2,456.80 cash on Ms Cheng.

7.  At 5:20 pm on the same day, police arrested Ms Cheng for “trafficking in dangerous drugs”.  Under caution, Ms Cheng admitted ownership of the dangerous drugs and said that the driver had nothing to do with them.

8.  On the next day, during a cautioned VRI, Ms Cheng stated:

(a)  The sling bag and all the dangerous drugs belonged to her;

(b)  She possessed the dangerous drugs for sale and was about to deliver them to Tsuen Wan;

(c)  She asked the driver to drive her from Tuen Mun to Tsuen Wan; she got on board in Tuen Mun;

(d)  The driver had no knowledge of the dangerous drugs; and

(e)  She was a waitress earning a monthly salary of about $10,000.

9.  The estimated street value of the dangerous drugs was about $23,837.

Criminal record

10.  Ms Cheng has one similar conviction of trafficking in dangerous drugs in 2018 for which she was sent to prison for 8 years and 8 months.

Antecedents

11.  Ms Cheng, born in the Netherlands, is aged 40 (39 at the time of the offences), educated to post-secondary level, was working as a waitress before arrest.  She was last discharged from prison in October 2022.  Ms Cheng is married and she lived with her mother in public housing in Tuen Mun.

Mitigation

12.  Mr Edward Fan of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Cheng.  The following is a summary of the mitigation submissions.

13.  Ms Cheng came with her parents to Hong Kong in 1987 when she was 2 years old.  She is married and her husband lives in the Mainland.  Since leaving college, she has worked as a waitress at various restaurants.  Her monthly salary before arrest was about $18,000.

14.  Ms Cheng indicated her guilty pleas at the first available opportunity. The court is invited to afford her the one third discount on sentence.

15.  Since her remand, Ms Cheng has fully reflected on her repeated wrongdoings.  She is determined not to commit any further criminal offences. Ms Cheng asks for leniency.

16.  The sentencing guideline for trafficking in cocaine is aligned to the guidelines for trafficking in heroin: R v Lau Tak Ming and Ors [1990] 2 HKLR 370, as modified in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197. The sentencing guidelines for trafficking in heroin and cocaine are now contained in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138, at para 62.  For trafficking in up to 10 grammes of cocaine, the sentence is between 2 and 5 years’ imprisonment.

17.  For trafficking in 5.29 grammes of cocaine, the sentence starts at approximately 3 years 5 months and 5 days or 41.16 months[1].

18.  The customary sentence for trafficking in between 10 and 50 grammes of ketamine is between 4 and 6 years.  For trafficking in 42.12 grammes of ketamine, the sentence starts at approximately 5 years 7 months and 8 days or 67.27 months.

19.  As Ms Cheng trafficked in a cocktail of drugs, the court may adopt the ‘individual’ approach or the ‘combined’ approach for sentencing.  Further, there is no dispute that trafficking in cocktail of dangerous drugs is an aggravating factor for sentence.  The court may adopt the individual approach or combined approach for sentence.

20.  For the individual approach, the sentence is by adding the respective starting points of cocaine and ketamine together, ie, 41.16 months[2] + 67.27 months = 108.43 months or 9 years 13 days[3].

21.  For the combined approach, the court may adopt one of three tests: absurdity test, conversion test, and ratio test.

22.  Mr Fan obtained the following calculation results with the 3 tests:

(a)  Absurdity test – 93.67 months for 47.41 grammes of cocaine; 70.45 months for 47.41 grammes of ketamine;

(b)  Conversion test – 72.03 months for 23.37 grammes of cocaine; 72.07 months for 50.55 grammes of ketamine; and

(c)  Ratio test – 11.16% x 93.67 months (cocaine)  + 88.84% x 70.45 months (ketamine)  = 73.05 months.

23.  For the offence under Charge 2, the maximum penalty is a fine of $100,000 and imprisonment for 2 years.

24.  Ms Cheng committed this offence for the first time; she begs for leniency.

25.  The court is asked to apply the totality principle when determining the overall sentence.

26.  Mr Fan acknowledged that Ms Cheng is a repeated offender of Trafficking in dangerous drugs.

27.  Mr Fan submitted on behalf of Ms Cheng a mitigation letter written in Chinese by Ms Cheng herself.  The contents generally are that Ms Cheng is truly regretful and will not re-walk the same path; that she hopes the court will pass a lenient sentence so she may pick herself up again and re-unite with her mother sooner.

28.  Upon enquiry by the court, Mr Fan submitted Ms Cheng played the role of a courier.

Sentence

29.  Ms Cheng committed trafficking in dangerous drugs once before.  However, since it was only once before, I will not treat her as a recidivist for sentence purpose.

30.  I will adopt the combined approach of sentencing as it is the more sensible approach in the situation under consideration.

31.  I will follow the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 when sentencing Ms Cheng for the offence under Charge 1.

32.  My own calculations on the three cross-checking tests bear the following results:-

(a)  Absurdity test: 93.67 months for cocaine; 70.45 months for ketamine;

(b)  Conversion test: 72.03 months for 23.37 grammes of cocaine; 72.04 months for 50.26 grammes of ketamine; and

(c)  Ratio test: 73.05 months.

33.  The difference between Mr Fan’s results and mine are insignificant. Looking at the results as a whole, I feel it safe to adopt an initial starting point in Ms Cheng’s case for both types of drug one of 73 months’ imprisonment.

34.  Under caution, Ms Cheng admitted she was the owner of the drugs and that she had them for sale and was about to deliver them.  Hence, the only inference open to me is that she was an actual trafficker rather than a mere courier. For this aggravating factor as well as the fact that two types of drug, not one, are involved, I shall increase the starting point by 5 months to reach a final starting point of 78 months’ imprisonment.

35.  For Charge 2, I shall adopt a starting point of 9 days’ imprisonment.

36.  Ms Cheng pleaded guilty in good time to the charges earning for herself the customary 1/3 sentencing discount.  There are no other mitigating factors of weight to warrant another sentence reduction.

37.  The two offences were committed at the same place and time.  Whether under the principle of totality or otherwise, I shall order the related sentences to be served concurrently.

38.  I step back to consider if the resulting sentence in Ms Cheng’s case is a just, fair and balanced one having regard to the overall circumstances of the case, which include the fact that there were two types of serious drug contained in a total of 100 resealable transparent plastic bags shipped from Tuen Mun to Tsuen Wan by use of a private vehicle.  Viewed in this way, I do not think the resulting sentence is anything other than just, fair and balanced.

(Ms Cheng, please stand)

39.  On Charge 1, the sentence for Ms Cheng is 52 months’ imprisonment.

40.  On Charge 2, the sentence for Ms Cheng is 6 days’ imprisonment.

41.  I order that the two sentences are to be served concurrently.