HKSAR v. LEE TSUN HO

HCCC 11/2024

[2025] HKCFI 477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 11 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Defendant faces two counts of “Trafficking in dangerous drugs”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

2.  The subject matter of the two counts of trafficking in dangerous drugs involves cocktail of drugs.  The first count concerning 1,196 grammes of Ice contained in a total of 5 transparent plastics bags.  The second count concerning 1,670 grammes of Ice, 23.46 grammes of cocaine and 33.92 grammes of MDMA.

3.  He pleaded guilty in the magistrate court on 8 January 2024 and also admitted the summary of facts. The case was thus committed to the Court of First Instance for sentence.

4.  This morning, he appears before me, having confirmed his plea and the admission of facts.

FACTS

5.  It is a classic stop and search case.  I shall adopt the summary of facts which had been admitted by the defendant as follows:-

6.  During an anti-narcotics operation by the police, on 31 May 2021, the police laid an ambush at the staircase on the 1/F of Kar Hing Building, 187 Cha Kwo Ling Road, Yau Tong (the “Building”).  At around 3:23 pm, when the Defendant walked down the staircase from the 2/F to 1/F of the Building, he was immediately intercepted by the police.  Upon body search, dangerous drugs were found in relation to Charge 1.  The drugs found in one red paper bag and one brown paper bag on his hand.  Also, inside the right front pocket of the Defendant’s trousers, the police further found: HK$9,320 cash, a black iPhone and a bunch of 8 keys.

7.  Defendant was arrested.  Under caution, he asked for a chance and claimed that he only trafficked in dangerous drugs in return for money.

8.  Defendant was later escorted to the 2/F of the Building.  By using one of the keys found on Defendant, the police opened the main door of the only unit on the 2/F of the Building.  Inside the unit, there were 4 flats (Flat A, Flat B, Flat C and Flat D).  By using another key found on Defendant, the police successfully opened the door of Flat D.

9.  On the floor of Flat D, also at the cabinet of the washing basin, the police found the subject matter of the dangerous drugs in relations to Charge 2.  In particular, on the floor of Flat D, the police found one grey plastic box, one white paper bag and one black plastic bag.  It is said that the grey plastic box containing dangerous drugs, while the other white paper bag and black plastic bag containing large amount of transparent resealable plastic bags.  At the cabinet of the washing basin, the police found four electronic scales, and inside the cabinet, there were one sealing machine, large amount of small resealable plastic bags, eight new brown paper bags, one transparent plastic container holding two pairs of scissors, one cutter, one marker and one plastic bowl. 

10.  Defendant was again arrested.  Under caution, Defendant asked for a chance and admitted that the drugs belonged to him and he intended to traffic in those drugs.

11.  The estimated market price of the Ice involved was HK$1,617,506 whereas the estimated market price of cocaine was in the range of HK$44,945 (cocaine powder)  to HK$62,124 (crack cocaine).

12.  House search was later conducted at the Defendant’s address in the Choi Tak Estate, Kowloon Bay, but no incriminating item, including drug consumption paraphernalia was found.

BACKGROUND AND MITIGATIONS

13.  Defendant is 25 years old.  He was born in the mainland and received education in Hong Kong up to Form 3 level.  He is single and had been living with his parents before his arrest.  After leaving school, he had worked as a cashier in the restaurant for about 3 years.  Because of the pandemic, the restaurant closed down and he became unemployed.  Defendant has a clear record and he is not a drug addict.  Mr. Mak told me that the defendant was just taught by some dubious peers to participate in the trade in order to earn some quick money but he was yet to earn any profit before he was arrested.

14.  He pleaded guilty to both offences at the earliest opportunity at the committal proceeding and he fully admitted his role at the scene after the arrest for which he should receive the one-third discount.

CONSIDERATION OF SENTENCE

15.  In sentencing the defendant, I shall follow the six-steps approach as mentioned in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

THE FIRST STEP – GRAVITY OF THE OFFENCE

16.  The first step is to assess the gravity of the offence with reference to the type and quantity of the drug involved. 

17.  The defendant pleaded guilty and was convicted of two trafficking charges, Charges 1 and 2. He was first arrested at the 1/F staircase inside Kar Hing Building, Kowloon, where a total of 1,196 grammes of ‘Ice’ related to Charge 1 was found in the plastic bags he was carrying.  He was then escorted to a unit on the 2/F of the same building, to which he had access.  Inside that unit, a total of 1,670 grammes of ‘Ice’, 23.46 grammes of cocaine, and 33.92 grammes of ‘MDMA’ related to Charge 2 were found. 

18.  In such circumstances, I consider the trafficking offences underlying these two charges arose from the same course of the criminal conduct.  It is therefore only fair that the aggregate amount of the drugs involved should be added altogether for fixing a global starting point for both charges.  As the Court of Appeal held in the case of HKSAR v Chong Cho Kit, CACC 363/2005 (unrep., 12 July 2006), at §14,

“The rationale is obvious because it would be unfair, for example, to treat two lots of drugs, one lot found on the accused when he was stopped when coming out of his room and the other lot found in his home when he was brought back to his home for a search immediately thereafter, as separate and distinct lots when considering sentence.”

19.  The present case involves a total of 2,866 grammes of ‘Ice,’ 23.46 grammes of cocaine, and 33.92 grammes of MDMA.

20.  In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in a cocktail of drugs.  According to the case of HKSAR v Chan Yuk Leong, CACC 318/2013 (unrep., 8 April 2014), there are three means of cross-checking the appropriateness of the overall starting point in the case of a trafficking involving different types of dangerous drugs, namely the absurdity test, conversion test, and the ratio test.  I have directed counsel for the prosecution and defence before the hearing today to do the calculations and what came out in the final results are, indeed, identical.

21.  According the calculation made by Ms Janice Kwan, Senior Public Prosecutor, and by Mr. Mak on behalf of the defendant, the different starting points under the absurdity test, the conversion test and the ratio test are, respectively, 24.85 years, 24.80 years and 24.79 years. 

22.  As stated in the above, it is unfair to sentence the defendant on the individual approach.  To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves an upward adjustment from the starting point of the base drug.  ‘Ice’ was the more or most serious drug in terms of potency among all the drugs involved, and it represented about 98.04% of the total drugs.  I will use ‘Ice’ as the base drug to calculate the starting point.

23.  Taking the above into account, I consider a starting point of 297 months (or 24 years and 9 months) of imprisonment appropriate for trafficking in the dangerous drugs involved in the present case.

THE SECOND AND THIRD STEPS – ROLE AND CULPABILITY & THE RELEVANT BAND DEFENDANT COMES

24.  The second step is to assess the role and culpability of the defendant based upon the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it may, in appropriate circumstances, be necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the defendant. 

25.  The assessment made in the second step is relevant in determining where the defendant falls within or outside the band.

26.  The Court of Appeal reaffirmed that the bands are for the least culpable of drug traffickers.  As was held in the Herry Jane Yusuph at §59, and I quote,

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

27.  In my judgment, however, the defendant’s role in the present case was not limited to that of a courier or storekeeper.  I consider him to fall under the category of an ‘actual or direct trafficker’, which is described in Herry Jane Yusuph at §61 as someone who is involved in the actual selling of dangerous drugs to the public.  As acknowledged by Mr. Mak in his written submission, the defendant should be considered as such based on his own admissions at the scene after his arrest, the staggering quantities of dangerous drugs found on him at the time of arrest and in the unit he rented, and the paraphernalia associated with drug trafficking that was found in the unit, including four electronic scales, one sealing machine, and a large number of small resealable plastic bags.  As such, an enhancement of the sentence is required due to his heightened culpability based on his role.

28.  Before determining an appropriate enhancement in the present case, I have referred myself to cases involving sentence enhancements based on the defendant’s more culpable role, while being mindful that each case depends on its own facts.

29.  In HKSAR v Islam Azharul [2020] 1 HKLRD 644, Zervos JA considered an enhancement of six months’ imprisonment appropriate for a defendant who was involved in the packaging and dissemination of dangerous drugs by renting a room to store them.  He was also in possession of over 90 bags and packets of drugs at the time of his arrest and was found with a knife bearing traces of the drugs, as well as an electronic scale.  In HKSAR v Leung Chun-him [2023] HKCFI 2648, an enhancement of six months’ imprisonment was considered appropriate for a defendant who admitted to delivering dangerous drugs for others because he could not find any job during the pandemic.  He also admitted to being responsible for counting and packing the drugs in a warehouse under the instructions of a dangerous drug trafficking syndicate.  Similarly, in HKSAR v Leung Choi-ying, Cherry and Another [2024] HKCFI 72, an enhancement of six months’ imprisonment was considered appropriate for a defendant who admitted to being instructed to pick up a pack of dangerous drugs to repack it into eight to nine packs in a hotel room for sale to others.

30.  Considering the defendant’s involvement in the present case, however, I do not consider a similar 6-month enhancement sufficient to reflect his heightened culpability. In addition to being heavily involved in the storage, packaging, and dissemination of the dangerous drugs (as inferred from the paraphernalia associated with drug trafficking found in the unit), the defendant also admitted that the dangerous drugs involved belonged to him and that he trafficked the drugs found on him in exchange for money.  Meanwhile, it has been observed that the defendants in the above cases trafficked the dangerous drugs on behalf of others.

31.  As such, in light of the facts of the present case, I would have thought that a 9-month increase would be appropriate in his circumstances.  However, after taking into account the already lengthy sentence that will be imposed, in the end I have decided to increase the sentence by only 6 months to reflect the heightened culpability of the defendant by virtue of his role.  The sentence would therefore be increased to 303 months (or 25 years and 3 months) of imprisonment.

THE FOURTH STEP – AGGRAVATING FACTORS

32.  The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance the starting point.

33.  As fairly submitted by Mr. Mak, the multiplicity of drugs in the present case, involving ‘Ice’, ketamine and cocaine, is an aggravating feature.  This multiplicity enables the trafficker to cater to a far wider market than if trafficking only one kind of drug, thereby heightening the potential harm to society.

34.  In HKSAR v Wan Lau Mei, CACC 389/2013 (unrep., 27 March 2014), the defendant there was convicted of trafficking various quantities of different types of drugs, involving ketamine, ‘Ice’, heroin and cocaine.  The Court of Appeal considered a 6-month enhancement appropriate for the factor of multiplicity.  Similarly, in Islam Azharul, where the defendant trafficked in cocaine, herbal cannabis, cannabis resin and ‘Ecstasy’, the Court of Appeal considered that the multiplicity factor would warrant an enhancement of 6 months’ imprisonment.

35.  Taking the above into account, I would have thought that a similar 6-month increase would be appropriate given the circumstances.  However, after taking into account the already lengthy sentence that will be imposed, in the end I have decided to enhance the sentence by only 3 months.  Therefore, the sentence will be extended to 306 months (or 25 years and 6 months) of imprisonment.

THE FIFTH STEP – MITIGATING FACTORS

36.  The fifth step is to consider all mitigating factors.  As submitted by Mr. Mak, the defendant pleaded guilty to the charges at the earliest opportunity during the committal proceedings and made admissions at the scene after his arrest.  The defendant will be given a one-third discount for his timely and early plea.

37.  Apart from that, Mr. Mak also submitted that the defendant is not a drug addict, and that he is a man of good character with no prior criminal conviction.  However, as the Court of Appeal made clear in Herry Jane Yusuph at §73, in cases of trafficking in dangerous drugs, personal and family circumstances will count for little unless they are exceptional.  There is nothing in the paper to demonstrate that there is anything exceptional warranting any further mitigation.

38.  Therefore, I will not reduce the sentence further apart from the one-third discount given for the defendant’s timely and early plea.  After applying such a discount, the defendant’s sentence is reduced from 306 months to 204 months (or 17 years) of imprisonment.

THE SIXTH STEP – APPRAISAL OF THE OVERALL SENTENCE

39.  The sixth and final step is to stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. 

40.  In my judgment, the final sentence of 17 years’ imprisonment on the trafficking charges is, of course, harsh for the defendant.  However, in light of the above and the fact that the offences he committed are serious, and also the role he played, I have no doubt that the sentence is fair, just and balanced in the circumstances.

ORDER

41.  Charge 1 - 17 years’ imprisonment;

42.  Charge 2 - 17 years’ imprisonment;

43.  Sentence on both charges to run concurrently.