HKSAR v. TUNG HO PAN

HCCC 405/2024

[2026] HKCFI 486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 405 OF 2024

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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 admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 21 November 2024. 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 the charge state that on 25th day of July 2023, at Room 1318, Tat Fung House, Po Tat Estate, No. 2 Po Lam Road, Sau Mau Ping, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 482 grammes of a solid containing 401 grammes of ketamine. 

3.  The Summary of Facts admitted by the defendant provides inter alia, as follows.  At around 6.55 pm on 25 July 2023, plainclothes police officers of District Anti-triad Squad, Wong Tai Sin District, mounted an anti‑narcotic operation at Tat Fung House (“TFH”), Po Tat Estate, Sau Mau Ping, Kowloon. 

4.  At around 7.20 pm on the same day, PW1 and PW2 spotted the defendant sitting in the stairwell on 21th floor of TFH.  PW1 and PW2 approached the defendant, revealed their police identities and intercepted the defendant for inquiry. 

5.  Upon a search on the body of the defendant, PW1 found a mobile phone, cash in the sum of HK$400 and two keys, with no other suspicious items found. 

6.  At about 7.38 pm, police officers, on the strength of a search warrant, used the two keys seized from the defendant to open the wooden door and metal grille of Room 1318 (“the Room”) of TFH and conducted a search in the Room in the presence of the defendant, during which the following items were found on the top of a small coffee table in the defendant’s bedroom: 

(1) a metal tray containing:

(a) one plastic bag containing 230 grammes of a solid containing 193 grammes of ketamine;

(b) one plastic bag containing 252 grammes of a solid containing 208 grammes of ketamine.

(2) one blue sealing machine;

(3) two silver spoons;

(4) one white plastic spoon;

(5) one blue stapler;

(6) one black spoon;

(7) one black electronic sale;

(8) one silver container;

(9) one paper box containing a large quantity of resealable plastic bags.

7.  In summary, a total of 482 grammes of a solid containing 401 grammes of ketamine was found in the defendant’s bedroom in the Room.  The Government Chemist subsequently examined and certified the narcotic contents of these dangerous drugs. 

8.  At about 7.41 pm, PW1 arrested and cautioned the defendant for trafficking in a dangerous drug and the defendant said “Ah sir, these K Jai were obtained by myself for dividing them to earn money.  It has nothing to do with my family.  My friends also do not know it.” 

9.  In a subsequent video-recorded interview conducted between 10.13 pm and 11.05 pm on the following day, that is 26 July 2023, the defendant stated, in gist, that: 

(1) He attained education up to Secondary Form 3 level and he was unemployed;

(2) He had been living in the Room with his parents, wife, daughter, son and domestic helper for about a year. However, his wife no longer lived in the Room as they were going to divorce;

(3) His father was the registered tenant of the Room but he was paralysed as he had a stroke;

(4) There were three bedrooms in the Room. Each of himself, his domestic helper and his mother (with the defendant’s two children) occupied a bedroom. His father occupied a bed in the living room;

(5) Only he himself would use his bedroom and no one else would enter it;

(6) He would earn money by dividing the ketamine seized by the police into smaller bags but his family and friends had no knowledge about those drugs;

(7) About two days before his arrest, that is 23 July 2023, he received a phone call from an unknown male called “Ah Ha” and asked him if he wanted to earn money. He agreed;

(8) Later in the same day, he received another phone call from another unknown person instructing him to pick up a blue bag containing the drugs and paraphernalia (including a sealing machine, an electronic sale, a stapler, spoons, and resealable plastic bags) from a bush near TFH, and he complied. He then brought the said blue bag back to his bedroom in the Room, took out the contents of the blue bag and threw away the blue bag;

(9) The said unknown male then taught him to use a spoon to put the drugs into small bags, and then weighed them with the electronic scale and sealed them by using the sealing machine. He was promised a monetary reward of HK$2,800 for handling the drugs;

(10) However, he was arrested before he could divide the drugs into small bags. He had not received any monetary reward;

(11) The two keys belonged to himself which was the keys of the Room;

(12) The mobile phone and the cash of HK$400 belonged to himself; and

(13) He did not have the habit of consuming drugs.

10.  In July 2023, the estimated street value of all the ketamine seized in this case was about HK$254,496. 

11.  The defendant admits and accepts that he was knowingly in possession of all the ketamine seized in this case for the purpose of unlawful trafficking.  

12.  Regarding the personal background of the defendant.  The defendant was born on 24 January 1994 in Hong Kong and is currently 31 years of age.  The defendant comes from a working-class family in which his father used to be a decoration worker while his mother was a housewife.  The defendant is the eldest son, with a younger sister aged 28 who is married and lives apart.  

13.  The defendant got married when he was 22.  He has two children, a daughter aged 9 and son aged 6.  The marriage did not last long, which was dissolved last year. Prior to his arrest, the defendant was residing with his parents and the two children at a public housing unit at Po Tat Estate. 

14.  The defendant, having completed his Secondary Form 3 studies at a local secondary school, continued his studies at the vocational training college at Kwai Chung, where he learned automotive service.  After one year in the course, he quitted as he had no interest in that profession.  Upon his father’s advice, the defendant followed his father to enter the field of interior decoration as a decoration worker.  This job enabled him to earn a living and support his family financially.  

15.  However, due to the social unrest followed by the COVID-19 pandemic, the defendant’s income was severely affected.  His monthly income of HK$25,000 on average was reduced to less than HK$10,000.  Prior to his arrest, the defendant worked as a casual worker at a seafood stall at Kai Tin Market, earning a daily wage of HK$800.  This was the employment of the defendant at the time of his arrest.  

16.  In the beginning of 2023, the defendant’s father’s health condition deteriorated after a stroke.  The defendant was facing problems from all directions, namely matrimonial discord with his wife, his father’s mishap and insufficient income causing financial hardship.  The defendant then sought help from friends for loans.  One of his friends introduced a man called “Ah Ha” to the defendant a couple of days before 25 July 2023.  “Ah Ha” called the defendant and said that he could offer the defendant a reward of HK$2,800 for handling the drugs.  The defendant foolishly agreed and committed the offence in question.  

17.  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”. 

18.  Regarding the first step, the task is to identify the appropriate range applicable to the quantity of drug concerned.  The sentencing guidelines for trafficking in ketamine was laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  For trafficking in 300 to 600 grammes of ketamine, the guideline starting point is 9 to 12 years’ imprisonment.  

19.  Second, concerning the defendant’s role and culpability, I accept that the defendant was little more than a courier or storekeeper of the drug.  

20.  Third, for 401 grammes of ketamine, an arithmetical approach towards the guidelines would lead to a “notional sentence after trial” of 10 years’ imprisonment.  I would adopt this as the notional sentence after trial in this case, based on my finding of the defendant’s role and culpability under step two above.

21.  Fourth, I consider that there is no aggravating factor 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 guilty plea, for which I will give him a one-third discount.  Accordingly, the defendant’s sentence is reduced to 6 years and 8 months’ imprisonment.  

23.  Finally, I consider that the sentence of 6 years and 8 months’ imprisonment is a fair, just, and balanced sentence.  

24.  Accordingly, the defendant is sentenced to 6 years and 8 months’ imprisonment.