HKSAR v. CHUNG YIU CHO

HCCC 321/2024

[2025] HKCFI 3402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 321 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 3 October 2024. The case was then committed to the Court of First Instance for sentence. Before this court, the defendant confirmed his plea and his admission to the Summary of Facts through counsel.

2.  The particulars of the charge states that on the 30th day of March 2023, at Room 1220, Mei Hung House, Shek Kip Mei Estate, No. 52 Berwick Street, Shek Kip Mei, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 176.6 grammes of a mixture containing 143.28 grammes of heroin hydrochloride. 

3.  The Summary of Facts admitted by the defendant provides, inter alia, as follows.  In the morning of 30 March 2023, an anti-narcotics operation was conducted by the police outside Room 1220, Mei Hung House, Shek Kip Mei Estate (“the Premises”). 

4.  On the same day at about 7.23 am, the defendant came out from the Premises and was immediately intercepted by the police.  After being subdued, the police brought the defendant back into the Premises where they found the defendant’s girlfriend there. 

5.  Upon a body search on the defendant, three resealable plastic bags (which contained a total of 180 packets (consisting of plastic wrappings) containing 43.4 grammes of a mixture containing 34.63 grammes of heroin hydrochloride) wrapped in tissue paper were found inside the pocket of the defendant’s shorts.  The defendant was also found in possession of three mobile phones and HK$383 in cash. 

6.  Armed with a search warrant, the police conducted a search of the Premises in the presence of the defendant and found, inter alia, the following items inside a drawer in the living room of the Premises: 

(1) multiple resealable plastic bags which contained a total of 544 packets (consisting of plastic wrappings) containing a total of 133.2 grammes of a mixture containing 108.65 grammes of heroin hydrochloride;

(2) one plastic bag containing 1.03 grammes of cannabis in herbal form;

(3) a roll of black plastic bags; and

(4) two packets of rubbish bin bags.

7.  The defendant was arrested and cautioned for the charge of trafficking in a dangerous drug. Under caution, the defendant admitted that all the dangerous drugs were obtained by him for sale and his girlfriend had nothing to do with it and further asked for a chance. 

8.  In the subsequent cautioned video-recorded interview, the defendant stated, inter alia, the following: 

(1) He was in need of money and was introduced by a friend known as Ah Sing to the job of delivering and storing dangerous drugs, which he understood to be “white powder” (白粉) and “coke” (可樂);

(2) He took the job around three days ago and was instructed by Ah Sing to pick up dangerous drugs from certain places and deliver the drugs (which were packaged in pellet form with plastic wrappings of different colours) packed in black plastic bags to other places. He had brought the drugs he collected to the Premises where he lived, pending further delivery instructions;

(3) He was told that those drugs were “Sei Chai” (ie common code word for heroin). He had received around HK$800 for his first day and around HK$1,000 for his second day (ie a total of around HK$1,800) for carrying out the tasks pursuant to the instructions;

(4) Regarding the heroin found on him upon his arrest, he stated that he had received instructions on his phone and was instructed to deliver them to a certain place;

(5) The three mobile phones seized from him were used for receiving instructions on collecting and delivering drugs. The HK$383 cash found on him was part of the amount that he had received for the jobs;

(6) Prior to the arrest, he was instructed to deliver some packets of drugs to a place. However, he was immediately intercepted by the police when he left the Premises;

(7) The packet of cannabis seized by the police were left behind by his friend who previously came to the Premises;

(8) His girlfriend merely came to play with his pets at the Premises and she had no knowledge of the dangerous drugs;

(9) He admitted that he had lived at the Premises with his father for around 15 years, only he and his father had the keys to the Premises; and

(10) He had been unemployed since mid-March 2023.

9.  The street value of all the heroin hydrochloride seized from the Premises was around HK$139,161. 

10.  Regarding the personal background of the defendant, the defendant is now aged 28.  His father is aged 69.  The defendant’s mother died in 2018.  The defendant suffers from dyslexia and had to attend special school when he was young.  The defendant dropped out of school in Secondary Form 4.  He had since been working as a worker in transportation and construction fields.  Since the COVID pandemic, however, the defendant has only been able to pick up part-time work at different bars with unsteady income.  The defendant has a clear record. 

11.  In around the end of 2023, the defendant got into financial difficulties and incurred debts of around $50,000 owed to finance companies. 

12.  The defendant was introduced by Ah Sing to engage in dangerous drugs activities.  He was told that he would be given $800 per day for delivering the drugs and Ah Sing also promised the defendant that if he could store the dangerous drugs, he would be given an extra $200 per day. 

13.  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 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”.

14.  Regarding the first step, for 143.28 grammes of heroin, the applicable guideline tariff band is that of 8 to 12 years’ imprisonment: see HKSAR v Huang Ruifang [2025] HKCA 234 at paragraph 62. 

15.  Second, concerning the defendant’s role and culpability, I accept that the defendant was a courier or storekeeper of the dangerous drug. 

16.  Third, for 143.28 grammes of heroin, an arithmetical approach towards the guidelines would lead to a “notional sentence after trial” of 10 years and 5 months’ imprisonment.  From my finding of the defendant’s role and culpability at step two above, I see no reason for enhancing the notional sentence after trial beyond 10 years and 5 months. 

17.  Fourth, I consider that there is no aggravating factor which would enhance the notional sentence after trial. 

18.  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. 

19.  Accordingly, the defendant’s sentence is reduced to 6 years and 11 months’ imprisonment. 

20.  Finally, I consider that a sentence of 6 years and 11 months’ imprisonment is a fair, just, and balanced sentence in the circumstances of this case and the circumstances of the defendant. 

21.  The defendant is accordingly sentenced to 6 years and 11 months’ imprisonment.