HKSAR v. CHAU KA KUEN

HCCC 437/2024

[2025] HKCFI 5690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 437 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs before Magistrate Ms. Minnie Wat and was, on 16 December 2024, committed to the Court of First Instance for sentence. Before me, he confirmed his plea and admission to the Summary of Facts, and his conviction was duly recorded.

2.  Particulars of the charge are that the defendant on 7 August, 2023, at Room 105, Flat B, 1^st Floor, Wah Mow Factory Building, Nos. 202-204 Choi Hung Road, Wong Tai Sin, Kowloon, unlawfully trafficked in dangerous drugs, namely 30,315 grammes of cannabis in herbal form and 342 grammes of a solid containing 258 grammes of 2-fluorodeschloro-N-ethyl-ketamine.

FACTS

3.  Police officers laying ambush at the charge address in an anti-narcotics operation in the afternoon of 7 August 2023 saw the defendant opening the door to Room 105.

4.  The defendant tried to flee when intercepted but was subdued.  A bundle of 3 keys were found on him, with one labelled “105”, which the police later used to enter Room 105.

5.  At the time of his interception, the defendant had an iPhone, a Samsung phone, a bag containing a new pair of scissors, 2 bottles of deodorants, a pack of vacuum bags, 9 more similar bags, and a vacuum sealing machine in his possession.

6.  Upon search of Room 105, the following items were found:

(1)  60 packets containing a total of 30,315 grammes of cannabis in herbal form;

(2)  one plastic bag containing 342 grammes of a solid containing 258 grammes of 2-fluorodeschloro-N-enthyl-ketamine;

(3)  two induction cookers;

(4)  two pots;

(5)  four wire gauzes;

(6)  a transparent plastic box;

(7)  a dehydrator;

(8)  two beakers;

(9)  a box of double lock bags;

(10)  two packs of empty resealable plastic bags;

(11)  a bottle of acetone;

(12)  a bottle of alcohol;

(13)  a stapler and a box of staples;

(14)  three electronic scales;

(15)  a thermometer;

(16)  a screwdriver;

(17)  two whiteboard markers;

(18)  an electric kettle; and

(19)  two nylon bags, each containing a transparent plastic bag.

7.  The defendant was arrested and claimed under caution that he had helped to deliver the cannabis and “K Chai” (ketamine)  for $2,000 per pack, and $1,500 per pack, respectively. In the subsequent video recorded interview conducted in the presence of the defendant’s mother, he stated that he lived in Tung Chung and confirmed in the footages shown to him that it was himself who was caught by the building’s CCTV camera.  

8.  A urine test was conducted on the defendant and the results came back negative for drugs.  

9.  Two fingerprints belonging to the defendant were lifted from the dehydrator in Room 105.  

10.  In August 2023, the average retail price for cannabis in herbal form was HK$191 per gramme.  The cannabis seized that day had a street value of $5,790,165.

11.  In relation to the 2-fluorodeschloro-N-ethyl-ketamine, whilst it gives rise to different physiological effects after consumption when compared to ketamine, the two share very similar physical appearance, and the average drug abuser would not be able to differentiate between them.  As such, the 2-fluorodeschloro-N-enthyl-ketamine could have been sold as ketamine at street level to drug abusers for HIK$178,524, being the average retail price for ketamine of HK$522 per gramme in August 2023.

PREVIOUS CONVICTION

12.  The defendant has one previous conviction for trafficking in dangerous drugs.  He was convicted on 23 September 2021 and was sentenced to detention at the Drug Addiction Treatment Centre.  The defendant was 16 years old.  He was last discharged from Lai Sun Correctional Institution on 17 May 2023 for that offence.  He committed the present offence 82 days after his discharge.

BACKGROUND AND MITIGATION

13.  The defendant was born on 26 August 2005 and is 20 years old at the time of sentence.  He was 19 days shy of turning 18 years old at the time of arrest.

14.  The defendant was educated up to Form 3 level.  He was raised by his mother alone and resided in a public housing unit with his grandmother, mother and younger brother.  The defendant was unemployed at the time of arrest.  

15.  Ms. Cindy Kong, counsel for the defendant, informed the court that the defendant has, since his remand, enrolled and finished the first module of a Bachelor in Psychology degree run by Metropolitan University, and is currently into the second module.

16.  The defendant had also taken construction courses and have obtained a Green Card that would allow him to work on construction sites.

17.  The defendant wrote to tell the court how he now understands dangerous drugs would destroy lives and endanger society.  He wishes for a chance to rehabilitate and work hard to become someone useful to his family and the community.  

18.  The defendant’s mother wrote in mitigation, expressing her pain in seeing her son committing such a serious mistake.  She, however, sees that the defendant has deeply reflected on his misdeeds, is sincerely remorseful and willing to turn over a new leaf.  Their family will fully support and help him get back on the right path, and hope the court would consider his youth and pass a lenient sentence so that he can reintegrate into society soon.

19.  Mr. Wong, the supervisor of the social service who has been in contact with the defendant since February 2021, wrote and informed the court that the defendant had taken part in activities caring for the elderlies.  He finds the defendant to be down to earth, and cares much about his family and friends.  Since his arrest for the present offence, the defendant has shown genuine remorse and had joined various courses.  He believes that the defendant has learned a serious lesson and is deserving of a chance for rehabilitation.  

SENTENCING

20.  The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

21.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and read in conjunction with HKSAR v Lee Ming Ho [2024] HKCA 150 are applied.

22.  In HKSAR v Luk Kuong-chon [2022] HKCA 1432, on the basis of expert opinion that the potency and toxicity of fluorodeschloroketamine (“FDCK”)  is similar or slightly higher than that of ketamine, the learned trial judge enhanced the sentence by 2 months upon the 7 years 4 months starting point for the applicant’s trafficking of 164.1g of FDCK.  The Court of Appeal found the judge’s reasoning could not be faulted, that it was sound and supported by evidence, and refused the applicant’s leave to appeal against his sentence.  This is the case that the prosecution rely on.  There is, however, evidence to suggest that the ketamine variant the defendant trafficked in our case is less potent than FDCK.  

23.  According to the Expert Statement[1] of Dr. CHONG Yeow Kuan prepared specifically for the present case, “2-fluorodeschloro-N-ethyl-ketamine” (“FDNK”[2]), also known as 2-fluoro-2-oxo-PCE, 2-fluoro-Nethylnordeschloroketamine (2F-NENDCK), or 2-FXE, is a dissociative new psychoactive substance (NPS)  of the arylcyclohexylamine family and is a relatively new analogue of ketamine(3,4).

24.  The pharmacology of FDNK have not been formally studied and its potency has not been documented. Relying on user experience reports, Dr. Chong finds that the potency of FDNK to be roughly equal to ketamine.

25.  From the small number of cases of FDNK since its first detection in Hong Kong, Dr. Chong’s laboratory finds that its toxicity is also similar to that of ketamine.

26.  In conclusion, Dr. Chong states that,

“2-fluoro-2-oxo-PCE (FDNK)  is a new psychoactive substance structurally similar to ketamine. I consider the potency of 2-fluoro-2-oxo-PCE to be similar to ketamine. The reported consumption ranged from 15-650 mg per session. The average abuser would abuse 100-150 mg per session.

The clinical toxicity profile of 2-fluoro-2-oxo-PCE is similar to ketamine. 2-fluoro-2-oxo-PCE is often detected with other drugs of abuse such as cocaine, ketamine and methamphetamine. 2-fluoro-2oxo-PCE has the potential of being addictive, and the abuse potential is likely similar to ketamine. The use of 2-fluoro-2-oxo-PCE has been observed in Hong Kong since 2023.”

27.  As such, on the basis of Dr. Chong’s undisputed expert opinion, I find that the guideline tariff band in relation to ketamine should be applied without enhancement in the case of FDNK, given their similarity in potency and toxicity.

Step 1: The applicable guideline tariff bands

28.  The guideline tariff band under Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 for trafficking from 50 to 300g (258g is the charge quantity)  of ketamine is “6 to 9 years”.

29.  According to HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 (date of judgment 20 January 2023[3]), the tariff band for over 15,000 but under 45,000g (30,315g is the charge quantity)  of herbal cannabis is 5.5 to 8 years.

Step 2: The defendant’s role and culpability

30.  Out of all the paraphernalia that could be related to the packaging or even ‘cooking’ of drugs in Room 105, only two of the defendant’s fingerprints were found on one dehydrator. I find that the evidence would not allow me to draw the only reasonable inference that the defendant was engaged in the packaging of the drugs there.  There is, of course, the direct evidence from the defendant that he was merely delivering the drugs for money.

31.  On the available evidence, I find that the defendant should be sentenced as a simple courier and storekeeper.  

Step 3: The relevant band within the guidelines

32.  Based on my finding of the defendant’s role and culpability, the herbal cannabis would have attracted a starting point of 6 years 9 months (81 months)  imprisonment.  

33.  In relation to the FDNK (applying the ketamine tariffs), it would have called for a starting point of 8 years 6 months’ (102 months)  imprisonment.

34.  Since two different types of dangerous drugs were trafficked, I adopt the combined approach as propounded in HKSAR v Yip Wai Yin [2004] 3 HKC 367[4]. I have applied the absurdity, conversion and ratio tests as used in HKSAR v Chan Yuk Leong CACC 318/2013, [2014] HKLRD (Yrbk)  325 to assist me in arriving at the correct starting point.  

ABSURDITY TEST

35.  On the basis of all 30,573g of narcotics were the more potent drug of ketamine, any combined starting point above 20 years would be regarded as absurd.  

CONVERSION TEST

36.  If the herbal cannabis is converted into ketamine that would yield the equivalent sentence of 6 years 9 months, the total converted quantity of ketamine would be 370g (258g + 112g), which would have a notional starting point of 9 years 8 months.

37.  If the ketamine is converted into herbal cannabis that would yield the equivalent sentence of 8 years 6 months, the total converted quantity of herbal cannabis would be 86,315g (30,315g + 56,000g)  , which would have a notional starting point of 9 years 10 months.  

38.  I would select ketamine as the base drug despite it being less in quantity than the cannabis, given its potency and quantity involved.  

RATIO TEST

39.  Since the sentence for assuming all 100% of the total 30,573g of narcotics were ketamine would be over 20 years, there is no practical use of applying the ratio test.  

THE COMBINED NOTIONAL STARTING POINT

40.  Having regard to the above test results, taking into consideration the defendant’s role and culpability and the overall circumstances of the case, I will exercise my sentencing discretion and adopt a combined starting point of 9 years 8 months’ imprisonment.

Step 4: Aggravating factors

41.  This is the defendant’s second conviction for trafficking in dangerous drugs.  He committed the present offence 82 days after his discharge from detention for the previous trafficking.  Furthermore, he committed the present offence whilst being on police bail for a case of obtaining property by deception.  The presence of these factors calls for the sentence to be enhanced by 8 months for added deterrence.

42.  It is well established that trafficking in more than one type of dangerous drugs is an aggravating factor, for which I enhance his sentence by 4 months.  

43.  The total enhancement of 12 months takes the sentence up to 10 years 8 months.  

Step 5: Mitigating factors

44.  Ms. Kong mentioned that the defendant was 17 at the time of his commission of the offence.

45.  First of all, the age of the defendant, both at the time of the commission of the offence and at the time of his sentence, does not fall into the category of extreme youth and would not normally be regarded as a mitigating factor in a crime as serious as the present one.

46.  Furthermore, this is the second time that the defendant has engaged in drug trafficking activities, which took place shortly after his release from detention.

47.  Therefore, I find that the age of the defendant does not amount to a mitigating factor in this case and no discount is to be granted on this basis.

48.  I find, however, that there is one mitigating factor that this court should recognize, which is the defendant’s attitude towards his rehabilitation since being remanded in this case.  For his enrolling and completing of various courses, I will grant him a reduction of 6 months’ imprisonment, taking the notional starting point down to 10 years 2 months.  

49.  As for the defendant’s personal circumstances, it is trite law that they pale into insignificance as a mitigating factor in cases as serious as the present one, and no reduction is, therefore, to be granted on this basis.

Step 6: Totality

50.  Taking a step back, I find the final sentence fair, just and balanced in the circumstances.  

FINAL SENTENCE

51.  The defendant is granted the full one-third discount for his timely plea of guilty, and is sentenced to 81 months, or 6 years 9 months’ imprisonment after plea.

Ms. Janice KWAN, SPP of Department of Justice, for the Prosecution/ HKSAR

Ms. Cindy KONG, instructed by Messrs. Boase Cohen & Collins, assigned by D.L.A. for the defendant