HKSAR v. LING KA CHUN AND ANOTHER

DCCC 807/2024

[2025] HKDC 1765

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 807 OF 2024

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REASONS FOR SENTENCE

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1.  In this case the defendants face a single charge of trafficking in  dangerous drugs, contrary to section 4(1)(a)  and subsection (3)  of the Dangerous Drugs Ordinance, Cap 134.  Both defendants have entered a plea of guilty to that charge and I have convicted them of the charge accordingly on the basis of their pleas and the Admitted Facts.

2.  The quantity of drug set out in the particulars of the charge, their narcotic content, is 8.08 grammes of cocaine, 113.13 grammes of a liquid of THC, and 2.49 grammes of a solid of THC.

3.  The Admitted Facts show that the offence was committed on 20 September 2023 and was detected as a result of a police operation at a premises in Aquila Square Mile in Tai Kok Tsui in Kowloon.  At that time, police were obviously surveilling a flat at that location and the 1^st defendant was seen leaving the flat.  That was subsequently raided by police and the 2^nd defendant was found in the bedroom of that flat.

4.  A house search was conducted and various items were found in the living room, the kitchen and under the sink and TV cabinet.  Now, the items were there were 312 devices in which the liquid THC was found, 14 plastic bags in which the solid THC was found, a plastic bag containing the cocaine, and a further 13 plastic bags containing the herbal cannabis, there being a total of 1,651.31 grammes of cannabis in herbal form.

5.  There were three electronic scales, a quantity of paper bags, plastic bags, a box of gloves and a vacuum sealer, which are all paraphernalia for use in the trafficking of a dangerous drug. The defendants were searched.  Mobile phones and cash were found on them.

6.  The 1^st defendant, when he was cautioned for trafficking in dangerous drug, said the soft drinks were not his.  He delivered “ngau ngau” and cannabis oil only because he owed others money.  He remained silent in a subsequent interview.  The 2^nd defendant at the time remained silent when interviewed.

7.  I am informed in the facts that the value of the cocaine which is in crack form was at the time $10,447.44 while that of the herbal cannabis was $293,933.18. 

8.  At the time, there was a tenancy agreement on the flat where the drugs were found, with the 2^nd defendant as the tenant, and a document was found supporting that during the police raid.

9.  The defendants themselves have admitted they had those drugs in their possession for the purpose of unlawful trafficking. 

10.  As far as the defendants’ antecedents are concerned, both defendants -- in the antecedents, I believe they are described as being 25 years of age, but in fact the 1^st defendant is 27 now, I believe, and the 2^nd defendant is 26.

11.  Of great significance is at the time and also of now, both defendants are of clear record.  Mitigation has been advanced on behalf of the defendants.  It is worth at least assessing that mitigation because, as I said, the unusual feature of this case is both defendants at the time of their arrest and as of now, are of clear record.

12.  The 1^st defendant was born in China.  He came to Hong Kong in around 2001, he is 27 years old.  Took up air-conditioning programme, Vocational Training Council.  He has worked in the past as a part-time air-conditioner technician and has been in full-time work. From the time of 2017 up to the time of his arrest in 2023, he worked as a full-time salesperson in an aquarium shop in Mong Kok and subsequently that job ceased as a result of the Covid epidemic.  The defendant did subsequently afterwards find a job in a stall in Mong Kok. 

13.  The 1^st defendant said the 2^nd defendant was his friend.  They had known each another for about two years and the 1^st defendant was living with the 2^nd defendant.  The 1^st defendant is also married with a wife living currently in Hangzhou, I think, in China.  Unfortunately, I believe there was a miscarriage in 2024 in respect of the wife.

14.  I have also noted two mitigation letters from the 1^st defendant from his mother and his former employer at “Sealife Hong Kong”.  I am told the 1^st defendant’s mother considers him responsible and was deeply shocked of leaving upon his misdeeds and his former employer also speaks highly of him.

15.  As far as the 2^nd defendant’s mitigation is concerned, he is single and as I have said earlier, he has a clear record.  Born in Mainland China, came to Hong Kong when he was 12 years old, raised in a close-knit family.  His father has unfortunately passed away two years prior to this charge.  His mother has also had unfortunate medical problems as well.

16.  The 2^nd defendant, I am told, is remorseful, understands the seriousness of the offence, and asks for a number of factors to be considered when sentencing, particularly the effect of his remorse, clear record that he has whilst incarcerated, and he has been incarcerated for some time now, become, converted to Christianity and is involved in religious activities within the prison.  He has also written mitigation letters to court showing what is described as genuine remorse and sincerity in turning over a new leaf.

17.  Both defendants have said that and it may well be, because of their previous clear records, that is something that may well be possible in their cases. 

18.  Now, to deal with the general approach to sentence, there are guideline sentencing in respect of cocaine and also cannabis in THC or herbal form.  As far as the cocaine is concerned, the operative case now is HKSAR v Huang Ruifang; that is [2025] HKCA 234.  A figure of up to 10 grammes of cocaine would bring a sentencing guideline of between 2 to 5 years’ imprisonment. 

19.  As far as the cannabis is concerned, it is a bit of a more complicated calculation.  The general case to be looked at is HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329.

20.  Now, when THC is considered in herbal cannabis, it is considered to be 90 per cent by volume and the THC is converted through to herbal cannabis, which in this case on conversion would give a figure of 2,259.84 grammes of herbal cannabis.  That would bring it within a guideline of 16 to 24 months, which is operative for 2 to 3 thousand grammes of herbal cannabis. 

21.  As far as the mathematical figure for the drugs is concerned, based on the volume and quantity of drug, for cocaine it would be a starting point for sentence of 4 years and 5 months’ imprisonment and for the cannabis it will be 1 year and 6 months’ imprisonment.

22.  In this case, of course, there was a combination of drugs, “a cocktail”, as is referred to.  The correct approach can be determined from the case of HKSAR v Yip Wai Yin, at CACC 80/2003.  I have determined the correct approach in this case would be the combined approach, in which one would look at the most potent drug, which would be considered the primary or base drug for calculation of sentence, and there would be a discretionary addition for any other less potent drug.  Here, the primary or base drug is clearly cocaine, as it is the most potent of the drug.

23.  Furthermore, when determining the appropriate starting point for a combination of drugs, it is sometimes necessary to look at three further tests.  They are described as the absurdity test, the conversion test, and the ratio test.  I do not want to go into the details of those.  For the purposes of the calculation in this case, the conversion test is the only one which perhaps gives a useable result, which would attract a starting point, for a combination of drugs in this case, of 4 years and 11 months’ imprisonment.

24.  I also note that when determining the starting point for sentence in a case such as this, the court should note that six-step approach in HKSAR v Herry Jane Yusuph and also that the sentencing approach should move away from a rigid arithmetical approach and involve a more discretionary approach based on the defendant’s role and culpability, and that approach would include looking at the defendant’s role and culpability, the relevant sentencing band, any aggravating or mitigating factors, and the general overall totality of sentence. 

25.  The 1^st and 2^nd defendants are jointly charged and both have clear records.  Their roles are similar in managing a storehouse and delivering the drugs. 

26.  The aggravating factor in this case would be the presence of more than one drug.  I do note, however, that the drug in this case is cocaine and herbal cannabis, THC - in other words, the cocktail is of a potent drug and a less potent drug rather than a cocktail of two potent drugs - and that is a factor I will consider when determining the extent to which the aggravating factor should be considered in sentencing.

27.  The main - in fact, the sole - mitigation factor is the defendants’ plea of guilty, which, given the defendants both are of clear record, has a significant effect in determining both the starting point for sentence and the appropriate final point for sentence.  Both defendants are entitled to a full one-third discount from the starting point for sentence.

28.  I have already indicated the sentencing band or guideline would allow for a primary sentence of 4 years and 5 months’ imprisonment for cocaine and 18 months for the cannabis.  The conversion test would put a figure of the starting point at around 59 months’ imprisonment.

29.  As I said, I already considered the defendants’ backgrounds in this case and, having regard to that, and also to the relevant sentencing guidelines, I am going to take a starting point for sentence in this case of 57 months’ imprisonment, which will be reduced to a final sentence of 38 months’ imprisonment, having regard to the defendants’ pleas of guilty.