HKSAR v. CHAN HO YIN AND OTHERS

HCCC 449/2024

[2026] HKCFI 496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 449 OF 2024

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S E N T E N C E

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1.  The 1st, 2nd and 3rd defendants, each 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 30 December 2024. The case was then committed to the Court of First Instance for sentence. Before this court, the 1st, 2nd and 3rd defendants have confirmed their pleas and their agreement to the Summary of Facts through counsel.

2.  The particulars of the charge state that on the 25th day of May 2023, at Room 418, 4th Floor, Viet Luen Factory Building, No. 126 Wai Yip Street, Kwun Tong, Kowloon, in Hong Kong, the defendants unlawfully trafficked in a dangerous drug, namely 79.988 kilogrammes of cannabis in herbal form.

3.  The Summary of Facts admitted by the defendants provide, inter alia, as follows.  On 25 May 2023, police officers mounted an anti-narcotics operation near Room 418, Viet Luen Factory Building, No. 126 Wai Yip Street, Kwun Tong, Kowloon (“the Room”).

4.  At around 2:09 am on that day, PW1 and parties spotted the 1st defendant entering the Room furtively and thus approached the 1st defendant for enquiry.  Upon revealing their police identity, the 1st defendant swiftly entered the Room and tried to close the door blocking PW1’s entry but was unsuccessful. 

5.  Upon the 1st defendant entered the Room, PW1 discovered that the 2nd defendant was present inside.  Upon search, the following were found in the living room of the Room:

(1) 160 bags (71 black plastic bags and 89 tinfoil bags) containing a total of 79.988 kilogrammes of cannabis in herbal form;

(2) an electronic scale;

(3) an electronic sealer;

(4) a cutter;

(5) large amounts of frozen fish; and

(6) paper boxes.

6.  The 1st and 2nd defendants were arrested.  Under caution, the 1st defendant admitted receiving HK$20,000 for unpacking the cannabis, whereas the 2nd defendant admitted being recruited by ‘Ah Yin’, that is the 1st defendant, to assist in unpacking the cannabis for HK$1,000 reward.  The 1st defendant also had with him two mobile phones at the material time.

7.  Investigation revealed that the 3rd defendant had escorted the cannabis to Viet Luen together with D1 and D2 on 24 May 2023.  The 3rd defendant was intercepted while leaving Hong Kong via Lok Ma Chau Control Point on 25 May 2023 and was brought to Sheung Shui Police Station and arrested by police on 26 May 2023.  Under caution, the 3rd defendant claimed that he did not sell the drugs but was only tasked by “Ah Shing” to escort the truck of drugs from Tuen Mun to the cache in Viet Luen, and he left when the drugs were unloaded.

Video-recorded interviews – D1

8.  Two video-recorded interviews were conducted with the 1st defendant on 25 May 2023. Under caution, the 1st defendant stated, inter alia, the following:

(1) He met Chan Tsz-hin (also known as “Dor Tsai”) at a bar in Tsim Sha Tsui in April 2023;

(2) In need of money, he was recruited by Dor Tsai to unbox cannabis at Viet Luen, for a remuneration of between HK$15,000 and $20,000;

(3) He asked his ex-coworker, “Ah Ho”, that is the 2nd defendant, to help unpack the goods, as he found that there were too many goods to unbox, and offered to pay the 2nd defendant HK$1,000 to HK$2,000 as reward;

(4) He was instructed to prepare for unboxing on phone by Dor Tsai, who asked him on the location (the Room) and its password, and informed him when the vehicle carrying the goods would depart from Tuen Mun;

(5) Upon the vehicle’s arrival, he paid the driver HK$700, unloaded approximately 160 boxes of cannabis and fish with the 2nd defendant, and later paid HK$1,000 for his help;

(6) The cannabis, wrapped in black plastic bags, was concealed under fish in each carton. He used the cutter found in the Room to open all the cartons;

(7) He mistakenly cut open one pack of cannabis while unboxing the goods;

(8) All the cannabis was unboxed by himself and the 2nd defendant;

(9) He had been told by Dor Tsai that tools could be found inside the Room;

(10) He confirmed owning the phone number 5533 9496, and claimed that the other phone was given by Dor Tsai about two weeks ago;

(11) He documented the process by taking photos of the vehicle, the fish, and the cannabis, and sent them to Dor Tsai;

(12) He sent the door password of the Room to the 2nd defendant’s number at around 2315 hours;

(13) He attempted to flee from the scene when approached by police due to fear.

D2

9.  Two video-recorded interviews were conducted with the 2nd defendant on 25 May 2023. Under caution, the 2nd defendant stated, inter alia, the following:

(1) He was recruited by the 1st defendant, his coworker, one week ago to assist with transporting goods;

(2) On 24 May 2023, he met the 1st defendant at Viet Luen, as instructed, for the task;

(3) They waited for the truck and later unloaded the 160 boxes of goods from the truck to the Room together with an unknown male and the truck driver;

(4) The 1st defendant cut open the black plastic bag mistakenly and so he realized that cannabis was wrapped inside the bags;

(5) As he had not yet received the promised HK$1,000 from the 1st defendant, he chose not to leave the Room before receiving his payment, despite being aware the goods contained cannabis;

(6) He was arrested by the police when he intended to dispose of the cartons after unboxing;

(7) He confirmed that all the cannabis shown to him was seized from the Room;

(8) The cutter seized from the Room was used for unboxing;

(9) He had sent two photographs of the cannabis (wrapped in black plastic bags) to the 1st defendant and received the Room passcode from the 1st defendant via WhatsApp;

(10) He confirmed owning the phone number 6085 XXXX.

D3

10.  A video-recorded interview was conducted with the 3rd defendant on 26 May 2023.  Under caution, the 3rd defendant stated, inter alia, the following:

(1) He was not acquainted with the 1st defendant or the 2nd defendant, but he knew Dor Tsai through his inmate “Ah Fai” at a psychiatric hospital;

(2) Tasked by Dor Tsai and Ah Shing via WhatsApp, he helped loading goods into the Hang Wai cache, sorting them by carton colour with seven strangers. After loading all brown cartons into the Hang Wai cache with a key from Ah Shing, he passed the key to another person since he had to escort white cartons containing cannabis to Viet Luen;

(3) He directed the GoGoVan driver to pick him up on the 2nd floor of Hang Wai;

(4) He confirmed owning the phone number 9173 XXXX;

(5) He had phone contact with 5932 XXXX, concerning his arrival time at Viet Luen and was given parking directions via WhatsApp;

(6) Despite completing the delivery to Viet Luen, he has not received the promised HK$15,000 yet;

(7) The GoGoVan transport to Viet Luen was organized by Ah Shing, with the delivery settled by an unknown male at Viet Luen;

(8) He confirmed the goods reached the 4th Floor, and he left the scene before 8 pm on 24 May 2023 without visiting the Room;

(9) Contact details were shared;

(10) He had deleted all relevant WhatsApp communications as instructed by Dor Tsai.

11.  CCTV of Viet Luen Factory Building captured the 1st to 3rd defendants loading goods into the lift together between 1916 and 2001 hours on the night of 24 May 2023.

12.  The narcotic content of the drugs in this case was subsequently confirmed by the Government Chemist.  The total drugs seized are 79.988 kilogrammes of cannabis in herbal form.

13.  The estimated street value of the drugs is around HK$16,797,480.

14.  The defendants now accept and admit that at all material times they knowingly possessed all subject dangerous drugs seized for the purpose of unlawful trafficking.

15.  Regarding the personal background of the defendants, the 1st defendant is 27 years of age.  The 1st defendant is a Hong Kong-born Chinese.  He got married in 2017.  However, the marriage did not last long.  He got divorced in 2021.  The marriage, although short, brought him two young sons now aged eight and six, respectively.

16.  After the divorce, the 1st defendant became single, yet he cohabited with his girlfriend who gave birth to a daughter with him out of wedlock.  The daughter turns 3 years old now. Altogether, the 1st defendant has three young children to support and look after.  The 1st defendant comes from a grassroots family in that his father is a construction worker, while his mother worked as a waitress in a catering service.

17.  The 1st defendant left secondary school after completion of Secondary Form 3.  He joined a two-year course of mechanical engineering organized by the Vocational Training Council.  After completion of the course, he was introduced by his father to follow a plumber to work at construction sites as the 1st defendant wished to learn a skilled trade for a living.

18.  However, what frustrated the 1st defendant was that he did not have enough work to do due to the outbreak of the COVID-19 pandemic.  The 1st defendant’s income was severely affected.  From time to time, the subcontractors failed to pay the 1st defendant’s wages despite his completion of the work.  The economic downturn caused more and more contractors’ companies either to close down or retrench workers.  The 1st defendant was of no exception and became redundant.

19.  In order to make his ends meet, the 1st defendant changed to work as a kitchen worker at a restaurant in Tsim Sha Tsui, a job that was completely new to him and for which he was not trained for.  Despite having a much lower income and longer working hours, the 1st defendant was willing to work hard and learn.  Unfortunately, that restaurant closed down and made the 1st defendant unemployed again.

20.  About a month before the 1st defendant was arrested in the present case, he came to know a person nicknamed Dor Tsai, as mentioned in the Summary of Facts.  After knowing the 1st defendant’s financial situation, Dor Tsai proposed to the 1st defendant that if the 1st defendant agreed to handle the cannabis for him, the 1st defendant would be rewarded in the region of 15,000 to HK$20,000 per lot.

21.  Dor Tsai also asked the 1st defendant to get more assistance from friends as there would be more and more goods to come.  The more the 1st defendant handled for him, the more he would gain, as promised by Dor Tsai.  The 1st defendant foolishly agreed out of greed and invited the 2nd defendant to join.

22.  Regarding the 2nd defendant, he was born and brought up in Hong Kong and is now 34 years of age. At the time of the offence, he was 32.  He received education up to Secondary Form 5 standard.  The 2nd defendant is married but has been separated from his wife.  They have no children. 

23.  Prior to his arrest, he was employed as a chef and earned around HK$20,000 per month, and he lived alone.  The 2nd defendant got into the bad habit of gambling and started piling up gambling debts.  Eventually, he fell prey to being manipulated to commit the present offence to repay his gambling debts.  The 2nd defendant is not a drug addict.

24.  The 2nd defendant has one previous conviction record which occurred on 8 December 2021 when he was sentenced to, inter alia, 14 days’ imprisonment suspended for 18 months. That conviction was for “being a manager of scheduled premises failing to comply with the directions of the Secretary for Food and Health”, which was not drug related.

25.  Regarding the personal background of the 3rd defendant, the 3rd defendant was born on 11 November 1990 in Hong Kong.  He is now 34 years of age.  At the time of the offence, he was 32.  He is single and lived with his mother and his eldest sister in a public housing estate.  He was educated up to Secondary Form 2 level in Hong Kong.  At the time of his arrest, the 3rd defendant was unemployed.  The 3rd defendant lived in a public housing estate with his mother and younger brother. 

26.  The 3rd defendant has no drug habit.  The 3rd defendant suffered from psychiatric illness, I am told. According to the medical record, the 3rd defendant was diagnosed with suffering from bipolar disorder for about 13 years and was previously treated in the United Christian Hospital.  He was on medication with good compliance during his remand. 

27.  The 3rd defendant has four previous convictions from 2008 to 2022.  All four convictions are not related to drugs. 

28.  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 guideline 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 the 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”.

29.  Regarding step 1, that involves the identification of the appropriate initial sentencing range applicable to the quantity of drug involved.  The total quantity of herbal cannabis involved is 79.988 kilogrammes.  According to the sentencing guideline for trafficking in herbal cannabis set out in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, for trafficking in between 45 kilogrammes and 90 kilogrammes, the sentence would be 96 to 120 months’ imprisonment.

30.  Regarding step 2, concerning the role and culpability of the defendants, I accept that, based on the Summary of Facts, the defendants were little more than couriers or storekeepers of the drugs.

31.  Regarding step 3, based on my findings made at step 2, I would adopt the following “notional sentence after trial” for the offence in question:

(i) Regarding the 1st defendant, 9 years and 6.6 months’ imprisonment;

(ii) Regarding the 2nd defendant, 9 years and 6.6 months’ imprisonment;

(iii) Regarding the 3rd defendant, 9 years and 6.6 months’ imprisonment.

32.  Regarding step 4, I am required to consider any aggravating factors which would go to enhance the “notional sentence after trial” identified under step 3.  There is no such aggravating feature in the present case.

33.  Regarding the 2nd defendant, in view of the fact that the present offence was committed very shortly before the expiration of his suspended sentence, and the suspended sentence was for a different and a relatively minor non-drug related offence, I will exercise my discretion in not activating the 14 days of imprisonment.

34.  Regarding step 5, I consider that the only factor which may reduce the defendants’ sentences are their timely guilty pleas, for which I will give them a one-third discount. Accordingly, the defendants’ sentences are reduced to the following:

(i) Regarding the 1st defendant, 6 years and 4 months’ imprisonment;

(ii) Regarding the 2nd defendant, 6 years and 4 months’ imprisonment;

(iii) Regarding the 3rd defendant, 6 years and 4 months’ imprisonment.

35.  Finally, I consider the sentences indicated above to be fair, just, and balanced sentences, taking into account the circumstances of the present case and the circumstances of the defendants.

36.  Accordingly, the defendants are each sentenced to 6 years and 4 months’ imprisonment.