HKSAR v. LI TSZ HIN JASON

HCCC 273/2023

[2025] HKCFI 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 273 OF 2023

(Related to HCCC 36/2022)

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REASONS FOR SENTENCE

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1.  The defendant pleaded not guilty to one charge of Conspiracy to traffic in a dangerous drug before Magistrate Ms. Vivian Ho and was committed to the Court of First Instance for trial.

2.  Particulars of the charge are that the defendant, between 1^st October and 20^th November 2020, both dates inclusive, in Hong Kong, together with CHUNG Yu-kit and other persons unknown, conspired to traffic in dangerous drugs, namely a total of 1,339.32g of solid and crystalline solid containing a total of 1,132.23g of ketamine, and a total of 600.56 grammes of crystalline solid containing a total of 594.17g of methamphetamine hydrochloride (commonly referred to as Ice).

3.  The trial was fixed to commence on 3^rd June 2025.

4.  By a letter dated 10^th January 2025, counsel for the defendant Mr. Adonis Cheung informed the court that the defendant would likely plead guilty to the charge.  At the case management hearing on 14^th January 2025, the defendant confirmed his intention to do so.

5.  At the plea and sentence hearing on 28^th March 2025, the defendant pleaded guilty, admitted to the summary of facts and was duly convicted.

6.  The named co-conspirator CHUNG Yu-kit (hereinafter as ‘CHUNG’) was charged in separate proceedings[1] for trafficking in the drugs particularized in the present charge.  His case was brought up on the same day as the defendant’s plea and sentence hearing, when he confirmed his guilty pleas to the two counts of trafficking in dangerous drugs he was facing, and was sentenced to a total of 10 years 6 months’ imprisonment.

SUMMARY OF FACTS

7.  CHUNG was intercepted at about 10:42pm on 20^th November 2020 by plainclothes police officers conducting an anti-narcotic operation in the vicinity of 10 Temple Street, Yau Ma Tei (hereinafter as ‘the Building’) when he was seen leaving carrying a paper bag, later found to contain dangerous drugs.  With the key found on CHUNG, police officers entered a sub-divided flat on the 16^th floor of the Building.  CHUNG did not know the code for the electronic door lock of Room 3, and he would contact a “Big B” every time he needed access and the door would be remotely unlocked.

8.  Police forced open the door, entered Room 3, and found 89 small bags of Ice, 9 bags of ketamine, a tinfoil tray of ketamine, and some ketamine in A4-sized paper.  Packing equipment including scales, empty small plastic bags, sealing machine, scissors and plastic spoons were also seized.

9.  The estimated street value of the ketamine and Ice seized from Room 3 was, respectively, HK$858,504 and $396,931, being $1,255,435 in total.

10.  CHUNG told the police that he agreed to pack and deliver the drugs to make some money to support his family after he became unemployed during the pandemic.  He said it was the defendant who contacted him via WhatsApp and offered him $4,000 per day to pack drugs in Room 3 and then deliver them to others.  Upon CHUNG saying yes, the defendant on 24^th October told him to migrate their communications to WeChat.  

11.  CHUNG then started to receive instructions via Telegram from a person known as “B Gor” or “Big B”, telling him where and when to collect the drugs, and when and where to make the deliveries, which were usually at MTR stations.  CHUNG was told to use the two mobile phones left in Room 3 to receive instructions for the collections and deliveries.  

12.  CHUNG said he was paid once a week, usually by bank transfers.  There was one occasion when he met up in Mongkok with the defendant, who paid him $5,100 cash. That was the only time he had seen the defendant in person.

13.  The defendant also made 2 deposits to CHUNG’s bank account on 3^rd and 16^th November, in the respective amount of $4,500 and $2,400.  

14.  Based on the WeChat communications found in CHUNG’s phones, the defendant and CHUNG began their conversation in WeChat in early November 2020.  The defendant talked about remuneration, how to account for the quantity of drugs that CHUNG had packaged and delivered.  Ketamine and 'Ice' were referred to as “films” and “photos”.  One of the photographs sent by the defendant on 16^th November was a deposit slip showing the above 16^th November transfer of $2,400 from the defendant’s Hang Seng Bank account to CHUNG’s bank account.  Later investigation revealed that the defendant was the sole signatory of this account.  

15.  The defendant, “AK”, “B Gor” and CHUNG belonged to a WeChat group where messages related to drug trafficking were exchanged.  CHUNG would send photographs showing bags of drugs and the weighing of the drugs to this group.  There was also a photograph of the rental receipt for Room 3.

16.  Relying on the above information, the police put the defendant on a wanted list.  He was eventually located and intercepted outside a hotel in Mong Kok on 12^th April 2022.  Some cocaine was found on his person but this possession is not relevant to the present case.  

17.  Investigation into the defendant’s WhatsApp account revealed that it was actually registered under the name of the defendant’s brother.

18.  The estate agent who handled the tenancy of Room 3 told the police that it was a ‘Mr. Kwok’ who had rented the room from 1^st October 2020, being the month before CHUNG’s arrest, and the lease was supposed to last 2 years.

19.  At an identification parade, CHUNG identified the defendant as the person who handed him the $5,100 on that one occasion when he was paid for dealing with the drugs in Room 3.

20.  Paragraph 18 of the summary of facts states that:

“The conspiracy began in October 2020 and continued up to the date of Chung’s arrest on 20^th November 2020. The scope of the conspiracy clearly relates to a greater quantity of dangerous drugs than the amount Chung has pleaded guilty to as Chung was apparently working for D on an almost daily basis. However, it is impossible on the evidence to quantify the total amount of drugs trafficked during the period of the conspiracy. The evidence does, however, indicate that certainly the majority of the drugs trafficked were ketamine and Ice.”

21.  By his admission to the summary of facts, the Defendant had accepted that at the material time he unlawfully conspired with CHUNG and others to traffic in dangerous drugs.

PREVIOUS CONVICTIONS

22.  The defendant has one conviction for Criminal Damage, for which he was put on 12 months’ probation and ordered to compensate $100 on 27^th September 2018.  His only other conviction is dated 10^th March 2023, which was for the possession of the cocaine found on him when he was intercepted by police officers on 12^th April 2022.  He was sentenced to 4 months’ imprisonment by a Magistrate.

BACKGROUND AND MITIGATION

23.  The defendant was born in September 2001 and is 23 years old.  He was educated up to Form 1 in Hong Kong, and claimed to have been working as a transportation worker prior to his arrest.  He is single and lives in Wong Tai Sin with his mother and brother.  

24.  The defendant had attended and completed courses on religious studies during his remand, and has also obtained a Foot Hygiene Management Certificate in the same period.  

25.  Mr. Adonis Cheung for the defendant accepted that the defendant did recruit and pay CHUNG and is the more culpable of the two.  He, however, pointed out that there is no evidence to suggest that the defendant was the mastermind of the operation, or even someone in a high position.  The defendant was not the “B Gor” or “Big B” who sent the packing and delivery instructions to CHUNG via Telegram.  The defendant was also not the “Kwok” who was the sole tenant of Room 3 in the tenancy agreement.

26.  Mr. Cheung submits that the defendant was a foot soldier, an organiser on the ground level, but not an actual trafficker or the manager managing the actual trafficker, and the court should set the starting point on this basis.

SENTENCING

27.  The maximum sentence on conviction upon indictment for conspiracy to traffic in dangerous drugs is the same as that of trafficking in dangerous drugs, which is life imprisonment and a fine of $5 million.

28.  The sentencing guidelines for trafficking in Ice, as updated in Huang Ruifang[2], and for ketamine in Sin Chung-kin[3], and the sentencing approach as laid down in the case of Herry Jane Yusuph[4] are applicable in a conspiracy to traffic case with relevant adaptations.

29.  The following guidance in sentencing for conspiring to traffic in dangerous drugs cases was given in the Court of Appeal case of Chan Kam Loi[5]:

“100. ...But, in respect of inchoate offences it may not be possible to assess precisely the amount of drugs that were, or were going to be, trafficked. This does not mean that the Court is absolved from reaching a view on the gravity of the offence, merely that it does not have the advantage of doing so in the usual way. Of course, quantity is not the only fact relevant to the assessment of gravity but it has provided the courts with a ready means of identifying an appropriate starting point which can then be enhanced should there be present aggravating factors which increase the gravity of the offence.

101. Thus, even in respect of inchoate offences, the natural course is for the Court to analyse evidence to see whether it allows the Court to reach a conclusion which fairly reflects the quantity of drugs that were trafficked or were agreed to be trafficked.

102. The evidence may not always allow of precise quantification but it may be possible to reach a view of the very least that was trafficked by recourse to inferences drawn from the evidence or assumptions based on the evidence. Such a course is permissible as long as the inferences and assumptions are based upon evidence and do not become mere speculation with no evidential foundation. Whether the evidence and the inferences that are drawn from it enable the Court to have recourse to the quantity based sentencing bands will inevitably vary from case to case. But sight should not be lost of the ultimate goal which is to make an accurate assessment of the gravity of the offence so as to enable the Court to impose a just sentence.”

30.  The relevant calculations for trafficking in the drugs seized from Room 3 had been done in CHUNG’s case and I will not repeat the step by step calculations here.  Based on the role and culpability of a courier and storekeeper, and the aggravating factor of trafficking in more than one type of dangerous drug, the combined starting point was set at 19 years’ imprisonment for 1,132.23g of ketamine and 594.17g of Ice.

31.  I note that based on the summary of facts, the defendant could have been charged jointly with CHUNG’s trafficking.  Yet that is not the case, and nor was CHUNG charged jointly with the defendant for conspiring to traffic in dangerous drugs, despite CHUNG being a named co-conspirator in the present case.

32.  To ensure fairness and parity in sentence, I will exercise my sentencing discretion as follows.  The said combined notional starting point to be adjusted upwards to reflect the more serious role and culpability of the defendant, as he was the person who recruited CHUNG, who gave CHUNG the instructions regarding the trafficking, and the person who was responsible for the payments to CHUNG for the trafficking.  As someone who is trusted with the handling of money by those behind the operation, the only reasonable inference is that the defendant was higher up the chain of operation, and thus more culpable than CHUNG.

33.  The adjustment is to be 12 months, taking the starting point up to 20 years.

34.  The defendant’s only drug related previous conviction was after his arrest for the present case.  He had completed serving that sentence.  I have considered the issue of totality in relation to the present sentence.  That possession case was totally unrelated to the trafficking in Room 3.  It was cocaine that the defendant was in possession of, which was not the type of drugs being trafficked by CHUNG, nor the type they had conspired to traffic.  The sentence for the possession charge was short.  I do not see any reason why that sentence should not be served wholly consecutively to the present sentence, and this is the order I would have made if it were required to be made.  

35.  There are no other aggravating factors that would require further enhancement.

36.  The only mitigating factor is the defendant’s guilty plea.  Since the plea was entered after the trial dates had been set, but before the first day of trial, according to the case of Ngo Van Nam[6], the defendant is entitled to no more than a 20 to 25% discount for his plea.  

37.  Given that there was still 5 months until the trial would have started, I find that he should be given a 25% for his plea.  The defendant is, therefore, sentenced to 15 years’ imprisonment after plea.