HKSAR v. NG HO LUN

DCCC 195/2025

[2026] HKDC 574

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 195 OF 2025

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REASONS FOR SENTENCE

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The plea

1.  The Defendant pleaded guilty to Charge 4 and admitted to the relevant facts and was so convicted.  The prosecution applied to put Charges 1 to 3 into court file and I so ordered. 

Admitted facts

2.   At around 1:24 a.m. on1^st October 2024, PC 8697 (PW1) and PC 24822 (PW2) attended the scene for enquiry of a traffic accident, during which, PW1 spotted a few packets of dangerous drugs in the pull cup of the offside front door of the Defendant’s car ZK 5803 (the “Car”). Upon search, PW1 found and PW2 seized the following items: (1) 3 transparent resealable plastic bags containing a total of 1.22 grammes of solid containing 1.03 grammes of ketamine; (2) 1 transparent resealable plastic bag containing 23 plastic bags containing a total of 15.8 grammes of solid containing 13.5 grammes of ketamine; (3) 1 transparent resealable plastic bag containing 20 plastic bags containing a total of 3.53 grammes of solid containing 3.08 grammes of cocaine; (4) HK$13,020.50 cash; (5) 1 transparent resealable plastic bag containing 50 plastic bags containing atotal of 9.39 grammes of a solid containing 8.25 grammes of cocaine; (6) 1 transparent resealable plastic bag containing 49 transparent resealable plastic bags containing a total of 9.22 grammes of a solid containing 8.32 grammes of cocaine; (7) 6 mobile phones; (8) 1 white iPhone; and (9) HK$3,100 cash.

3.  At 4:12 a.m. on the same day, the Defendant was arrested by PW2 for “Trafficking in dangerous drugs”.

4.  Government chemist (PW3) subsequently confirmed the above narcotic contents.

5.  The street value of the quantity of cocaine and ketamine found was about HK$16,800.72 and HK$6,727.39 respectively.

6.  Based on the circumstances under which the dangerous drugs in question were seized, the packaging and quantity, the items found on the Defendant, it is to be inferred that at the material time, the Defendant unlawfully trafficked in dangerous drugs, namely19.65 grammes of cocaine and 14.53 grammes ofketamine (Charge 4).

Personal background and mitigation

7.  The Defendant is now 36 years of age, married with no children.  His wife resides in China.  He worked in a transportation company prior to his arrest.  From 2007 to 2016, he has a total of 6 criminal convictions, mostly are drug related offences.

8.  In mitigation, Mr Wong, counsel for the Defendant stressed that the Defendant has entered early guilty plea. He committed the present drug offence due to monetary greed.  Secondly, counsel cited a few cases and applied those cases into the present case, with a view to suggesting a band of sentence, of which he arrived at about 6 years and 2 months’ imprisonment for the trafficking charge.  Thirdly, about 3.08 grammes of cocaine was intended for self-consumption.  Mr Wong referred me to other cases and urged to reduce the sentence on that ground. 

Sentencing consideration

9.  I should deal with the preliminary issue of self-consumption of 3.08 grammes of cocaine.

10.  In respect of the issue of self-consumption, I took into account the factors[1] propounded in HKSAR v Wong Suet Hau, Ice & Another [2002] 1 HKLRD 69 (para 34). The amount for self-consumption must be a “significant proportion” of the seized drugs.  Any quantity less than a significant proportion would make no or practically very little difference to the sentence (see HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572).

11.  In HKSAR v Chow Chun Sang[2012] 2 HKLRD 1121 (para 20), it is held that possession of dangerous drugs is in itself a serious offence and there is also the issue of latent risk to consider.  Applying Cheung Wai Man below, sometimes, for instance, sentence on 80% of the drugs as if trafficking in addition to 20% as if simple possession with latent risk factor may result in a higher sentence.  

12.  In HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, to substantiate the mitigation of self-consumption, there is obviously a need to have “credible and reliable information and material, that fully and properly substantiates the proportion of the drugs intended for self-consumption” (see paras 54 and 60).  Further, even if a proportion of drugs is accepted for self-use, that part is still required to be considered in sentencing and latent risk factor may apply.  In the present case, there are two hypothetical situations: (1) trafficking of 19.65g of cocaine may attract about 68 months’ imprisonment; (2) trafficking of 16.67g cocaine (19.65g- 3.08g (self-consumption)) will attract about 65 months’ imprisonment.  Then one needs to consider 3.08g of cocaine as simple possession with possible latent risk factor, which may result in additional 6 to 18 months’ imprisonment.  Hence, self-consumption in this case may attract 71 to 83 months’ imprisonment (even assuming sentence is partly consecutive), much higher than situation 1 by applying Cheung Wai Man approach.

13.  Further, there seems to be two approaches in dealing with the issue of self-consumption, one is broad brush approach by simply receiving information from the bar table and for the court to decide whether to accept the claim for self-use and for what proportion. Another approach is to give options to the Defendant as to whether to give evidence in the witness box, subject to cross examination (overall justice approach).  Case stood down for the defence to take further instructions as to whether he will continue to suggest “self-use” and whether he will give evidence.  The Defendant chose not to advance “self-use”.

14.  In respect of trafficking in cocaine and ketamine, the Court of Appeal has laid down clear sentencing guidelines.  According to R v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, trafficking for 19.65 gramme of cocaine may attract about 68 months’ imprisonment.  On the other hand, according to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, trafficking for 14.53 grammes of ketamine may attract about 50 months’ imprisonment.

15.  As the charge is concerned with two different types of dangerous drugs with different sentencing guidelines, the court will follow the methodology as set out in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146. Considered all the circumstances, the court will adopt the combined approach.

16.  On a pure mathematical calculation, the starting point for trafficking of 19.65 grammes of cocaine should be 68 months’ imprisonment.  Trafficking of 14.53 grammes of ketamine may result in 50 months’ imprisonment, which is equivalent to sentence of 7 grammes of cocaine.  Adding 19.65 and 7 grammes of cocaine together (26.65 grammes), the starting point for combined approach of Charge 4 should be 75 months’ imprisonment.  After 1/3 deduction for his early guilty plea, the Defendant is sentenced to 50 months’ imprisonment.   

[1] (a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker's own name or in someone else's name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant's general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant's criminal record, if any, in relation to previous drug offences.