HKSAR v. Chen Shuhong
Read the full judgment text of HCCC 301/2024 on BabelCite. This High Court CFI judgment was delivered on 5 December 2024.
Cites 16 cases
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HCCC 301/2024 [2025] HKCFI 1003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 301 OF 2024 -----------------
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--------------------------------- Transcript of the Audio Recording of the Sentence in the above Case
COURT: The defendant pleaded guilty to two counts of trafficking in dangerous drugs in the Eastern Magistrates’ Court on 19 September 2024. He was committed to the Court of First Instance for sentence. The defendant confirms his plea and his agreement to the Summary of Facts before me today. The incident which gave rise to the two counts took place on 29 July 2023. Count 1 concerned the drugs found on the defendant when he was intercepted at Lift Lobby, Ground floor, Heung Wo Building, 72 Heung Wo Street, Tsuen Wan, New Territories (“the Building”). The quantities were 1,999.99 grammes of a solid containing 1,530.82 grammes of ketamine and 142.60 grammes of 2‑fluorodeschloroketamine (“2FDCNEK”). Count 2 related to the drugs found at Room B, Rooftop of the Building. These were quantities of two different types of drugs, namely, 8,264.90 grammes of a solid containing 6,351.98 grammes of ketamine and 540.39 grammes of 2FDCNEK and 5.94 grammes of a solid containing 5.40 grammes of cocaine. The Facts On 29 July 2023, the police laid ambush at the building at around 8.34 pm. The defendant was seen carrying a paper bag coming out from the lift of the building and walking towards the lift lobby at the ground floor. When the defendant was intercepted, he did not comply with the officer’s instructions, pushed him away and fled towards the rear case. The defendant was stopped at the staircase. When the officer revealed his police identity to the defendant again and demanded a search on him, the defendant refused to cooperate and tried to resist by waving his right hand. The officer subdued the defendant on the ground and handcuffed him. Upon search, one exit-entry permit for traveling to and from Hong Kong and cash of HK$8,380 were found. The defendant revealed that he lived at the Rooftop of the Building but refused to state which unit he lived. Inside the paper bag, there were eight coloured plastic bags containing 14 transparent plastic bags and three transparent plastic packets containing a total of 1,999.99 grammes of a solid containing 1,530.82 grammes of ketamine and 142.60 grammes of 2FDCNEK. This forms the subject matter of Count 1. The defendant was arrested and cautioned for trafficking in dangerous drugs. Under caution, he said, “I could not run away anymore as you have found the packs and opened them. I have nothing to say, they are dangerous drugs.” Subsequent investigation revealed that the defendant lived at Room B, Rooftop of the Building (“Room B”). Upon search of Room B, the following items were found:
In total, 6,351.98 grammes of ketamine and 540.39 grammes of 2FDCNEK and 5.40 grammes of cocaine were found and seized from Room B. In a subsequent video-recorded interview, the defendant stated under caution that he came to Hong Kong for sightseeing and went to Room B to look for his wife but in vain. He did not have the means of contact of his wife nor did he have the keys to Room B. He said he lived at his friend’s home in To Kwa Wan but he did not have the address or the key to that place. He also said he found the paper bag outside Room B’s door and intended to take it to the police station before the arrest. The defendant’s palm print was found on the cash counting machine seized from the table in the living room. His fingerprint was also found inside the drawer under the bed in which the dangerous drugs were found. The DNA of the defendant was found in four cigarette butts and one plastic bottle seized from the room. CCTV record of the building between 20 and 29 July 2023 captured the defendant regularly and frequently entering and leaving the building daily and he had stayed overnight in the building. It also captured the defendant holding a paper bag immediately before the interception by the police. The movement records show the defendant entered Hong Kong on 10 July and left on 27 July 2023. He entered Hong Kong again on the same day on the strength of two-way permit. The total estimated street value of all the dangerous drugs seized was about $5,426,954.28. The defendant now admits and accepts that he knowingly trafficked all the dangerous drugs in this case. Antecedent and Mitigation The defendant was 31 years old at the time of the offence. He is now 33 years old. He was born in mainland China and came to Hong Kong by a two-way permit. He has no previous convictions in Hong Kong. He was educated up to Secondary 3 in the mainland. After he left school, he said he became a deliveryman working in the mainland. Mr Ching clarified today that the defendant has two marriages. He divorced his first wife in 2018 and he married a Hong Kong resident since April 2023. In mitigation, the defendant had pleaded guilty at the first earliest opportunity. Mr Ching submitted that the defendant is remorseful. Consideration of Sentence I will approach the sentencing by applying the six-step approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150. Step one is to identify relevant guideline band applicable to the quantity concerned. Counts 1 and 2 occurred on the same day at different locations. I would regard the two offences as arising from the same incident, representing one occasion of trafficking in the total quantity of drugs. I would impose a sentence on both offences for that total. Such an approach more truly reflects the defendant’s culpability as the reality of the situation was that on the day of the charge, he was in an overall possession of the drugs found at the two locations of the building: see HKSAR v Wan Lau Mei [2014] 4 HKC 75 at paras 27-30 and HKSAR v Chong Cho Kit (CACC 363/2005). In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in cocktail drugs. The court may either take an individual approach or a combined approach in sentencing for trafficking in a combination of drugs. In HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, the Court of Appeal highlights the importance for a sentencing court to carefully consider which of the two methods will result in the most appropriate sentence on an offender for trafficking in a cocktail drugs. As a general rule, where the types of dangerous drugs are similar in potency, the combined approach would be preferred, whereas the individual approach may be better suited for cases where the types of drugs are disparate in quantity and potency. I will consider the two approaches in deciding the appropriate sentence, which is fair and just in all the circumstances. I also cross-checked them with the three tests set out in HKSAR v Chan Yuk Leong CACC318/2013, 8 August 2014, unreported and HKSAR v Islam Majharul [2020] 3 HKLRD 146, namely, the absurdity test, conversion test, and the ratio test. The sentencing tariffs for trafficking in ketamine are provided for in SJ v Hii Siew Cheng [2008] 3 HKC 323 and HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. The nature of fluorodeschloroketamine was considered in HKSAR v Ng Tsz Ching [2020] 257, HKSAR v So Wan Cheung [2020] HKCFI 759, and HKSAR v Lo Kwok Tin [2021] HKCFI 2758. I will treat 2FDCNEK as ketamine for sentencing purposes. Mr Ching also agreed with this sentencing approach. The total amount of ketamine and 2FDCNEK is thus 8,565.79 grammes. The Court of Appeal held in Chow Yau Ching that the appropriate starting point for trafficking in 2,000 grammes and 3,000 grammes of ketamine should respectively be no less than 18 years and 20 years. In HKSAR v Wong Ka Chun CACC52/2015, the Court of Appeal approved the sentencing judge’s adoption of a starting point of 24 years’ imprisonment for 8.33 kilogrammes of ketamine. I will also adopt a starting point of 24 years’ imprisonment for ketamine and 2FDCNEK seized in this case. For cocaine, the sentencing tariffs are provided for in R v Lau Tak Ming [1990] 2 HKLR 370. For quantities under 10 grammes of cocaine, the sentencing band is 2 to 5 years’ imprisonment. 5.40 grammes of cocaine would attract a sentence of 3 years and 7 months’ imprisonment. Therefore, the results of the different approaches and tests were as follows:
For conversion test, although cocaine is the more potent drug, its quantity only made up 0.06 per cent of the total quantity of narcotics. On the other hand, 5.40 grammes is not so small that it can be ignored. But if it was sentenced separately, it would artificially inflate the sentence. See HKSAR v Wong Kam Wo [2001] 2 HKLRD 290 and HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367. In Wan Lau Mei, the Court of Appeal considered that the proper way to have regard to it is after an initial starting point has been identified. The sentencing court can then give consideration to whether this initial starting point should be enhanced to allow for the fact that the defendant was trafficking in a number of different types of drugs. In mitigation, Mr Ching submits that as a matter of fairness and common sense, the combined approach should be adopted. To achieve a reasonable and realistic sentence, I will adopt the combined approach and consider the appropriate starting point for the drugs seized is one of 24 years’ imprisonment. As for the defendant’s role and culpability, Mr Ching submits the defendant was a courier or a storekeeper, which is the role upon which the specific guidelines are based. The defendant’s palm print was found on the cash counting machine. His fingerprints were found near a drawer where drugs were stored. The total of $67,920 cash was found on the defendant and in Room B, which was a rather large sum for someone working as a delivery man. He was also seen carrying the drugs at the lift lobby. Mr Ching accepts that the items found on him at the lift lobby and in Room B revealed that he was involved in the delivery and some sort of packaging of the drugs. While I am suspicious as to the defendant’s role as to whether he is more than a mere courier or a storekeeper, it is by no means certain on the evidence before me as to what his exact role is. I will sentence the defendant in accordance with the guidelines as if the defendant is a courier. There is an aggravating factor involved in the present case under step four of Herry Jane Yusuph. Two kinds of drugs were being trafficked, that is ketamine and cocaine. I have classified 2FDCNEK as the same type of drug as ketamine. It is a factor recognised by the court as deserving of an enhanced sentence, even though separately packed and not in a prepared mixture, because in such a situation, the trafficker is able to cater to a far wider market with enhanced profits: see HKSAR v Yim Hung Lui, Ricky (Unrep., CACC 266/2011, 13 February 2012), HKSAR v Islam Azharul [2020] 1 HKLRD 644 and HKSAR v Chan Yuk Leong CACC 318/2013. I will enhance the sentence by 6 months. Now there is another matter which is the defendant had come from the mainland on a two-way permit to commit this crime. The Court of Appeal has considered it is a serious aggravating factor for people to come to Hong Kong for the specific purpose of committing a serious crime in this territory: see HKSAR v Li Yonghong CACC 254/2013, at para. 23. When I raised this matter with Mr Ching, he informed me that the defendant and Madam Wong Ngai-ching were married and produced a copy of the marriage certificate showing they got married in April 2023. Mr Ching submits that the defendant did not come to Hong Kong for the specific purpose of committing a crime as stated in his interview. Consequently, I will not consider this as a factor to enhance his sentence. Regarding mitigating factors, personal circumstances count for little unless they are exceptional in trafficking cases. There are none in this case. The real mitigating factor is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point, which brings the sentence down to 16 years 4 months’ imprisonment. Finally, step six of Herry Jane Yusuph is to consider the totality of sentence where more than one count is involved or more than one aggravating feature is engaged to ensure the sentence is fair and balanced. This step is to stand back and observe the overall sentence to ensure it is fair, balanced and just in all the circumstances of the offence and the offender. I am of the view that the ultimate sentence of 16 years 4 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality. I therefore impose a sentence of 16 years 4 months’ imprisonment on both Counts 1 and 2, and I further order that the sentence for Count 2 shall be served concurrently with the sentence for Count 1. Thus, the final sentence I would impose on the defendant is one of 16 years 4 months’ imprisonment.
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Cases cited in this judgment