HKSAR v. Cheng Ho Yin

HCCC 184/2024

[2025] HKCFI 1367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 184 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 1 count of trafficking in a dangerous drug before Magistrate Ms. Vivian Ho, admitted to the summary of facts and was, on 3 June 2024, committed to the Court of First Instance for sentence. He confirmed his plea and admission to the summary of facts before me and his conviction was duly recorded.

2.Particulars of the charge are that the defendant, on 5^th September 2022, outside Chak Sing House, Tin Chak Estate, No. 73 Tin Shui Road, Tin Shui Wai, New Territories, unlawfully trafficked in a dangerous drug, namely 505 grammes of a solid containing 216 grammes of cocaine.

SUMMARY OF FACTS

3.The defendant was seen by a passerby acting furtively and going in and out of fire doors and loitering along the corridors on the 16^th floor of Chak Sing House at around 5:35pm on the charge date.  The police was called and arrived at around 5:56pm.  The defendant was intercepted when he emerged from a lift on the ground floor at about 6:08pm, holding a green shopping bag.

4.Upon search of the insulation bag inside, the police found multiple re-sealable plastic bags which contained all the dangerous drugs in the charge.  The weight of cocaine was handwritten on each of the plastic bags.  There were also 2 digital scales, and 2 large plastic bags with numerous empty small re-sealable plastic bags.

5.The defendant had one Samsung and one iPhone, and a wallet with $351 cash on him.

6.Under arrest and caution, the defendant claimed that he picked up the green shopping bag next to a rubbish bin at the 16^th floor lobby of Chak Sing House.

7.Subsequent investigation revealed that between 6:02 and 6:18pm that day, the defendant had maintained WhatsApp communication with a person known as “Tin Shui Wai” (hereinafter as “Tin”).  The defendant texted that he was on the 29^th floor, Tin told him to wait a while since safety was important.  Tin asked the defendant if he had picked up the bag of stuff and he replied he had.  The defendant and Tin texted about something going on downstairs, apparently referring to the passerby.  The defendant thought she had made a report to the police and that there was going to be police dogs waiting.  Tin then told the defendant to go and just ignore the passerby.  The defendant sought reassurance from Tin, asking if there were dogs at the ground floor lift lobby.  Tin said he had just walked past and that there were none.  The defendant then agreed to go down.  Their last communications were Tin asking where the defendant was, saying that he was at a location nearby and told the defendant to go there.  The defendant never did since he was intercepted.

8.In addition to the WhatsApp communications, the defendant and Tin had 6 phone calls between 4:18pm and 6:11pm made from the defendant’s two phones.

9.Between 28^th August and 4^th September 2022, there were 87 phone calls between the defendant’s Samsung phone and Tin.

10.The estimated retail price of the seized cocaine was $434,300 if they were sold in powder form, and $739,825 if they were in crack cocaine form.  

11.By his admission to the summary of facts, the defendant had accepted that he was unlawfully trafficking in all the seized dangerous drugs at the material time.

PREVIOUS CONVICTIONS

12.The defendant has 6 convictions from 5 previous court appearances.  He was ordered to be detained in a training centre for 2 thefts and a robbery in 2014.  He was recalled to the training centre in 2015 for possession of an offensive weapon in a public place, and then in 2018 for possession of dangerous drugs.  His last conviction was on 29 July 2021 for trafficking in dangerous drugs, for which he was sentenced to 31 months’ imprisonment by a District Judge.  He was last released from prison in around mid-July 2022.

BACKGROUND AND MITIGATION

13.The defendant was born in mainland China in March 1999 and is now 26 years old.  He is single and resides in Wong Tai Sin with his parents and younger sister.  

14.The defendant received education up to Form 2 level in Hong Kong and was unemployed at the time of arrest.

15.According to his antecedent statement, the defendant claimed to have been a cocaine addict, and a triad member.

16.Mr. Mak Kin Ming, counsel for the defendant, pointed out that the defendant, by his own admission, claimed he received instructions from Tin in relation to picking up the shopping bag with the drug and paraphernalia inside.  There are phone call records in support of the defendant’s claim.  Mr. Mak submits that the defendant was acting as a courier and not a direct trafficker when he was intercepted, and as such should be sentenced accordingly.

SENTENCING

17.The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is that of life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

18.The sentencing approach set out by the Court of Appeal in Herry Jane Yusuph[1], as read in conjunction with Lee Ming Ho[2] are applied with the sentencing guidelines in relation to cocaine as updated in the case of Huang Ruifang[3].

Step 1: The applicable guideline tariff bands

19.For the 216g of cocaine, the updated applicable guideline tariff band is “12 to 16 years’ imprisonment”.

Step 2: The defendant’s role and culpability

20.Based on the summary of facts, the defendant’s role in relation to the seized drugs was that of a courier, and as such the tariff bands will be applied on an arithmetical basis first.

Step 3: The relevant band within the guidelines

21.For 216g of cocaine, based on the defendant’s role and culpability, I adopt a starting point of 12 years 3 months’ imprisonment.

Step 4: Aggravating factors

22.This is the defendant’s second conviction for trafficking in dangerous drugs.

23.He was last convicted in 2021, served his sentence and was released in around July 2022, which was about 2 months before he committed another offence, and a similar offence as well.

24.For this aggravating factor, I will enhance his sentence by 9 months, taking the notional sentence point after trial up to 13 years.

Step 5: Mitigating factors

25.There are no mitigating factors apart from the defendant’s timely plea of guilty, for which he is granted a one-third discount, resulting in a sentence of 104 months (8 years 8 months).

Step 6: Totality

26.Taking a step back, I find this sentence fair, just and balanced in the circumstances of the case.

FINAL SENTENCE

27.The defendant is sentenced to 8 years 8 months’ imprisonment after plea.

Ms. Winnie MOK, SPP of Department of Justice, for the Prosecution/ HKSAR

Mr. MAK Kin-ming, instructed by Messrs. K.M. Tang & Co., Solicitors, assigned by D.L.A. for the defendant