HKSAR v. Fung Kin Pan and Another

HCCC 34/2025

[2025] HKCFI 1711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 34 OF 2025

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REASONS FOR SENTENCE

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1.The defendants pleaded guilty to 1 count of trafficking in a dangerous drug[1] before Magistrate Mr. Jeffrey Sze and were committed, on 3^rd February 2025, to the Court of First Instance for sentence. They each confirmed their plea and admission to the Summary of Facts before me, and their convictions were duly recorded.

2.Particulars of the charge are that the defendants, on 15^th November, 2022, at Room 420, 4^th Floor, Mansfield Industrial Centre, No. 19 Hong Yip Street, Yuen Long, New Territories, unlawfully trafficked in a dangerous drug, namely 165 grammes of a solid containing 148 grammes of cocaine.

FACTS

3.D1 was intercepted by police officers on anti-narcotics operation at around 5:40pm on the charge date leaving Room 420 at the charge address.  He struggled and had to be handcuffed after being subdued on to the ground.  

4.Upon search, 7 resealable plastic bags containing a total of 165 grammes of a solid containing 148 grammes of cocaine were found inside Dl’s sling bag.  He was arrested for trafficking in dangerous drugs, and claimed under caution that it was D2 who had just given him the drugs in the sling bag at Room 420.  He was to deliver them and D2 would pay him $450 for each delivery.  

5.Police officers found the metal gate and door of Room 420 were unlocked, and they escorted D1 into the room at 7:51pm.  

6.They found D2 in the room and arrested him for trafficking in dangerous drugs, and seized the following items:

(a)  From the safe inside the storeroom - rental documents for the room, including the tenancy agreement with D2 listed as the tenant;

(b)  From the top drawer of a cabinet inside the storeroom - 2 electronic scales, a packet of small resealable plastic bags, a packet of larger resealable plastic bags, an orange recycle bag, a plastic spoon, a plastic basin, a pair of scissors and a blue marker pen;

(c)  From the floor of the storeroom - 2 cigarette butts, the filter ends of which were later found to contain Dl’s DNA; and

(d)  From the living room - an iPhone and a Nokia mobile phone belonging to D2.

7.Subsequent investigation revealed that DNA material lifted from the packaging of the cocaine likely originated from D1 and D2, and that D2 had rented the room for the period between 15^th August 2022 and 14^th August 2024 at HK$10,800 per month.

8.D1’s mobile phone contained WhatsApp communications between himself and D2 on 14^th and 15^th November 2022, with D2 sending phone numbers of customers to D1, and informing D1 the quantity of drugs to be delivered.

9.In his video recorded interview, D1 claimed that he had contacted D2 at around 2am on the charge date, asking if D2 had any way for him to make some money.  D2 asked D1 to help deliver drugs to others.  D2 then sent the phone numbers of the customers to him via WhatsApp and D1 called them to arrange for delivery.  He would receive $450 for every packet of cocaine delivered.  He had not received any reward yet.  He knew that the drugs found on him were cocaine, and the numbers written on the packets were the weight.  D1 had gone to Room 420 at 7pm that day and took the 7 packets from the safe inside the storeroom and put them into his sling bag.  It was D2 who told him the passcode to the safe when they met 2 days ago.

10.As for D2, he claimed in his video recorded interview that he had been renting Room 420 since mid-September 2022.  He lived there alone but his girlfriend would occasionally stay over.  D2 had known D1 for over 20 years.  On the day of the arrest, D1 had arrived at the room at around 7 to 8pm and was there for about 30 minutes.

11.The total estimated street value of the cocaine seized was around HK$242,385.

12.By their admission to the Summary of Facts, the defendants had each accepted that, at all material times, they were in unlawful possession of the seized dangerous drugs for the purpose of trafficking.

PREVIOUS CONVICTION

13.D1 has two previous convictions for possession of dangerous drugs.  The first one was in October 2016 when he was 28, for which he was given a 2 month sentence suspended for 18 months.  His next and latest conviction was in September 2017, when he was sentenced to 15 days’ imprisonment, and the previous suspended sentence was ordered to be activated in full and served consecutively.

14.D2 has 5 convictions from 4 court appearances.  He was first sentenced to 12 months’ Probation for possession of prohibited weapons in 2001, when he was 16 years old.  He was next ordered to be detained at a Rehabilitation Centre in 2004 for Acting as and Being a member of a triad society.  He was put on 18 months’ probation in 2008 for possession of dangerous drugs.  His last conviction was also for possession of dangerous drugs, when he was sentenced to 2 weeks’ imprisonment in March 2010.  He was discharged from prison on the same day, having served the sentence by that time.  

D1’S BACKGROUND AND MITIGATION

15.D1 was born in Hong Kong in 1988 and has recently turned 37.  He is single and lives alone.  He was working as a decoration worker earning about $5,000 per month at the time of arrest.  He has a younger sister who is 35.  The defendant’s 57 year old mother was diagnosed with breast cancer and was undergoing treatment at the time of the offence.  Both his sister and mother had visited D1 and shown their support.  Both of them had written in mitigation.  D1’s mother blames herself for not being a better mother to D1, and his younger sister blames herself for influencing her brother into taking drugs.  She has since been able to stay away from drugs for the past 13 years with the help of her religious beliefs.  They seek leniency on behalf of their loved one.  

16.Mr. Stephen Fong, counsel for D1, informed the court that D1 has been a user of ketamine for a long time.  He did, however, abstain from taking any dangerous drugs after his release from prison in October 2017.  

17.D1 had known D2 when D1 was still a drug addict back in 2016.  D1 knew that D2 was in the decoration business.  So when D1 contacted D2 on the charge date, he was actually looking for legitimate decoration related work.  Yet, since D2 knew about D1’s drug history, D2 offered D1 the chance to make money by delivering drugs.  D1 saw that it was quick money, probably earning some $3,150 for an hour’s work, and greed took over.  

18.Mr. Fong submits that D1 was a simple courier, and that he had not taken part in the direct trafficking of the drugs.  It was D2 who completed the deals and then instructed D1 to make the deliveries.  Mr. Fong also submits that D1 had made a full confession one day after his arrest, implicating D2 in the process.  D1 had also made a non-prejudicial statement against D2 on 19^th April 2023, being one year prior to the committal proceedings had commenced.

19.Mr. Fong points out that it was D1’s assistance to the police that had led to the arrest of D2. Mr. Fong confirms that D1 was ready, able and willing to give evidence on behalf of the prosecution against D2, and suggested that D1’s cooperation and assistance must have contributed to D2’s decision to plead guilty.

20.On this basis, Mr. Fong relies on the cases of HKSAR v Tse Yiu Ming CACC 336/2006 and HKSAR v Ho Wing-cheung CACC 264/2015 to suggest that a discount after plea in the region of 40-45% is appropriate.

D2’S BACKGROUND AND MITIGATION

21.D2 was born in Hong Kong in 1984 and is 40 years old.  He was educated up to Form 5 level.  He is single and lives with his girlfriend in Room 420.  He was working as an interior designer in the construction business earning $25,000 to $30,000 per month.  

22.D2 was the sole breadwinner of his family that consists of his parents and a younger brother.  His father could not work for health reasons and his mother had to quit her job to look after him at home.  The younger brother had gotten married and had since left home.  D2 was contributing $7,000 every month to support his parents.  

23.D2 rented Room 420 for his interior design business.  According to Mr. Wong Ting Kwong, counsel for D2, it was not the defendant’s intention to use the room as a storage place for drugs, he just kept the drugs there ‘incidentally’.  As a result of unsatisfactory business performance and the need to support his family, D2 had taken on significant debts, which led to his involvement in cocaine trafficking.

24.Mr. Wong fairly pointed out that the court ‘may perceive D2 as having played a role beyond that of a mere courier’, given that he was the person who rented the room and liaised with the buyers of the drugs, and some enhancement in his sentence on the basis of playing a more important role in the trafficking is expected.

25.Mr. Wong also fairly accepted that D2’s role in recruiting D1 as the foot soldier in the trafficking would also be a matter that would cause his sentence to be further enhanced.

SENTENCING

26.The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

27.The 6-step sentencing approach introduced by the Court of Appeal in HKSAR v Herry Jane Yusuph[2], as read in conjunction with HKSAR v Lee Ming Ho[3], are applied as follows.

Step 1: The applicable guideline tariff band

28.The sentencing guidelines as updated in the case of HKSAR v Huang Ruifang [2025] HKCA 234 for cocaine are applied.

29.For 148g of cocaine, the applicable band is “8 to 12 years”.

Step 2: The defendants’ role and culpability

30.In relation to D1, according to the Summary of Facts, which form the basis of his conviction, there is no suggestion that D1 had taken part in the packaging of the drugs in the Room.  Although his DNA material was found on the packaging of the cocaine, the facts are silent as to on how many packets and which parts of the packet.  One reasonable inference would be that he had been in contact with the packets when he moved them after they had been packaged.  It is, therefore, not the only reasonable inference that he had taken part in the packaging of the drugs.  He will be sentenced on the factual basis most advantageous to him, which suggests that he was a mere courier who might not have taken part in the direct trafficking and packaging of the drugs.  He merely followed instructions from D2 and made the deliveries. 

31.In relation to D2, he was the person who rented the room where the packaging of the drugs was done and where the drugs were stored.  I find that it is the only reasonable inference that he had recruited D1 as a courier and promised him a reward.  He made the deal with the buyers of drugs and told D1 where, when and how much to deliver.  He was the person who played a more important role in the trafficking and is the more culpable.  Mr. Wong did not raise any objection on the sentence being based on this factual basis.

Step 3: The relevant band within the guidelines

32.The arithmetical application of the tariffs for 148g of cocaine would lead to a notional starting point of 10 years 7 months’ imprisonment.

33.Based on my finding of D1’s role as a courier, I adopt a starting point of 10 years 7 months against him.

34.Based on my finding of D2’s role as a storekeeper who had taken part in the direct trafficking of the drugs, I would enhance the sentence based on the arithmetical starting point by 9 months, and for his role in recruiting and paying D1 as a courier, I would enhance it by another 8 months, leading to the starting point of 12 years’ imprisonment, which I adopt.

Step 4: Aggravating factors

35.Although both the defendants have previous convictions, neither of them had been convicted of a similar offence before.  Given the lapse of time between this and their previous convictions, I will not enhance their sentence on this basis.  There are no other aggravating factors that would warrant an enhancement.  

Step 5: Mitigating factors

36.In relation to D2, there are no mitigating factors other than his timely guilty plea, for which he will be granted the usual one-third discount.  

37.In relation to D1, he had made a non-prejudicial statement against D2 as mentioned above, and I have been told that he had always been ready to testify against D2 at trial if asked.  I think it can be safely assumed that D1’s willingness to come forward against D2 must have played some part in D2’s decision to plead guilty to the charge.  

38.As Li CJ stated in the Court of Final Appeal case of Z v HKSAR [2007] 2 HKC:

“…Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.”

39.In recognition of D1’s assistance to the authorities, I will grant him a discount of around 45%, inclusive of the one-third discount after plea.

Step 6: Totality

40.I have looked at the sentences and am of the view that they are fair, just and balanced in the circumstances of the offence and the defendants.

FINAL SENTENCE

41.D1 is sentenced to 5 years 10 months’ imprisonment after granting him the said discount after plea.

42.D2 is sentenced to 8 years’ imprisonment after plea.

Ms. Angel YUEN, SPP of Department of Justice, for the Prosecution/ HKSAR

Mr. Stephen FONG, instructed by Messrs. C&Y Lawyers, assigned by D.L.A. for the 1^st defendant (D1)

Mr. Peter TK WONG, instructed by Messrs. Wong & Co., assigned by D.L.A. for the 2^nd defendant (D2)