HKSAR v. Hui Sik Ming, Ian

HCCC 285/2024

[2025] HKCFI 1915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 285 OF 2024

________________________

________________________

_________________________________

REASONS FOR SENTENCE

_________________________________

The Charge

1.On 2 September 2024, the defendant pleaded guilty in the magistracy to three counts of trafficking in a dangerous drug or dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134.  The 1^st count involved 35 grammes of a solid containing 30.1 grammes of cocaine.  The 2^nd count involved 6,182 grammes of a solid containing 5,177 grammes of ketamine and 782 grammes of a solid containing 671.4 grammes of cocaine.  The 3^rd count involved 46.9 grammes of a solid containing 41.6 grammes of cocaine.  On the same day, the defendant admitted a Summary of Facts dated 31 July 2024 and he was committed to the Court of First Instance for sentencing.  There was a 4^th count of conspiracy to traffic in dangerous drugs which was left on court file.  Today, before this Court, the defendant confirmed his guilty pleas to the three trafficking counts and his admission of the Summary of Facts.

Facts Admitted

2.The facts of the case can be summarized as follows. 

3.On 23 June 2023, police officers observed a private car (“V1”)  entering a carpark in Tin Shui Wai and it went up to the 7^th Floor and was parked there.  The defendant alighted from the driver’s seat of V1 and walked towards another private car (“V2”)  which was also parked on the same floor.  The defendant was then seen moving some items from V1 to V2’s trunk.

4.Police officers then intercepted the defendant and upon search, found the subject dangerous drug as per the 1^st count from the defendant’s left jacket pocket and the left pocket of the defendant’s shorts. 

5.Upon arrest and under verbal caution, the defendant admitted that those were dangerous drugs and his role was a driver. 

6.Police officers then searched V2 and found the subject dangerous drugs contained in 85 resealable bags as per the 2^nd count in different parts of the vehicle, together with four boxes of empty resealable bags, four electronic scales, a heat sealer and other items.

7.Under further verbal caution, the defendant admitted that he knew the car contained dangerous drugs and he was only the driver.

8.Police officers also searched V1 and found in the trunk of the car two small resealable bags containing the subject dangerous drug as per the 3^rd count.  Inside V1, the police also found, amongst other items, a sling bag containing $91,200 cash and a large quantity of empty resealable bags.

9.In a subsequent video-recorded interview, the defendant admitted under caution that:-

(1)  He was unemployed and he met his ex-colleague “Ah Lung” several months ago. “Ah Lung” asked him to traffic in dangerous drugs and instructed him to deliver the drugs to certain locations;

(2)  On 23 June 2023, “Ah Lung” had instructed him to pick up the goods in Lau Fau Shan and deliver them to Tin Shui Wai;

(3)  When he arrived in Lau Fau Shan in V1, someone gave him a box which he knew contained dangerous drugs;

(4)  Then he drove to the carpark in Tin Shui Wai where he was told to find V2, place the box inside V2 and leave after that; and

(5)  He would receive $400 for delivering each bag of ketamine and $450 for each bag of cocaine as rewards. He had made $20,000 for the past 2 weeks and he had placed that cash in his sling bag. The remaining $70,000 cash was money from the customer that he needed to pass on to his accomplice.

10.A total of 743.1 grammes of cocaine and 5,177 grammes of ketamine were found and seized in the present case.  The estimated street value of the cocaine seized was $677,298 (in powder form)  or $990,893 (as crack cocaine)  and that of the ketamine seized was $3,437,192.

Background and Mitigation

11.The defendant was 38 years old at the time of the offences and he is now 40 years old.  He was born in Hong Kong, he has received up to Form 5 education and is divorced with two sons aged 15 and 11 respectively.  He was unemployed at the time of his arrest. He has three previous convictions which arose out of the same incident and were all driving-related and dealt with in the magistracy in 2023. 

12.Through his counsel, the defendant has submitted four letters to the Court in mitigation.  Two of them were written by the defendant himself, expressing his full remorse for the offences and for failing his filial duty to his parents and his parental duty to his sons.  Another letter was written by the defendant’s mother, pleading for leniency.  The last letter was written by a course co-ordinator who spoke well of the defendant and of his willingness to take up Christian courses whilst in custody.  A number of course certificates were also produced to the Court to demonstrate the defendant’s determination to rehabilitate himself.

13.As to the sentence, Mr. Mak Kin Ming, counsel for the defendant, submitted that the Court should use the conversion test in sentencing the offences involving two types of dangerous drugs.  He submitted that the role of the defendant was just a courier.  He accepted that other than the guilty pleas, the defendant has no strong mitigating factor.  As this is the defendant’s first conviction in relation to dangerous drugs, he asked for lenient sentences to be imposed on the defendant.  Mr. Mak also submitted that given the involvement of two types of drugs in the offences, an enhancement of no more than 6 months should be applied in the present case.

Sentence

14.In sentencing the defendant, I will follow the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

15.The first step is to identify the relevant guideline band applicable to the quantity or quantities of the dangerous drugs in question.  In the present case, there are two types of drugs being involved, namely cocaine and ketamine, with ketamine being of the larger quantity.  When more than one type of dangerous drugs are involved in a trafficking offence, the court will adopt a combined approach in sentencing.  As explained in HKSAR v Chan Yuk Leong, CACC 318/2013, there are three means of cross-checking whether a sentence is manifestly inadequate, namely, the absurdity test, the conversion test and the ratio test. 

16.In the circumstances of this case, I find the conversion test to be the more appropriate and fair basis to take as the combined approach to sentencing in the present case.

17.Among the two types of dangerous drugs involved, the quantity of ketamine is larger.  The Court may adopt it as the dangerous drug for determination of the starting point, which should then be adjusted upwards by reason of the other type of dangerous drugs seized, namely cocaine.

18.The quantity of ketamine in the present case is 5,177 grammes.  If more than 3,000 grammes of ketamine is involved, the starting point can exceed 20 years, in the discretion of the court: see HKSAR v Sin Chung Kin (2013)  1 HKLRD 622 at §28.  The Court takes the view that just for the subject quantity of ketamine seized in the present case, a starting point 22 years’ imprisonment is warranted: which was the starting point used in HKSAR v Ronnie Gan Ban Lee in HCCC 288/2020, [2021] HKCFI 2708 for 5,060 grammes of ketamine.

19.Turning to the subject quantity of cocaine seized in the present case, namely a total of 743.1 grammes of cocaine.  That in itself warrants a starting point of 16.97 years’ imprisonment: see HKSAR v Huang Ruifang [2025] HKCA 234. 

20.In terms of sentencing, that quantity of cocaine is equivalent to about 1,743 grammes of ketamine.

21.In light of this conversion, the total quantity of ketamine in the present case becomes 6,920 grammes.  For trafficking in 6,920 grammes of ketamine, a notional starting point of 22 years and 9 months’ imprisonment is considered by this Court to be appropriate.

22.On the other hand, if one is to convert a sentence warranting 22 years’ imprisonment to a quantity of cocaine, that will lead to a quantity of 3,250 grammes of cocaine.  In light of this conversion, the total quantity of cocaine in the present case becomes 3,993.1 grammes of cocaine.  With that quantity of cocaine, the notional starting point works out to be around 22 years and 10 months.

23.In the present case, I shall adopt a notional starting point of 22 years and 9 months’ imprisonment to cover all the quantities of ketamine and cocaine seized in the present case.

24.The second step is to assess the role and culpability of the defendant based upon the Summary of Facts before the court, according to which the defendant admitted collecting the dangerous drugs and delivering them to locations designated by his accomplice for rewards. 

25.The third step is to decide where within the relevant guideline band the defendant should come.  In my assessment, the defendant’s role is that of a courier although he might have taken part in keeping some of the proceeds of trafficking. 

26.The fourth step is to deal with aggravating factors, if any.  The defendant’s three previous convictions are unrelated to dangerous drugs and I shall disregard them.  However, it is an aggravating factor for an accused to traffic in more than one kind of dangerous drugs “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.” (See HKSAR v Yim Hung Lui Ricky, CACC 266/2011, and HKSAR v Islam Azharul [2020] 1 HKLRD 644).  For this reason, I will enhance the starting point by 3 months, raising it to 23 years.

27.The fifth step is to take into account the mitigating factors, if any.  As accepted by Mr. Mak, the only mitigating factor in the defendant’s case is his guilty pleas which were entered at the earliest opportunity.  Because of that, he is entitled to a full one-third discount.  That brings the total sentence down from 23 years to 15 years and 4 months’imprisonment. 

28.For the 1^st count, I would impose a sentence of 4 years and 4 months’ imprisonment, that is reduced from a starting point of 6 years and 6 months.  For the 2^nd count, I would impose a sentence of 14 years and 8 months’ imprisonment, that is reduced from a starting point of 22 years.  I would order 10 years of the sentence of the 2^nd count to be served consecutively to the sentence of the 1^st count.  For the 3^rd count, I would impose a sentence of 5 years’ imprisonment, that is reduced from a starting point of 7 years and 6 months.  I would order 12 months of the sentence of the 3^rd count to be served consecutively to the sentences of the 1^st and 2^nd counts.  The total sentence to be served is therefore 15 years and 4 months’imprisonment.   

29.Lastly, I consider these sentences fair, just and balanced in all the circumstances of the offences and the defendant.  Accordingly, the defendant is sentenced to imprisonment for 15 years and 4 months.

Exhibits

30.Order in terms of the Prosecution’s application, not objected to by the Defence, was granted.

Miss Lo Sum Yee, Rosa, SPP of the Department of Justice, for the Prosecution

Mr Mak Kin Ming, instructed by Robertsons, assigned by DLA for the Defendant