HKSAR v. Choy Wan Chun

DCCC 1068/2024

[2025] HKDC 1170

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1068 OF 2024

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REASONS FOR SENTENCE

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1.Mr Choy pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 19 February 2024, near Lamppost No VD6516, Yau Tam Mei Tsuen, Lok Ma Chau, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 8.53 grammes of a solid containing 7.15 grammes of ketamine, and 2.8 grammes of a solid containing 1.83 grammes of cocaine.

Facts admitted by Mr Choy

2.On 19 February 2024, at about 2325 hours, Mr Choy was driving a private car YV553 with no other passenger on board on an unnamed road in Yau Tam Mei Tsuen, Lok Ma Chau.  He pulled over near Lamppost VD6516.  All warehouses nearby were closed.  Mr Choy was looking around suspiciously.  Patrolling police party was alerted and intercepted him and instructed him to alight for a search.

3.Upon body search, police found in Mr Choy’s left front trouser pocket a transparent resealable plastic bag (E1) containing 21 transparent resealable plastic bags containing a total of 8.53 grammes of a solid containing 7.15 grammes of ketamine (E2).

4.Under caution, Mr Choy said that they were “K jai” (ie ketamine).

5.Police searched the car in the presence of Mr Choy.  Two “Marlboro” cigarette boxes (E3 and E5) were found inside the cup holder near the central panel.

6.Inside E3, the police found 10 cigarettes (each with a twisted end) containing a total of 1.46 grammes of a solid containing 0.96 gramme of cocaine (E4).

7.Inside E5, the police found 10 other cigarettes (each with a twisted end) containing a total of 1.34 grammes of a solid containing 0.87 gramme of cocaine (E6).

8.Under caution, Mr Choy said E4 and E6 were cocaine cigarettes.

9.Mr Choy was arrested for “Trafficking in dangerous drugs”.  At time of arrest, Mr Choy had with him two mobile phones and cash of $12,366.

10.In a subsequent cautioned VRI, Mr Choy averred that:-

(a) He borrowed the subject car from his old acquaintance a week ago in Yuen Long for Lunar New Year use;

(b) He was looking for a toilet at the material time; and

(c) The cash found on him was his laisee money.

11.The estimated retail value of E2 was about $3,719.  The estimated retail price of E4 and E6 was about $2,780 (powder) or about $3,816 (crack).

12.Mr Choy lived in a flat about 7 km away from where he was arrested.

Criminal record

13.Mr Choy has 5 previous convictions two of which were for trafficking in dangerous drug with the remainder all for possession of dangerous drug.

Antecedents

14.Mr Choy is aged 34 (33 at the time of the offence), educated to F3 level, was a cleaning worker at the time of arrest.  He was last discharged from prison for a High Court trafficking case on 20 June 2022.  Mr Choy was living on his own in private housing in Yuen Long.

Mitigation

15.Ms Adgie Chan of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Choy.  The following is a summary of the mitigation submissions.

16.Mr Choy is single.  Prior to being placed on remand, he was employed as a cleaning worker with a monthly income of approximately $25,000.  Mr Choy’s parents are in their 50’s.  Mr Choy has two brothers aged 36 and 22.  Mr Choy however has not been in contact with his family members for several years.

17.At the time of the present offence, Mr Choy was under financial pressure because he was in debt.  In desperation to repay his debt, Mr Choy unwisely agreed to deliver dangerous drugs in exchange for a reward of $1,000.  It is worth noting that Mr Choy was merely a courier and had not received any monetary reward before arrest.

18.Since his last release from prison, Mr Choy has made efforts to re-establish a stable life.  He obtained employment as a cleaning worker and in his spare time distributed free meals to those in need as a volunteer.

19.Mr Choy pleads for leniency.

20.The tariff for trafficking in 1-10 grammes of ketamine is 2 to 4 years’ imprisonment: Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, at para 95.  The arithmetical starting point for 7.15 grammes of ketamine is therefore 40.4 months’ imprisonment.

21.The tariff for trafficking in up to 10 grammes of cocaine is 2 to 5 years’ imprisonment: HKSAR v Huang Ruifang [2025] 2 HKLRD 138 at para 62.  The arithmetical starting point for 1.83 grammes of cocaine is therefore 30.6 months’ imprisonment.

22.For trafficking in more than one type of dangerous drug, the Court of Appeal laid down two sentencing approaches in HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, namely the Individual approach and the Combined approach.  As a rule of practice, where the sentencing brackets for the two types of dangerous drugs are not dissimilar, it is appropriate to adopt the combined approach: Ko Ka Hing at para 3(d).

23.It was submitted that in this case the combined approach rather than the individual approach would be more appropriate in arriving at a realistic and fair sentence.

24.HKSAR v Chan Yuk Leong, CACC 318/2013, has established 3 tests to cross-check if the overall sentence is manifestly excessive.

25.Ms Chan obtained the following results from the three tests:-

(a) Absurdity test: 8.98 grammes of cocaine resulting in 56.3 months as starting point;

(b) Conversion test: 10.625 grammes of ketamine resulting in 48.375 months as starting point; 6.39 grammes of cocaine resulting in 47 months as starting point; and

(c) Ratio test: ratio of cocaine in the total amount x 56.3 months + ratio of ketamine in the total amount x 45.3 months = 47.5 months as starting point.

26.Trafficking in two (or more) types of serious drug at the same time is an aggravating factor: HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 at para 27(4).

27.Ms Chan then relied on two non-binding sentencing cases, namely HKSAR v Fong Yik Ching [2023] HKCFI 3331 and HKSAR v Lin Tsz Fung (transliteration) [2024] HKDC 2091 (in Chinese), to say that the enhancement for trafficking in multiple dangerous drugs could be one to two months.

28.Ms Chan acknowledged that Mr Choy has previous convictions which are all drug-related two of which were even for trafficking; that Mr Choy was released from prison in June 2022 and committed the present offence only 1 year and 8 months afterwards.  Ms Chan relied on HKSAR v Chan Pui Chi, CACC 706/1997, to say that previous offence of the same or a similar kind would be an aggravating factor in considering sentence.

29.In HKSAR v Har Tsz Yui [2019] HKCA 1336, the Court of Appeal reduced an enhancement for a repeated offender from 7 months to 4 months.  In Fong Yik Ching (supra), the sentencing court enhanced a repeated offender’s sentence for 4 months only.

30.Ms Chan submits that in the present case, an enhancement of no more than 4 months for Mr Choy on the same ground would be appropriate.

31.Ms Chan invites the court to adopt an initial starting point of 47 months.  Ms Chan submitted that an enhancement of no more than 6 months would be appropriate for the two aggravating factors.

32.Mr Choy pleaded guilty at the earliest opportunity and shall be entitled to the full one-third sentencing discount.  Mr Choy asked for leniency from the court.

33.Ms Chan submitted on behalf of Mr Choy a total of 3 mitigation letters written in Chinese respectively by Mr Choy himself, his last employer, and his good friend.  The contents are generally that Mr Choy committed the offence in order that he might pay off a previous loan as fast as possible; that he is now very regretful and will reflect upon his past deeds while in prison; that he will learn new skills for use after release; he will then work hard to pay off his loan; that Mr Choy worked with a serious and responsible attitude; that he would regularly perform voluntary work in his spare time; that the last employer would re-employ Mr Choy on the latter’s release; that Mr Choy was a helpful and kind person.  The letter writers all asked for a chance be given to Mr Choy.  The court was urged to pass a lenient sentence on Mr Choy.

Sentence

34.I will adopt the combined approach of sentencing.

35.I will abide by the six-step sentencing approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

36.My own calculations based on the three cross-checking tests bear similar results to those worked out by Ms Chan.  I am happy to adopt her figures.

37.I need first to ascertain the role of Mr Choy on the night of arrest. There is little evidence that he was otherwise than a courier in his trafficking activity.  I shall regard him as such.

38.In the premises, I will as invited adopt 47 months as the initial starting point in the case of Mr Choy.  Because of the two factors identified by Ms Chan as justifying enhancement, I will increase the starting point by 5 months to reach a final starting point (ie the notional sentence after trial) of 52 months’ imprisonment.

39.Mr Choy pleaded guilty in good time and therefore is entitled to the full 1/3 sentencing discount.  I cannot discern from the mitigation any other grounds for reducing sentence.

40.Before leaving the matter, I take a step back to see if the sentence thus resulting is fair, just and balanced having regard to the overall circumstances of the offence and the offender.  This is a case in which Mr Choy, a repeated offender, made use of a car to traffic in multiple doses of two types of dangerous drug.  I am of the considered view that the resulting sentence is not one day too long.

(Mr Choy, please stand)

41.The sentence is 34 months and 20 days’ imprisonment.