HKSAR v. Mio Chiu Hing

HCCC 429/2024

[2025] HKCFI 2986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 429 OF 2024

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty to one charge of trafficking in a dangerous drug before a Magistrate on 12 December last year. It is alleged that on the 8th day of November 2022, at Room 8092 of the Sunny Day Hotel in Mong Kok, he unlawfully trafficked in 204.1 grammes of ketamine narcotic.

According to the Summary of Facts to which he admitted at the time of his plea of guilty, on 8 November 2022 the police raided Room 8092 of the Sunny Day Hotel, and the defendant was the only person present in the room at the time.

Upon search, the police found a total of 387 small resealable transparent plastic bags of ketamine as particularised in the charge. Also a number of equipment was found in the room including multiple unused transparent resealable plastic bags; electronic scales, one in white colour, another one in black colour; plastic bowls; black ladle; one pair of pliers and three mobile phones. The key cards and the rental receipt of the hotel room were seized from the defendant.

Upon his arrest for the offence of trafficking in a dangerous drug, the defendant stated under caution that he was only responsible for watching over the dangerous drugs and sealing them in bags.

In a subsequent video-recorded interview, he stated that:

- On 6 November 2022 he rented the hotel room during which he received a phone call offering him a job opportunity. Later, he left the room with a friend and met an unknown male who passed him a black plastic bag. He and his friend returned to the hotel room with the plastic bag, and then he realised the bag contained ketamine.

- Following the realisation that the bag contained ketamine, he received further instructions from another person regarding the weighing and packing of the ketamine. As a result, he and his friend went to Temple Street to buy a white electronic scale for weighing the drug. He then returned to the hotel to carry out the weighing and packing process.

- However, he was told that the white scale used for the weighing was inaccurate. So, as instructed, he and his friend again went to Temple Street. This time they bought another electronic scale in black colour for weighing and packing the drug. He also bought some transparent resealable plastic bags for packing the drug, and then he returned to the hotel room alone.

- On 7 November, that is the day before he was arrested, he started to weigh and pack the drug into transparent resealable plastic bags in the hotel room under the supervision and the instruction of another person. Subsequently he was told that the packed drug would be collected in the afternoon of 8 November.

- The boss told him that the street value of the drug was HK$70,000, and he was told to pack the drug for a monetary reward of $500.

- He admitted that all the equipment seized in the hotel room was used to weigh and pack the drug.

Subsequent enquiries revealed that the hotel room was registered in his name. Photographs of the dangerous drug and the white electronic scale were retrieved from one of his mobile phones, his iPhone. His fingerprints were found on the white electronic scale and his DNA was also lifted on one of the plastic bags.

The street value of the ketamine seized at the time of the arrest was HK$144,841.

The defendant was 17 years of age at the time of the offence, and now he is 20 years old. He has studied up to Form 4. I was told that he was a part‑time salesperson at the Jumpin Gym USA from early 2021 to early 2022.

He has a previous conviction for the offence of theft for which, on 20 April 2023, he was sentenced to rehabilitation centre for 9 months. About three weeks ago, he was also sentenced by the District Court to the detention centre for the offence of conspiracy to defraud.

I understand from the information before me that on 26 July 2022, he was arrested for a case of theft and was released on police bail. On 8 November 2022, that is the date of the present offence, he was arrested in the hotel room for the drug trafficking case (the present case) as well as the District Court case which was the conspiracy to defraud case.

On 31 January 2023 he was charged with the offence of theft. On 20 April 2023, in respect of the theft offence he was sentenced to the rehabilitation centre for 9 months. He was discharged from the centre on 13 November 2023 and was required to undergo a 1-year supervision.

On 15 April this year, upon his plea of guilty to the offence of conspiracy to defraud, he was sentenced in the District Court to detention in the detention centre. So now he is still serving the detention centre order that was imposed on him about three weeks ago.

And it is obvious from the chronology that when the present offence was committed, he was being released on police bail for the offence of theft.

In mitigation, counsel Mr Pannu drew to my attention the tragic background about his childhood and his family background. I was told that he was 17 years old at the time of the offence. Indeed, it should be 17 years and 11 months. He was almost 18 at the time.

I was told that he was an orphan. His mother was a drug addict. When he was born, his father left her and he was left at Po Leung Kuk until his mother found a partner, and the stepfather passed away in 2010 when he was 6 years old. He was then taken care of by the stepfather’s mum whom he called “Mama” or grandmother. Then he was sent to a foster home for two to three years, and he was under the care and the support of his foster mother. He studied up to Form 4 level but he repeated many times at Form 4.

Counsel informed me that he had a very limited role in the present case. He was only involved in the drug for two days, and he was purely assisting a friend to watch over the drug and to weigh and package it when he was asked to do so for a small payment of $500. Counsel drew to my attention that he was not the mastermind, and he was not involved in the procurement or the sale of the drug.

Counsel said the drug discovery was incidental because at the time he was also involved in the fraud case, the District Court case, and the hotel room was indeed used for the fraud purpose. Counsel said at the material time he was being recruited by others to get involved in a technology phishing conspiracy.

Counsel said that due to his mental disorder of ADHD, he was a vulnerable person susceptible to being used by other people, and it was the same group of people who lured him into drug trafficking.

Counsel said that he had undergone rehabilitation at the rehabilitation centre, and was now doing well in the detention centre. He urged this court, as an exceptional means, to sentence him to a detention centre order so that he can continue with the rehabilitation in this case. Counsel also relied on the Court of Appeal case of SJ v Lau Shing Kit [2012] 5 HKLRD 297 to say that it would be appropriate for this Court to sentence him to the detention centre.

In the case of Lau Shing Kit which was decided by the Court of Appeal in September 2012, the respondent there pleaded guilty to the charge of trafficking in 183.99 grammes of ketamine and Deputy High Court Judge Longley sentenced him to undergo a period of detention in a training centre. The Secretary for Justice applied for a review of that sentence.

That particular respondent was also 17 years of age at the time of the offence, and that offence was also committed while he was on bail for a theft case. In that particular case, he was sentenced to the detention centre for the theft offence. Apparently the Judge, when sentenced him to the training centre, took into account the fact that he had already concluded his sentence in the detention centre.

I consider that the background of that case is distinguishable from the present case for the following reasons. First of all, the quantity of ketamine involved in that case was less than the present case. Secondly, in that case the respondent was sentenced by the Deputy High Court Judge to detention in a training centre which might last for up to 3 years’ detention. It was the assumption of the Deputy Judge at the time that he would be detained in the detention centre for a 3-year period.

In the present case, the defendant was sentenced by the District Court to the detention centre which, according to the Detention Centres Ordinance (Cap. 239), the period of detention is only for a period of between 1 and 6 months, after which he would need to undergo a 1-year supervision which is much shorter than the order of a training centre.

In any event, I am aware of the Court of Appeal’s observation at paragraph 17 of that judgment. It was the view of the Court of Appeal that the sentencing judge was wrong, especially having regard to the serious fact that the offence was committed whilst on bail, and there was nothing attaching to the circumstances of the commission of the offence that was exceptional. The Court also said that it was not appropriate for the judge to assume that the respondent would be kept in the training centre for as long as 3 years.

At paragraph 18 of that judgment, the Court said:

“Whilst we acknowledge a certain discomfort at the notion of sending an offender to prison immediately upon the termination of a period in a detention centre, that discomfort must yield to the nature and gravity of the fresh offence. If the fresh offence is not of such a serious nature as to demand a substantial term of imprisonment, an imaginative sentencing approach of the type upon which the judge embarked is acceptable. If on the other hand the fresh offence is, by reason of its facts or by reason of sentencing policy attaching to its category, such as to require a lengthy term of imprisonment, then a term of imprisonment should be imposed.”

In that case, the Court of Appeal observed that the sentence of imprisonment in the region of 4½ years after plea ought to have been imposed.

I am also aware of the remarks made by the Court at paragraph 22:

“… Part of the messy history hitherto was created by the fact that the respondent was sentenced for the theft offence before he was sentenced for the drugs offence. That ought not to have happened. Had the magistrate who dealt with the theft offences been informed that the respondent was awaiting trial for the much more serious offence of drug trafficking, he would no doubt have adjourned sentence for the theft offences.”

I do echo that remark of the Court of Appeal.

With hindsight, the defendant in this case should have been sentenced for the drug offence well before he was sentenced in the District Court for the conspiracy to defraud.

Be that as it may, it was the case that three weeks ago he was sentenced to the detention centre, and now he is facing the sentence for the drug offence in the High Court.

I have taken into account all the matters urged upon me by defence counsel who had tried his very best to urge this court to impose a detention centre order, or at least to call for a Young Offender Assessment Panel’s report, so that I can consider any sentence other than an immediate custodial sentence.

A total of five mitigation letters were also submitted in mitigation, three of which had already been used in mitigation during his sentence for the conspiracy to defraud case in the District Court. Those letters were prepared, first of all, by his adoptive parents, secondly, by a former class teacher, and by a family friend, by a former classmate and also by a friend. All of them urged this Court to have mercy on him in view of his poor childhood and family background.

However, I must point out that for offences as serious as trafficking in dangerous drug, especially where a substantial quantity of drug is concerned, those family circumstances are of little weight when mitigation is concerned.

On the other hand, since counsel had also submitted the ‘Detention Centre/Training Centre Suitability Report’ (prepared for the District Court case) for my consideration, I have taken into account the information stated in the Report when I considered whether it is worthwhile to adopt an unusual approach for not sentencing him to immediate custodial sentence in this case.

According to the Suitability Report, it was stated that the defendant became an orphan, and he was being adopted by his adoptive grandparents in 2008. He resided with the adoptive family, and also, on and off, he stayed with his godmother at her place of abode. The living condition was considered to be fair.

It was said that he worked as a shop attendant at the Jumpin Gym in Causeway Bay between the period of September 2020 and February 2022. He did not take up any formal employment afterwards.

Regarding his medical history, it was said that he claimed he was assessed to have attention deficit hyperactivity disorder (ADHD) and dyslexia in his lower primaries, but he defaulted the follow-up treatment since 2017. Indeed, he defaulted all the follow-up treatment on his special needs since September 2017.

According to the Report, he took part in drug peddling activities twice in October 2022 and November 2022, and he tasted ketamine once in early November 2022. And he joined the Sun Yee On (Tsim Sha Tsui) triad society in February 2022.

Later, on 26 July that year, he was arrested for the offence of theft and released on bail. During the bail period, he began to participate in drug peddling activities in October 2022 and tasted ketamine once in early November 2022. Eventually he was arrested for the trafficking in dangerous drug and the conspiracy to defraud offences respectively on 8 November that year.

Later, on 20 April 2023 he was sentenced to the rehabilitation centre for the theft case in Eastern Magistracy. He was discharged from the rehabilitation centre on 13 November 2023, subject to a 1-year statutory supervision. It was stated that his overall performance while remanding in custody was unsatisfactory for which he was twice awarded disciplinary punishment for disobeying the staff’s instructions and possessing an unauthorised book in July 2024. His statutory supervision under the Rehabilitation Centres Ordinance expired in November 2024.

So, in conclusion, the reporting officer said that he was an orphan adopted by his adoptive grandparents at the age of 4, and after entering to secondary school he failed to catch up with the study. While he was studying Form 3 he joined triad society in February 2022. In July 2022 he was arrested for the offence of theft. During the bail period, he even started participating in drug peddling activities and tasted ketamine.

Then he was arrested for the drug offence and the fraud offence in November, and sentenced to the rehabilitation centre for the offence of theft in 2023. Upon the completion of his disciplinary training, he was discharged from the rehabilitation centre in November 2023 and underwent a 1-year statutory supervision. While remanding in custody, he failed to comply with the centre rules.

That is the content of the Report.

It is well established in many cases that if the offence involves trafficking of dangerous drugs on a serious scale, then a detention centre order is wrong in principle. I bear in mind the fact that this is a case involving a serious offence, and the gravity of the offence was revealed by the quantity of the ketamine involved.

I also bear in mind the fact that he cannot be said to be a person of extreme youth at the time when he committed the present offence. He was almost 18 years old, and he was not even a person of clear record. At that time he was being released on police bail for a case of theft, and at the same time when he committed the said drug trafficking offence, he was also committing a case of fraud together with other people.

Bearing in mind the sentencing principle, all the cases and the information before me, I consider that a detention centre order or a training centre order would be wrong in principle in this case, and there is nothing to warrant any departure from the normal guidelines.

In this particular case, in sentencing the defendant I do bear in mind the approach as stated by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as clarified by the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.

This case involves a total of 204.1 grammes of ketamine narcotic. According to the guidelines, on a pure arithmetic calculation the starting point for 204.1 grammes of ketamine narcotic should be 7 years and 10 months’ imprisonment. However, I should consider the notional starting point after having taken into account the role and culpability of the defendant.

According to the Summary of Facts, the defendant was involved in the buying of one electronic scale and the packaging of the drug on 6 November, that is two days before he was arrested. When he was informed that the electronic scale was not accurate, he went out to buy a second electronic scale and again he used that electronic scale to weigh and package the drug under the instruction of the boss.

So, in this particular case he was not only a storekeeper. He was also involved in the weighing and packaging of the drug for a period of two days before he was arrested. His role was not merely one of a storekeeper. Of course, I do take into account the fact that he was not a courier on the information before me.

Having considered his role and culpability in this case, especially the fact that he was involved in the weighing and the packaging of the drug for two days in a hotel room which was rented in his name, I consider that the notional starting point after trial should be 8 years’ imprisonment.

The defendant committed the present offence when he was being released on police bail for the theft case. As such I consider that the starting point should be enhanced by a total of 3 months. That would raise the starting point to 8 years and 3 months’ imprisonment.

Other than his early plea of guilty, I do not see any valid mitigation factor that would entitle him to any further discount. So, after the one-third discount for his plea of guilty, the ultimate sentence is 5½ years’ imprisonment.

I do bear in mind about the unusual or tragic background of his childhood, but I must emphasise that the same background or the same information should not be used again and again to pray for leniency in one case after another. In any event, in this case I am prepared to give him a further discount of 3 months as a matter of mercy for the information before me, even though I realised that the same information had already been used in the mitigation of other cases.

So, the ultimate sentence that he is sentenced to is 5 years and 3 months’ imprisonment.