HKSAR v. Lee Chung Man, Nelson and Another

HCCC 338/2024

[2025] HKCFI 3401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 338 OF 2024

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REASONS FOR SENTENCE

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1.The 1^st and 2^nd defendants pleaded guilty to the following charges, and admitted the Summary of Facts, in the committed proceedings at the Eastern Magistracy on 17 October 2024.

2.The statement of offence and particulars of offence of the charges stated as follows:

(1)  Charge 1 (against the 1^st defendant), trafficking in a dangerous drug: On 2 April 2021, at Upper Ground Floor, Harry Industrial Building, Nos. 49 to 51 Au Pui Wan Street, Fo Tan, Sha Tin, New Territories, in Hong Kong, the 1^st defendant together with other person or persons unknown, unlawfully trafficked in a dangerous drug, namely 150.34 kilogrammes of a solid containing 129.35 kilogrammes of cocaine.

(2)  Charge 2 (against the 1^st defendant), trafficking in a dangerous drug: On 2 April 2021, at Room 401, 4^th floor, Harry Industrial Building, Nos. 49 to 51 Au Pui Wan Street, Fo Tan, Sha Tin, New Territories, in Hong Kong, the 1^st defendant together with other person or persons unknown, unlawfully trafficked in a dangerous drug, namely 449.57036 kilogrammes of a solid containing 372.70617 kilogrammes of cocaine.

(3)  Charge 3 (against the 2^nd defendant), trafficking in a dangerous drug: On 3 April 2021, at Flat G, 3^rd floor, Savoy Garden, Shatinpark Stage 3, Nos. 13 to 15 Kong Pui Street, Sha Tin, New Territories, in Hong Kong, together with other person or persons unknown, the 2^nd defendant unlawfully trafficked in a dangerous drug, namely 42.190 kilogrammes of a solid containing 35.478 kilogrammes of cocaine.

(4)  Charge 4 (against the 1^st defendant), conspiracy to traffic in a dangerous drug: Between 1 October 2020 and 2 April 2021, both dates inclusive, in Hong Kong, the 1^st defendant conspired together with a person known as “Marcus”, a person known as “Sifu”, and other person or persons unknown to unlawfully traffic in a dangerous drug.

(5)  Charge 5 (against the 2^nd defendant), conspiracy to traffic in a dangerous drug: Between 28 March 2021 and 3 April 2021, both dates inclusive, in Hong Kong, the 2^nd defendant conspired together with a person known as “CJ” and other person or persons unknown to unlawfully traffic in a dangerous drug.

3.The case was then committed to the Court of First Instance for sentence.  Before this court, both the 1^st defendant and the 2^nd defendant have confirmed their plea and the agreement to the Summary of Facts through counsel. 

4.The Summary of Facts admitted by the defendants provide as follows.

Arrest of D1 at Harry Industrial Building

5.On 2 April 2021, a team of police officers (including DPC8402(PW1), DSPC58327(PW2)  and DPC13603(PW3))  mounted an anti-narcotics operation against the premises at Room 401, 4^th floor, Harry Industrial Building, 49 to 51 Au Pui Wan Street, Fo Tan (“Room 401”).  At all material times, the 1^st defendant was the sole tenant of Room 401. 

6.At about 11.07 hours on the same day, PW1, who was monitoring the CCTV system of Harry Industrial Building (“the Building”), saw the 1^st defendant entering Room 401.  Later, at about 1354 hours on the same day, PW1 saw from the CCTV that the 1^st defendant was leaving Room 401 and pushing a trolley loaded with five carton boxes towards the lift lobby.  The 1^st defendant then took a lift to go downstairs.  PW1 immediately informed the other police officers of his observation. 

7.At about 1356 hours on the same day, when the 1^st defendant reached the upper ground floor of the Building, he was intercepted by PW2.  Upon body search, the 1^st defendant was found in possession of three mobile phones and a bunch of keys.

8.At about 1404 hours on the same day, in the presence of the 1^st defendant, PW3 conducted a search of the five carton boxes found on the trolley taken by the 1^st defendant.  Each of the five carton boxes was found to contain 30 blocks of dangerous drugs which were wrapped in adhesive tapes.  There were accordingly a total of 150 blocks of dangerous drugs (collectively “DD1”)  inside the five carton boxes.

9.At about 1410 hours on the same day, PW2 declared arrest on the 1^st defendant for the offence of trafficking in a dangerous drug.  When cautioned, the 1^st defendant stated that since he was in need of money, he helped someone to unpack dangerous drugs for delivery to other people. 

10.At about 1414 hours on the same day, the 1^st defendant was escorted by the police to Room 401 for further investigation.  With the keys found on the 1^st defendant, the police unlocked the gate and entered Room 401.  On the strength of a search warrant and in the presence of the 1^st defendant, PW3 conducted a search of Room 401 and found (inter alia)  the following items:

(1)  multiple carton boxes and nylon bags containing a total of 450 blocks of dangerous drugs (collectively “DD2”);

(2)  two packs of empty resealable plastic bags;

(3)  multiple dive bags and a pile of empty nylon bags;

(4)  a pack of plastic straps;

(5)  an electronic scale;

(6)  three rolls of adhesive tapes;

(7)  a pair of gloves;

(8)  a cutter;

(9)  a pair of scissors; and

(10)  a ballpen and two marker pens.

11.At about 1431 hours on the same day, PW2 declared arrest on the 1^st defendant again for the offence of trafficking in a dangerous drug.  Under caution, the 1^st defendant stated that DD2 were the dangerous drugs that he unpacked from the dive bags for other people. 

Arrest of D2 at Savoy Garden

12.Upon a review of the relevant CCTV footage, the police found that on 31 March 2021, the 1^st defendant had delivered to Savoy Garden, Shatinpark Stage 3, 13-15 Kong Pui Street, Sha Tin (“Savoy Garden”)  two carton boxes which were received by the 2^nd defendant, who conveyed the two boxes on a trolley to the 3^rd floor of Savoy Garden.  At all material times, the 2^nd defendant was the sole tenant of the premises at Flat 3, 3^rd floor, Savoy Garden (“Flat G”). 

13.On the early morning of 3 April 2021, a team of police officers (including DPC12909 (“PW4”)  and DPC8627 (“PW5”))  conducted an anti-narcotics operation outside Savoy Garden.

14.At about 0455 hours on 3 April 2021, when the 2^nd defendant alighted from a taxi at Kong Pui Street near Savoy Garden, PW5 went forward to intercept the 2^nd defendant and declared his police identity.  Upon search by PW5, the 2^nd defendant was found in possession of two mobile phones and a bunch of keys.

15.At about 0503 hours on the same day, the 2^nd defendant was escorted to Flat G by the police.  The officers entered Flat G using the keys found on the 2^nd defendant.  On the strength of a search warrant and in the presence of the 2^nd defendant, PW5 conducted a search of Flat G and found inside a bedroom of Flat G:

(1)  26 blocks of dangerous drugs which were placed inside a carton box;

(2)  another carton box which was empty;

(3)  one block of dangerous drug (contained in a black plastic bag)  which was placed on a desk; and

(4)  15 blocks of dangerous drugs which were placed inside a suitcase.

16.The above 42 blocks of dangerous drugs (collectively “DD3”)  found inside Flat G were seized by the police. 

17.At about 0517 hours on the same day, the 2^nd defendant was arrested by PW5 for the offence of trafficking in a dangerous drug.  Under caution, the 2^nd defendant stated that he was paid to receive dangerous drugs (namely cocaine)  for others and to deliver the drugs to other people. 

Follow-up investigation

18.In the cautioned video-recorded interviews conducted with the 1^st defendant by the police on 3 April 2021, the 1^st defendant stated (inter alia)  the following:

(1)  He was recruited to the job of drug trafficking about six months ago by a friend known as Marcus, to whom he left a phone number for contact. Around one or two weeks later, he received a call from a person known as Sifu, who told him that his job was to unpack and repackage dangerous drugs for delivery to other people;

(2)  As instructed by Sifu, he rented Room 401 about two to three months ago for the purpose of storing dangerous drugs. The deposit and rents were paid by Sifu. He had visited Room 401 from time to time but he then handed over the keys to Room 401 to Sifu as per Sifu’s request;

(3)  In March 2021, Sifu passed him back the keys to Room 401 and gave him a mobile phone for further communication. When he returned to Room 401, he saw some 20 dive bags in the room. He was asked by Sifu to unpack and repackage the dangerous drugs contained in the dive bags for delivery to other people;

(4)  As per Sifu’s instruction, he took out the blocks of dangerous drugs from the dive bags and put them into nylon bags with 30 blocks per bag. He then packed the bags of dangerous drugs into paper boxes with one nylon bag (containing 30 blocks of drugs)  placed in each box;

(5)  On 31 March 2021, he was instructed by Sifu to deliver two boxes of dangerous drugs to Savoy Garden. He then took two boxes of drugs (including DD3)  to Savoy Garden where he met a male (ie the 2^nd defendant)  who came to collect the boxes;

(6)  On 2 April 2021, he was instructed to deliver five boxes of drugs to Sha Tin and Sheung Shui. As he left the Building with the five carton boxes containing DD1, he was intercepted by the police; and

(7)  He was promised a remuneration of over $50,000 for the job, although he had yet to receive the money.

19.In a cautioned video-recorded interview conducted with the 2^nd defendant by the police on 3 April 2021, the 2^nd defendant stated (inter alia)  the following:

(1)  He came to know a person known as CJ at a bar in October 2020. On 28 March 2021, he received a call from CJ who offered him a job with high rewards. He knew that the job was to deal with dangerous drugs, namely cocaine, and he was offered a reward of HK$2,000 for delivering each pack of cocaine. He expected to earn about HK$1 million in half a year;

(2)  On 30 March 2021, accompanied by CJ, he rented Flat G via a property agent for using the flat as a place for storing dangerous drugs. He was also given a work phone by CJ for contact;

(3)  On 31 March 2021, he was told by CJ that a batch of cocaine would soon be delivered to Flat G. Later on the same day, he received a call on the work phone from an unknown person who asked him to receive two boxes of cocaine. He then collected two carton boxes from the 1^st defendant outside Savoy Garden, and he used a trolley to convey the two carton boxes to Flat G;

(4)  After taking the two carton boxes of drugs to Flat G, he received a call on the work phone from an unknown person who asked him to unpack the boxes, in which he found numerous blocks of cocaine (including DD3). He was instructed to place 15 blocks of cocaine into a suitcase and put another three blocks of cocaine into a rucksack for delivery to a person near Savoy Garden. Following the instructions given to him on the work phone, he delivered the suitcase and the rucksack containing totally 18 blocks of cocaine to a person at a nearby restaurant on 1 April 2021 (“the 1^st Delivery”);

(5)  On 2 April 2021, he received a call on the work phone from an unknown person who asked him to buy a new suitcase to Flat G and to place 15 blocks of cocaine into the suitcase like before. He was also asked to put two blocks of cocaine into a rucksack that he brought to the flat. Later on the same day, he was instructed to deliver one block of cocaine to a person near Savoy Garden. He thus took out one block of cocaine away from the rucksack (contained in a black plastic bag), and brought the rucksack containing one block of cocaine for delivery to the person outside Savoy Garden (“the 2^nd Delivery”); and

(6)  On the early morning of 3 April 2021, he was instructed on the work phone to deliver the 15 blocks of cocaine that he had placed inside the suitcase at Flat G to another person. When he returned to Savoy Garden for collecting the 15 blocks of cocaine at about 0500 hours on the same day, he was intercepted by the police outside Savoy Garden.

20.The owner of Room 401 and the responsible estate agent confirmed that Room 401 had been rented to the 1^st defendant as the sole tenant since 23 January 2021 for a tenancy period of two years. 

21.The owner of Flat G and the responsible estate agent confirmed that Flat G had been rented to the 2^nd defendant as the sole tenant since 30 March 2021 for a tenancy period of two years. 

22.Upon examination by the Government Chemist:

(1)  DD1 were found to contain a total of 150.34 kilogrammes of a solid containing 129.35 kilogrammes of cocaine;

(2)  DD2 were found to contain a total of 449.57036 kilogrammes of a solid containing 372.70617 kilogrammes of cocaine;

(3)  DD3 were found to contain a total of 42.19 kilogrammes of a solid containing 35.478 kilogrammes of cocaine.

23.As of April 2021:

(1)  The total street value of DD1 was estimated to be HK$177,100,520;

(2)  The total street value of DD2 was estimated to be HK$529,593,884; and

(3)  The total street value of DD3 was estimated to be HK$49,699,820.

24.The 1^st defendant now accepts and admits that:

(1)  Between 1 October 2020 and 2 April 2021 (both dates inclusive), in Hong Kong, he conspired together with the said Marcus, the said Sifu, and other person or persons unknown to unlawfully traffic in a dangerous drug, namely cocaine, during which he had helped to store, unpack, and repackage dangerous drugs (including DD1 and DD2)  at Room 401 and delivered two carton boxes of dangerous drugs (including DD3)  to the 2^nd defendant (Charge 4); and

(2)  At the material time, he possessed DD1 and DD2 for the purpose of unlawful trafficking (Charges 1 and 2).

25.The 2^nd defendant now accepts and admits that:

(1)  Between 28 March 2021 and 3 April 2021 (both dates inclusive), he conspired together with the said CJ and other person or persons unknown to unlawfully traffic in a dangerous drug, namely cocaine, during which he had helped to store, unpack, and repackage dangerous drugs (including DD3)  at Flat G and had made the 1^st Delivery and the 2^nd Delivery and delivered a total of 19 blocks of cocaine to other persons (Charge 5); and

(2)  At the material time, he possessed DD3 for the purpose of unlawful trafficking (Charge 3).

26.Regarding the personal background of the defendants, the 1^st defendant is 29 years of age.  The 1^st defendant is single.  He finished a Diploma Yi Jin programme for design, and continued his studies in design at the College of International Education (“CIE”). 

27.However, after Year 1 at the CIE, he quitted studying and began working in a large chain electronic store as a salesperson and was able to earn about $20,000 a month. He has also worked as a part-time warehouse worker, earning $5,000 to $6,000 a month. 

28.He yielded to financial temptation when he was later offered by Marcus, as referred to in the Summary of Facts, to man the warehouse for drugs at $50,000 per month.  The 1^st defendant has a clear criminal record.

29.The 2^nd defendant is 23 years of age.  He is single.  He was 19 at the time of the offence.  Prior to his arrest, the 2^nd defendant was living with his grandmother in a public housing unit in Tuen Mun. 

30.The 2^nd defendant has one previous conviction.  It is for the offence of taking part in an unlawful assembly committed in 2018, for which he was put on probation for 12 months.

31.The 2^nd defendant had been working as a warehouse keeper before his arrest, earning about $9,000 per month.  The 2^nd defendant was out of a job at the time of the offence.  He agreed to the job offered by CJ, as referred to in the Summary of Facts, as he was promised a reward of HK$2,000 for delivering each pack of cocaine.

32.Unfortunately, the 2^nd defendant resorted to earning quick money by engaging himself in trafficking in dangerous drugs.  He is said to be extremely remorseful for his misdeeds. 

33.The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  The first step is to identify the relevant sentencing band (or bracket)  applicable to the quantity of drug concerned.  The second step is an assessment of the role and culpability of the defendant based on the evidence before the court.  The third step is to identify where in the relevant band of the guideline the defendant comes.  It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant.  The fourth step is to consider the aggravating factors which bear on the “notional sentence after trial”.  The fifth step is to have regard to any matters of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”.  The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just, and balanced sentence”. 

34.I shall adopt a similar “six step” approach in arriving at the appropriate sentences for all the charges in the present case. 

35.Regarding step 1, this involves the identification of the appropriate initial sentencing range applicable to the quantity of drugs involved, before considering the role and culpability of the defendants under step 2.

36.Dealing firstly with Charges 1 and 2 (trafficking in a dangerous drug)  against the 1^st defendant, the narcotic contents of the total quantity of dangerous drugs seized (ie DD1 and DD2)  were 502.05617 kilogrammes of cocaine.  I am told by the prosecution that this is the largest single seizure of cocaine in the history of Hong Kong. 

37.According to the sentencing guidelines for trafficking in cocaine set out in HKSAR v Huang Ruifang [2025] HKCA 234 at paragraph 62, for trafficking in between 15 kilogrammes and 30 kilogrammes of cocaine, the appropriate starting point after trial would be 27 to 30 years’ imprisonment.  Above 30 kilogrammes, sentences will fall within the discretion of judges bearing in mind the practical and realistic ceiling of 35 years’ imprisonment, as established in HKSAR v Sum Ka Wa [2024] 4 HKLRD 777. 

38.Of course, it is well recognised that the sentencing/starting point would not increase proportionally for a very large quantity of drugs, and the graph will flatten as the quantity increases. 

39.Bearing all of the above in mind, I hold that the overall starting point for trafficking in 502.05617 kilogrammes of cocaine under Charges 1 and 2 should be around 33 years’ imprisonment. 

40.Turning to Charge 3 (trafficking in a dangerous drug)  against the 2^nd defendant, the narcotic contents of the quantity of dangerous drugs seized (ie DD3)  were 35.478 kilogrammes of cocaine. 

41.Applying the same consideration as above, I hold that the starting point under Charge 3 against the 2^nd defendant should be 30 years and 3 months’ imprisonment. 

42.Turning to Charge 4 (conspiracy to traffic in a dangerous drug)  against the 1^st defendant, 33 years is the starting point for trafficking in around 502 kilogrammes of cocaine on a single occasion.  It is important to remember that under Charge 4, what is charged is a conspiracy.  In HKSAR v Leung King Hung [2024] HKCA 804, the Court of Appeal considered that in a conspiracy to traffic, the notional starting point would be based not only on the quantity of drugs seized, but also on the duration of the conspiracy, the number of people involved and their role.  Certainly, the evidence in this case revealed that the 1^st defendant had dealt with more drugs than those charged under Charges 1 and 2 (such as delivering two carton boxes of dangerous drugs, including DD3, to the 2^nd defendant).  Taking into account all the relevant considerations in the present case, I hold that the notional starting point under step 1 for Charge 4 (conspiracy to traffic)  should be 34 years’ imprisonment. 

43.Turning finally to Charge 5 (conspiracy to traffic in a dangerous drug)  against the 2^nd defendant, again the evidence in this case revealed that the 2^nd defendant had dealt with more drugs than those charged under Charge 3 (such as making the 1^st Delivery and the 2^nd Delivery on separate locations, involving a total of 19 blocks of cocaine to other persons).  Taking into account all the relevant circumstances in the present case, I hold that the notional starting point under step 1 for Charge 5 (conspiracy to traffic)  should be 31 years’ imprisonment. 

44.Regarding step 2, concerning the role and culpability of the defendants, I accept that based on the Summary of Facts, as fully read out just now, the 1^st and 2^nd defendants were merely couriers and storekeepers of the drugs.  Although they were the tenants of respectively Room 401 and Flat G in which the drugs were stored, there is no evidence to establish that they were engaged in actual (or direct)  trafficking, as explained at paragraph 62 of Herry Jane Yusuph, supra. 

45.Regarding step 3, based on my findings made at step 2, I would adopt the following “notional sentences after trial” for the offences in question: 

(1)  regarding the 1^st defendant on Charge 1 (trafficking): 33 years’ imprisonment;

(2)  regarding the 1^st defendant on Charge 2 (trafficking): 33 years’ imprisonment;

(3)  regarding the 2^nd defendant on Charge 3 (trafficking): 30 years and 3 months’ imprisonment;

(4)  regarding the 1^st defendant on Charge 4 (conspiracy to traffic): 34 years’ imprisonment;

(5)  regarding the 2^nd defendant on Charge 5 (conspiracy to traffic): 31 years’ imprisonment.

46.Regarding step 4, I am required to consider any aggravating factors, which would go to enhance the “notional sentences after trial” identified under step 3.  I do not consider that there is any such aggravating feature in the present case. 

47.Regarding step 5, I consider that the only factor which may reduce the defendant’s sentences are the timely guilty pleas, for which I will give them a one-third discount.  Accordingly, the defendants’ sentences are reduced to the following:

(1)  regarding the 1^st defendant on Charge 1 (trafficking): 22 years’ imprisonment;

(2)  regarding the 1^st defendant on Charge 2 (trafficking): 22 years’ imprisonment;

(3)  regarding the 2^nd defendant on Charge 3 (trafficking): 20 years and 2 months’ imprisonment;

(4)  regarding the 1^st defendant on Charge 4 (conspiracy to traffic): 22 years and 8 months’ imprisonment;

(5)  regarding the 2^nd defendant on Charge 5 (conspiracy to traffic): 20 years and 8 months’ imprisonment.

48.I order that all the above sentences are to run concurrently, thus resulting in a sentence of 22 years and 8 months’ imprisonment for the 1^st defendant and a sentence of 20 years and 8 months’ imprisonment for the 2^nd defendant. 

49.Finally, I consider that the sentences indicated above to be fair, just, and balanced sentences, taking into account the very serious nature of the present case. 

50.Accordingly, the 1^st defendant is sentenced to 22 years’ imprisonment on Charge 1, 22 years’ imprisonment on Charge 2, 22 years and 8 months’ imprisonment on Charge 4, and I order that the sentences are to run concurrently. 

51.In the case of the 2^nd defendant, I sentenced him to 20 years and 2 months’ imprisonment on Charge 3, and 20 years and 8 months’ imprisonment on Charge 5.  Again, I order the sentences to run concurrently.

52.So that the total sentence to be served by the 1^st defendant is 22 years and 8 months’ imprisonment, and the total sentence to be served by the 2^nd defendant is 20 years and 8 months’ imprisonment.

Ms Cherry Chong, SPP of the Department of Justice, for HKSAR

Mr Lai Ming, instructed by CFN Lawyers, for the 1^st accused

Mr Charles Chiu, instructed by Betty Chan & Co, assigned by DLA, for the 2^nd accused