HKSAR v. Sin Ching Ho and Another
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HCCC 343/2024 [2025] HKCFI 3590 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 343 OF 2024 ________________________
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________________________ REASONS FOR SENTENCE ________________________ 1.The 1st and 2nd defendants pleaded guilty to the following charges and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 21 October 2024. 2.The statement of offence and particulars of offence of the charges stated as follows:
3.The case was then committed to the Court of First Instance for sentence. Before this court, both the 1st defendant and the 2nd defendant had confirmed their plea and their agreement to the Summary of Facts through counsel. 4.The Summary of Facts admitted by the defendants provide as follows, and I shall quote those facts in full. 5.On 9 July 2022, Customs and Excise (“C&E”) officers conducted an anti-narcotics operation in Sham Shui Po, Kowloon. By around 7.20 pm, the 1st defendant was seen wandering around Fu Cheong Estate in Sham Shui Po. The 1st defendant then entered Tower 3B of Cullinan West, 28 Sham Mong Road, Sham Shui Po (“Tower 3B”). By around 10.28 pm, the 1st defendant walked out from 5th floor of Tower 3B to a podium. He was intercepted by C&E officers outside the entrance on 5th floor of Tower 3B. At that time, he was holding a plastic bag (Exhibit 1) in his left hand. Inside the bag there were:
6.Inside the bag, there was in total 11.84 grammes solid containing 10.51 grammes of cocaine. 7.Upon arrest and under caution for contravening the Dangerous Drugs Ordinance (Cap 134), the 1st defendant admitted that he knew the bags contained “coke”, which meant cocaine, and that he was the owner of the cocaine, which he obtained from Room G, 19th floor of Tower 3B (“Room G”). 8.By around 10.40 pm on 9 July 2022, C&E officers escorted the 1st defendant to the area outside Room G. Using the passcode provided by the 1st defendant, C&E officers opened the door lock to Room G and gained entry to Room G. Room G was a studio apartment. There was not any bed or household item inside Room G. Search of Room G found:
9.Inside Room G there were in total:
10.In total, C&E officers seized from the 1st defendant and inside Room G:
11.There were traces of phenacetin on the cooking stove of the kitchen inside Room G. 12.In July 2022, the average street value of cocaine was HK$1,025 per gramme, and that of ketamine was HK$574 per gramme. Therefore, the total estimated street value of the drugs seized in the instant case was HK$1,583,115.98. 13.Upon further caution inside Room G, the 1st defendant revealed that:
14.Upon arrest and under caution inside Room G for contravening the Dangerous Drugs Ordinance, the 2nd defendant revealed that:
15.C&E officer further seized:
16.As observed by the Forensic Scientist of the Government Laboratory who inspected Room G in the early hours on 10 July 2022:
17.On 9 July 2022:
18.Regarding the personal background of the defendants, the 1st defendant was born in Hong Kong and is now 19 years old. He was 16 years and 11 months old at the time of his arrest in July 2022. He received education up to Secondary 1 in Hong Kong and left school after unsuccessful repeats of his Secondary 2. 19.The 1st defendant’s parents were separated since he was young, and he lived with his mother and his elder sister before his arrest. The 1st defendant is largely dependent on his mother, who works as a waitress in a restaurant. After turning 16 years old, the 1st defendant found a short-term job as a general staff in a gym, between March 2022 and May 2022, earning around $10,000 per month. He was soon laid off as there was simply too few visitors to the gym at which he was working. 20.The 1st defendant became wholly dependent on his mother since May 2022. After learning that the 1st defendant was out of his job, his friend introduced him to a job which would offer him some “quick money”. Unfortunately, the 1st defendant then agreed to take up the work without giving much thought to his dire legal consequences. 21.The 2nd defendant was born in Hong Kong in March 2001. The 2nd defendant is now 24 years of age. He was 21 years old at the time of his arrest. 22.The 2nd defendant has 10 previous convictions, with only one related to dangerous drugs. It is for the offence of possession of dangerous drugs committed in 2021, for which he was sentenced to 2 months’ imprisonment, suspended for 24 months. 23.The 2nd defendant received education up to Form 3 level in Hong Kong. He obtained a scholarship for his participation in the school football team. He then from September 2021 studied for a diploma of vocational education at the Youth College in Kwai Fong. He has not completed the diploma because he was arrested for the present case. 24.He had also worked as an air-conditioning apprentice on a part-time basis, earning $15,000 a month before he was arrested. 25.The 2nd defendant is single. His parents are divorced. He lived with his father and his elder sister at a public housing estate. I am told that the 2nd defendant was a drug addict, and this has been confirmed in a urine test carried out shortly after his arrest. 26.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”. 27.I shall adopt a similar six-step approach in arriving at the appropriate sentences for all the charges in the present case. 28.Regarding step one as applied to the 1st defendant, this involves the identification of the appropriate initial sentencing range applicable to the quantity of drug involved, before considering the role and culpability of the 1st defendant under step two. 29.Taking Charges 1 and 2 (trafficking in a dangerous drug) against the 1st defendant together, the narcotic content of the total quantity of dangerous drug seized was 602.53 grammes of cocaine. For this purpose, I shall ignore the minute quantity of 0.03 grammes of a solid containing cocaine and ketamine referred to in Charge 2. 30.According to the sentencing guidelines for trafficking in cocaine set out in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138 at paragraph 62, for trafficking in between 500 grammes and 1,500 grammes of cocaine, the appropriate starting point after trial would be 16 to 20 years’ imprisonment. 31.Regarding step two as applied to the 1st defendant, concerning the 1st defendant’s role and culpability, I accept that the 1st defendant was no more than a courier, in that his role was to deliver the drug for someone for a reward. 32.Regarding step three as applied to the 1st defendant, for 602.53 grammes of cocaine, an arithmetical approach towards the guidelines would lead to a notional sentence after trial of 16 years and 4.9 months’ imprisonment. Based on my finding of the 1st defendant’s role and culpability under step two above, I would adopt that as the notional sentence after trial in this case. 33.Regarding step four as applied to the 1st defendant, I consider that there is no aggravating factor which would enhance the notional sentence after trial. 34.Regarding step five as applied to the 1st defendant, I consider that the only mitigating factor which may reduce the 1st defendant’s sentence is his timely guilty plea, for which I will give him a one-third discount. As mentioned above, the 1st defendant was just under 17 at the time of the offences. Notwithstanding submissions urged on his behalf, I do not see fit to afford him any additional discount, alas it may give a wrong signal to and encouragement for minors to engage in this evil trade. 35.Accordingly, the 1st defendant’s overall sentence is reduced to 10 years and 11 months’ imprisonment. 36.To achieve the totality of 10 years and 11 months’ imprisonment, I sentence the 1st defendant as follows:
37.Finally, I consider that a sentence of 10 years and 11 months’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and in the circumstances of the 1st defendant. 38.I turn now to the 2nd defendant. Regarding steps one to three as applied to the 2nd defendant on Charge 2 (trafficking in dangerous drugs), the narcotic content of the quantity of dangerous drugs seized was 592.02 grammes of cocaine. Again, I shall ignore the minute quantity of 0.03 grammes of a solid containing cocaine and ketamine as referred to in Charge 2. I would adopt 16 years and 4 months’ imprisonment as the notional sentence after trial for Charge 2. 39.Regarding steps one to three as applied to the 2nd defendant on Charge 3 (manufacturing a dangerous drug), in determining the notional sentence after trial, I take into account the following:
40.In the present case, taking into account all the relevant circumstances, I hold that the notional starting point on Charge 3 (manufacturing a dangerous drug) against the 2nd defendant should be 19 years’ imprisonment. 41.Regarding step four as applied to the 2nd defendant, I consider that there is one particular aggravating factor which would enhance the notional sentence after trial. 42.As mentioned above, the 1st defendant was 16 years and 11 months old at the time of his arrest in July 2022. He was thus a minor at the material time. 43.From the nature of Charge 2 and the Summary of Facts admitted by the 1st and 2nd defendants and referred to above, I am satisfied beyond reasonable doubt that the 2nd defendant had taken part in a joint enterprise which used a minor (ie the 1st defendant) to traffic in dangerous drugs, in particular, using the 1st defendant to deliver the cocaine manufactured inside Room G by the 2nd defendant, in terms of section 56A of the Dangerous Drugs Ordinance, Cap 134. Although I am not satisfied from the evidence that the 2nd defendant was necessarily the person who actually recruited and employed the 1st defendant. 44.Taking into account all the circumstances of the present case, for this aggravating factor, I would enhance the notional sentence after trial by 2 years. I will apply this enhancement to the starting point on Charge 3 (manufacturing a dangerous drug), taking the notional starting point up to 21 years’ imprisonment. This would represent roughly a 10.5 per cent increase from the initial starting point of 19 years. 45.Regarding step five as applied to the 2nd defendant, I consider that the only factor which may reduce the 2nd defendant’s sentence is the timely guilty plea, for which I will give him a one-third discount. I am not minded to exercise my discretion to grant the 2nd defendant a reduction in sentence on the basis that the 2nd defendant intended to use a small part of the dangerous drug for his own consumption. Bearing in mind the large quantity of dangerous drugs involved under Charge 2 (over 590 grammes of cocaine), that a small part of it may have been intended by the 2nd defendant for his own consumption can hardly make a material difference to the starting point. 46.Accordingly, the 2nd defendant’s sentences are reduced to the following:
47.Finally, I consider that a sentence of 14 years’ imprisonment is a fair, just and balanced sentence in all the circumstances of this case and in the circumstances of the 2nd defendant.
Mr Lee Cheuk-wing Marcus, SPP of the Department of Justice, for HKSAR Ms Tjia Luk-ying Josephine, instructed by Chiu, Szeto & Cheng, assigned by DLA, for the 1st accused Mr Pun Chi-ming Chase, instructed by H Y Leung & Co LLP, assigned by DLA, for the 2nd accused |
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