HKSAR v. Ng Ka Yui

HCCC 429/2023

[2025] HKCFI 4057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 429 OF 2023

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 counts of trafficking in dangerous drugs[1] before Magistrate Ms. Leung Siu-ling, admitted to the summary of facts and was committed, on 14^th December 2023, to the Court of First Instance for sentence. He confirmed his pleas and admissions before me and the convictions were duly recorded.

2.Particulars of count 1 are that the defendant, on 30^th March 2022, outside Room E, Unit U, 13^th floor, Phase 1, Kwun Tong Industrial Centre, Kwun Tong Road, Kowloon, unlawfully trafficked in dangerous drugs, namely 14.57 grammes of a solid containing 11.39 grammes of ketamine and 4.42 grammes of a solid containing 3 grammes of cocaine.

3.Particulars of count 2 are that he on the same day as count 1, at Room E of the same address as count 1, together with Cheung Chin-hei[2], unlawfully trafficked in dangerous drugs, namely 123.32 grammes of a solid containing 86 grammes of ketamine and 12.5 grammes of a solid containing 8.52 grammes of cocaine.

FACTS

4.Kwun Tong Industrial Centre was the target of a police anti-narcotics operation on 30^th March 2022.

5.The defendant was seen entering the building at 7pm.  He was intercepted at 7:15pm when he came out of Room E.

6.The following items were found from his trousers pockets upon search:

(1) 1 HK$10 banknote containing traces of a solid containing cocaine (E1);

(2) 1 plastic bag (E3) containing 33 plastic bags containing a total of 4.42 grammes of a solid containing 3 grammes of cocaine (E2);

(3) 1 plastic bag (E5) containing 17 plastic bags containing a total of 10.4 grammes of a solid containing 8.77 grammes of ketamine (E4);

(4) 1 plastic bag (E7) containing 6 plastic bags containing a total of 4.17 grammes of a solid containing 2.62 grammes of ketamine (E6):

(5) HK$2,412 in cash (E98);

(6) an iPhone 12 (E163) including a SIM card (E164);

(7) a Samsung mobile phone (E165 with SIM card (E166); and

(8) an iPhone (E167) with SIM card (E168).

7.The narcotics found on the defendant’s person outside Room E form the subject matter of count 1.

8.The defendant was arrested for trafficking in dangerous drugs.  He claimed under caution that a “Chan Chai (陳仔)” had told him to retrieve the drugs for onward distribution from upstairs[3].

9.A search warrant was executed and the police entered Room E.  The narcotics contents particularized in count 2, together with various paraphernalia connected to packaging and trafficking in dangerous drugs were found and seized.

10.The defendant was arrested again for trafficking in dangerous drugs.  He claimed under caution that the “coke” and “K chai” in Room E belonged to the “Chan Chai” he mentioned, and to a “Boss Cho (曹老闆)”, and that he was only responsible for their delivery[4].

11.At around 11:26pm the same day, Cheung Chin-hei was intercepted outside Room E.  He was in possession of a key that could access the room.

12.In the defendant’s video recorded interview, he claimed that all the dangerous drugs belonged to the said “Chan Chai”, whom he had met for about 10 odd times and would address as “Fei Chai (肥仔)” or “Fei Chai Hei (肥仔希).  On the night of 30^th March, the defendant called and told Chan Chai that he will soon run out of drugs on his person for delivery.  Chan Chai then told the defendant to go to Room E to get more drugs to make the deliveries.  

13.As at the time of the video recorded interview, the defendant claimed that it was through trafficking in the drugs in Room E that he came to know Chan Chai, and he had known him for about a month.  The defendant did not know his full name, but believed that he was under 16 years old.  The ketamine and cocaine that the police found in Room E were put there by Chan Chai.

14.The defendant did not have the key to Room E, but the room was usually left unlocked.  Every time, it would be Chan Chai who went up to Room E first, and then the defendant would go.  

15.On the morning of his arrest, the defendant met the above mentioned “Boss Cho” for the first, and only, time at Yue Man Square, when Boss Cho asked the defendant deliver to him some drugs.  The defendant took a taxi and delivered 4 packets of cocaine, which the defendant already had on his person, to Boss Cho.  Boss Cho did not pay the defendant for those 4 packets.

16.The defendant would usually take public transport to deliver drugs to the buyers.  He would charge customers $300 for a small packet.  He did not know how much each packet weighted.  The defendant would keep $25 for each delivery[5]. Part of the cash found on his person was from drug trafficking.  All the drugs in Room E were for delivery, and the large amount of transparent resealable plastic bags were for packaging the drugs.  He did not take part in the packaging work.  

17.The defendant claimed that there were other people who had the same job as his.  He did not know their age but there were about 5 others.  He had met 2 of them, who were both males aged between 18 and 20.

18.The defendant confirmed that he was a member of the groups in telecommunications applications on his phones that were used for communicating with Fei Chai or Boss Cho.  There were other names in the groups, and the messages were in connection to the trafficking of the drugs in Room E.  He and the others would text the amount of drugs remaining in Room E, or how much had been taken out for delivery.

19.Investigations revealed that the defendant had over 370 phone calls with Cheung Chin-hei in the period 3^rd February and 30^th March 2022.

20.In March 2022, the estimated street value of powder cocaine was about HK$889 per gramme, that of crack cocaine was about HK$1,488 per gramme and that of ketamine was about HK$589 per gramme.

21.The cocaine found on the defendant could be sold at street level at HK$3,929 (in powder form) or HK$6,577 (in crack form); and the ketamine could be sold at street level at HK$8,582.

22.The cocaine in Room E could be sold at street level at HK$11,113 (in powder form) or HK$18,600 (in crack form); and the ketamine could be sold at street level at about HK$72,635.

23.The defendant, through his admission to the Summary of Facts, had admitted and accepted that he had unlawfully trafficked in the dangerous drugs in counts 1 and 2.

PREVIOUS CONVICTION

24.The defendant was of clear record at the time of his commission of the present offences.  He was, however, on bail for a case involving criminal damage, for which he was subsequently ordered to be detained at the Detention Centre on 1^st August 2022.

25.The fact that he committed the drug trafficking offences whilst on court bail for the criminal damage case is an aggravating factor and will be dealt with below.  

BACKGROUND AND MITIGATION

26.The defendant was 16 years old at the time of the offences.  He is now 20 years old.  He was born in Hong Kong and educated here up to Form 4.  His father had passed away in 2018, his mother is 52 and a nurse.  The defendant has no siblings, is single and lives with his mother.  The defendant was a student prior to his arrest.  He has been in remand since 30^th March 2022.

27.The defendant wrote in mitigation, telling the court that during his period of remand, he has been constantly reflecting and realized that he made a terrible mistake when he decided to traffic in drugs for quick money.  He has wasted the most precious time of his life over just a few thousand dollars.  He feels sorry every time his mother visits him, his heart aches for his aging mother, who now has to support the family on her own.  The defendant tells the court that he has been actively participating in various courses to improve himself, hoping to acquire a skill or two to equip himself for when he is released, so that he will be able to work and share his mother’s burden.  The defendant is extremely remorseful, and wishes for a chance to reform, to start a new life.

28.The defendant’s mother blames herself for failing to provide the guidance that the defendant needed, leading to his commission of the offences.  Seeing her son like this breaks her heart, and she urges the court to take into consideration the defendant’s genuine remorse and his naivety in committing the crime, and to be lenient towards him so that he will be able to make a fresh start.  

SENTENCING

29.The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.

30.Although there are two separate counts, given the fact that the defendant’s possession of the drugs on his person was intrinsically linked to the drugs in Room E, he will be sentenced for the combined quantity of drugs found[6].

31.Upon the adoption and application of the sentencing approach and tariff bands set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Huang Ruifang [2025] HKCA 234, and HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, and upon the application of the combined approach and methodology regarding sentencing in cases where different types of drugs were being trafficked in HKSAR v Yip Wai Yin [2004] 3 HKC 367 and HKSAR v Chan Yuk Leong CACC 318/2013, I sentence the defendant as follows.

ROLE AND CULPABILITY

32.According to the facts and the defendant’s video recorded interview, the defendant had made one delivery of 4 packets of cocaine to “Boss Cho” on the morning of his arrest.  The defendant had contacted Chan Chai on the evening of the arrest, telling Chan Chai that he was going to run out of drugs on his person.  When the defendant was intercepted by police officers after he had been in the building for about 15 minutes, he must have had restocked with the drugs found on his person from the stock of drugs in Room E.  It is, therefore, an irresistible inference that the defendant had made other deliveries of dangerous drugs prior to his arrest.

33.Furthermore, the defendant was given a “company” phone to communicate with the boss, and to update the inventory of drugs in Room E.  It is clear that the defendant was part of a group of people engaged in the trafficking of cocaine and ketamine, using Room E as a storage unit for drugs, with the defendant’s role as a courier who delivered the drugs to the customer, collected from them their payment, and from that took his own cut.  

34.The defendant’s culpability is higher than that of a simple courier or storekeeper, which must be reflected by enhancing the arithmetical starting point.  

35.For the combined quantity of narcotic contents in counts 1 and 2, being 11.52g of cocaine and 97.39g of ketamine, with cocaine as the base drug given its higher narcotic potency, with the defendant’s role as someone who had been directly trafficking in the drugs for rewards, and the fact that it is clear that he was part of a larger group of traffickers, I adopt a starting point of 98 months’ imprisonment, which is a 9 month increase to the 89 months starting point for a simple courier trafficker.

AGGRAVATING FACTORS

36.For the aggravating factors of trafficking in two different types of drugs, thus catering for a wider market; and for the defendant committing the offences whilst on court bail for a different offence, I will enhance the sentence by a further 3 and 6 months, respectively, taking it to 107 months’ imprisonment.

MITIGATING FACTORS

37.As to whether the age of the defendant should be regarded as a mitigating factor that would warrant a reduction in sentence, I have the following observations.

38.The defendant had received education up to Form 4 level.  All students in Hong Kong would have been taught not to have anything to do with dangerous drugs.  The defendant must also have been aware of all the promotional materials put out by the government, warning young people about the serious consequences of getting involved with drugs in any way.  

39.Based on the circumstances surrounding the defendant’s commission of the offences, it is clear that he was not a simple and naïve young person who was led astray by others.  Knowing full well the risks, he made the conscious decision, not just once, but multiple times, to not only be a drug courier, but a direct trafficker in cocaine and ketamine.  

40.Furthermore, As McWalters J stated clearly in the case of HKSAR v Bayanmunkh [2012] 2 HKC 233:

“…no special consideration will be accorded to the young, the aged, the ill or disadvantaged or the financially impoverished who are recruited to become drug couriers.”

41.This principle is applicable to someone who had been recruited as more than a drug courier.  As such, I refuse to grant the defendant any discount based on his age.

42.Having said that, I find the fact that the defendant had attended and passed a course in Spreadsheet Processing while in remand a hopeful indication of his resolve to rehabilitate and such positive attitude ought to be recognized.  I will reduce his sentence by 2 months for his efforts, taking the sentence down to 105 months’ imprisonment.  

43.The remaining mitigating factor would, of course, be his timely guilty pleas.

TOTALITY

44.Taking a step back, I find that the final sentence of 70 months’ imprisonment for the two counts after plea is fair, just and balanced in the circumstances.  

45.To achieve this combined final sentence, I will deal with the defendant as follows.

46.In relation to count 1, I sentence him to 44 months’ imprisonment after plea.  This is the result of a starting point of 5 years based on his role as a direct trafficker, which is then enhanced by 8 months and reduced by 2 months according to the aggravating and mitigating factors above.  

47.In relation to count 2, I adopt a combined starting point of 7 years 4 months for his role as a direct trafficker, enhanced by 8 months and then reduced by 2 months for the aggravating and mitigating factors, taking it to 7 years 10 months, and then rounded down to 62 months’ imprisonment after plea.

48.I order 8 months of the sentence in count 1 to be served consecutively to the sentence in count 2, the balance concurrently, leading to the final sentence of 70 months, or 5 years 10 months’ imprisonment.