HKSAR v. Yim Kwok Yin, Alex and Another

HCCC 248/2024

[2025] HKCFI 4288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 248 OF 2024

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

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COURT: The 1st accused, D1, is charged with two counts of trafficking in dangerous drugs, namely, 2 kilogrammes of a solid containing 1.637 kilogrammes of cocaine, which the police found in a bag that was passed from D1 to the 2nd accused, D2, outside Sun Tin Wai Estate in Shatin on 10 November 2022 (Charge 1); and 42.19 kilogrammes of a solid containing 34.292 kilogrammes of cocaine, which the police found in D1’s residence in Sun Tin Wai Estate in Shatin on 10 November 2022 (Charge 2).

The 2nd accused, D2, is jointly charged with D1 for Charge 1.

Both defendants have pleaded guilty to their respective charges at the committal stage and have accepted a Summary of Facts for that purpose.

On 27 December 2024, both defendants were formally convicted before me. On the same day, I adjourned the sentence pending the judgment of HKSAR v Huang Ruifang [2025] 2 HKLRD 138, where the sentencing guideline for trafficking in cocaine was expected to be revised. The judgment was subsequently handed down on 5 March 2025, with the revised sentencing guideline being effective immediately as from that day. The prosecution has accepted that the guideline is applicable to the present case against both D1 and D2.

The Facts of the Case

On 10 November 2022, the police mounted an anti-narcotics operation at Sun Tin Wai Estate and conducted surveillance outside the premises at Room 2017, Wing Wai House, Sun Tin Wai Estate (“the premises”).

At around 3.27 pm, D1 was seen leaving the premises with a black shoulder bag (“the bag”) to a car park outside Wing Wai House. D1 boarded a private car (“the car”) bearing a registration number of “JN 20”. D2 was in the driver’s seat; D1 was seen and passing the bag to D2 who placed the bag in the middle compartment of the car. When D1 alighted the car, he was immediately intercepted by the police. D2, who sought to ignite the engine of the car, was soon brought out of the car by the police.

Upon search, two blocks of dangerous drugs, later confirmed to be a total of 2 kilogrammes of a solid containing 1.637 kilogrammes of cocaine (“DD1”), were found inside the bag. These form the basis of Charge 1.

Both defendants were arrested for the offence of trafficking in a dangerous drug. At the time, D2 was found to be in possession of two mobile phones and $2,020 of cash.

Under caution at the scene, D1 stated that DD1 were dangerous drugs which he had delivered to a rider for a reward of $1,000 per block, whilst D2 stated that he was paid a reward of $1,000 to deliver DD1 to Cheung Sha Wan.

At around 3.49 pm, D1 was brought to the premises by the police for further enquiry. Upon search, an electronic scale and a total of 43 blocks of dangerous drugs, namely, 42.19 kilogrammes of a solid containing 34.292 kilogrammes of cocaine (“DD2”), were found in the premises. Further, two mobile phones belonging to D1, being a “white Samsung phone” and a “red Samsung phone”, were also seized by the police for investigation. These form the basis of Charge 2.

Under caution at the scene, D1 stated that DD2 were given to him by a man surnamed Wong (“Mr Wong”).

In a subsequent video-recorded interview, D1 admitted under caution that he had agreed with Mr Wong that he would deliver a batch of cocaine for a remuneration of $1,000 per block in mid-October 2022. In accordance with Mr Wong’s instructions, D1 collected from Mr Wong a batch of cocaine (comprising some 40 blocks of cocaine, including DD1 and DD2) near Kinglet Industrial Building on a day in late October 2022. D1 admitted that he had taken those dangerous drugs to the premises for storage and had, subsequently, weighed the drugs with an electronic scale and marked the weight of the drugs on the packaging.

According to D1’s admission, he had used the white Samsung phone and the red Samsung phone for communication with D2 and Mr Wong respectively. Two days before the arrest, D1 had received a call from D2 and had delivered a quantity of dangerous drugs to D2 near his residence. On the day of the arrest, D1 had received a message from Mr Wong to deliver 2 kilogrammes of cocaine to D2. Upon receiving a call from D2, D1 left the premises to deliver two blocks of dangerous drugs, namely, DD1 to D2.

In a subsequent video-recorded interview, D2 admitted under caution that he had agreed to help D1 with the delivery of certain goods for a remuneration of $1,000 per delivery in late October 2022. D2 was asked by D1 to contact one “KK” for instructions. He believed that KK was their boss and that those goods were dangerous drugs.

According to D2’s admission, he had followed KK’s instructions and had brought a bag from Sun Tin Wai Estate to a refuse station in Yuen Long on a day in late October 2022. On 8 November 2022, D2 followed KK’s instructions again and delivered certain goods that he had previously collected from D1 to a person in Lai King. D2 admitted that the cash found on him at the time of arrest was the reward that he had received for making these two deliveries. On the day of the arrest, D2 was instructed by KK to collect two bricks of dangerous drugs, DD1, from D1 and deliver them to two customers in Cheung Sha Wan and Tai Po afterwards.

The Defendants’ Backgrounds

D1’s Background

D1 is 55 years of age. He is single and was living with his younger brother in Sun Tin Wai Estate at the time of the offence. D1 has an elder sister. His father and mother died in 2014 and 2017 respectively.

D1 was educated up to Form 3 level. He had worked as a second-hand car dealer for around 12 years, as a captain at a karaoke bar for around 15 years, and a delivery contractor at a transportation company for a few years. At the time of the offence, he said he was a casual worker.

In mitigation, Ms Cindy Lee, appearing for D1, drew to my attention that D1 was once addicted to heroin in around 2005. Over the years, he had participated in programmes and had sought help from a private medical practitioner for methadone pills, but, unfortunately, he had not been able to successfully rid himself of his heroin addiction. In around 2011, he was convicted of possession of a dangerous drug, namely, the methadone pills, for which he was fined $2,000.

Ms Lee further submitted that, due to financial difficulties, D1 had been borrowing money from his family to finance his heroin addiction during the pandemic. Thereafter, D1 was introduced to Mr Wong, who proposed that D1 would help him handle a batch of cocaine for a free supply of heroin and a remuneration of $1,000 per block of cocaine.

D2’s Background

D2 is 62 years of age. He was married but divorced after being detained for the present matter. Prior to his arrest, he was living with his younger brother.

D2 was educated up to junior secondary school level. Since then, he had been working as a driver.

In mitigation, Mr Adonis Cheung, appearing for D2, informed the court that D2 has been suffering from poliomyelitis since a young age. Moreover, the mobility of his right lower limb is impaired, and his right knee patella was fractured in 2006. He requires an orthosis, namely, a right leg calliper, to walk. Additionally, D2 was diagnosed with colon cancer with liver and lung metastases in 2010. He was assessed to remain at risk of cancer recurrence by Queen Elizabeth Hospital as of 17 May 2024.

D2 has a clear criminal record.

Sentencing Considerations

The courts of Hong Kong have consistently taken the view that drug-trafficking offences are very serious. This is reflected in the tariff guidelines laid down by the Court of Appeal for trafficking in different types of drugs, whereupon lengthy sentences are invariably imposed on defendants committing such offences, especially when large quantities of drugs are involved.

A six-step approach was set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 to facilitate a consistent approach to sentencing in drug-trafficking cases.

Step 1 : Relevant Guideline Band

The first step involves identifying the relevant guideline band applicable to the quantity of dangerous drugs involved. This case involved one or one kind of dangerous drug, namely, cocaine. As mentioned, the applicable guideline for trafficking in cocaine is now the one revised and set out in HKSAR v Huang Ruifang [2025] 2 HKLRD 138.

For the two charges against D1, the total quantity of cocaine trafficked was 35.929 kilogrammes. For a quantity above 30 kilogrammes of cocaine, the starting point would exceed 30 years and fall within the discretion of the sentencing judge, bearing in mind the practical and realistic ceiling of 35 years of imprisonment and the legislative maximum of life imprisonment for cases of truly exceptional gravity.

D2 faces Charge 1 only, involving the trafficking in 1.637 kilogrammes of cocaine. For a quantity of between 1.5 and 5 kilogrammes of cocaine, a starting point in the range of 20 to 24 years’ imprisonment would be appropriate according to the Huang Ruifang revised guideline.

Step 2 : D1 and D2’s Respective Role and Culpability

The second step in this exercise is to assess D1 and D2’s respective role and culpability based on the evidence. The sentencing guideline proceeds on the premise that the defendant is a courier or a storekeeper, such that the starting point for sentence can be appropriately adjusted where the defendant has a greater or lesser role.

As to D1’s role and culpability, on the facts before me, I accept Ms Lee’s submission that D1 was akin to a mere storekeeper.

According to D1’s cautioned video-recorded interview, he had collected a batch of cocaine (comprising some 40 blocks of cocaine) from Mr Wong on a day in late October 2022, which he stored in his premises. He admitted to have been involved in weighing the drugs with an electronic scale and marking the weight of the drugs on the packaging. At the material time, he was instructed to hand over the two blocks of drugs downstairs of his residence to D2, the “rider”, for onward delivery of the drugs.

On the basis of such evidence, it does not appear to me that D1 was involved in the packaging or repackaging and

the actual dissemination of dangerous drugs on the street as to warrant an increase in the starting point for sentence on account of his role.

In this regard, I note the following features: first, apart from the electronic scale, there were no other drug‑repackaging paraphernalia, such as resealable plastic bags found at the premises; second, DD1 (which was seized outside the premises) were in the same form and state as DD2 (which was seized inside the premises), namely, bricks or blocks as opposed to powders packaged in small packets. Bearing in mind that both DD1 and DD2 were collected by D1 from Mr Wong, there is nothing on the facts of this case to indicate that D1 was involved in the further processing of the drugs in the sense of adulterating or repackaging them in his premises. This is the extent I find of D1’s involvement.

As to D2’s role and culpability, on the facts before me, I accept the submissions of Mr Cheung that he was a mere courier. As submitted by Mr Cheung, whilst D2 had admitted in the cautioned video-recorded interview that he was instructed by KK to collect DD1 from D1 and then deliver DD1 to two customers, there is no evidence that D2 had actually delivered DD1 to any customers. Indeed, D2 was arrested immediately after he had collected the drugs from D1. As such, I find that D2’s role fell short of actual or direct trafficking in the sense of further dissemination on the streets.

Step 3 : Starting Point for Sentence

The third step involves identifying the starting point for sentence by pinpointing where the defendant comes within the relevant guideline band.

On behalf of D1, Ms Lee relied on HKSAR v Sum Ka Wa [2024] 4 HKLRD 777 and R v Ng Muk Kam CACC 685/1993, unreported, 31 May 1995, and advocated for a sentence of 33 years. Given the amount of cocaine involved in this case, namely, 35.929 kilogrammes, I find a starting point of 33 years, as suggested by Ms Lee, to be appropriate for D1 in the circumstances, taking into account the revised guideline in Huang Ruifang as well.

On behalf of D2, Mr Cheung submitted that according to a strict arithmetic calculation, the proper sentence for trafficking in 1.637 kilogrammes of cocaine would be one of 20 years and 1 month. That is 241 months. I find such a starting point appropriate for D2.

Step 4: Aggravating Factors

For the fourth step, I am required to consider whether there are any aggravating factors which would warrant an enhancement of sentence. On the facts before me, I find none for both D1 and D2.

I note that D1 has a previous drug-related conviction, namely, possession of dangerous drugs, for which he was fined $2,000 in 2011. However, given that that last conviction was some 14 years ago and was for simple possession as opposed to trafficking, and bearing in mind the Court of Appeal’s observation in HKSAR v Wan Wai Lun [2018] 1 HKLRD 1022 at paragraphs 8 and 19, D1’s previous conviction does not, in my view, require any enhancement of his sentence for trafficking in dangerous drugs.

Step 5 : Mitigating Factors

For the fifth step, I must take into account the mitigating factors in favour of D1 and D2, which would require a reduction in sentence.

The main mitigating factor for both D1 and D2 is their timely and early guilty plea, for which I am prepared to give them the full one-third discount in accordance with the principles set out in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 at paragraph 211.

In respect of D1, apart from the one-third discount, Ms Lee submitted that he should be granted an additional discount for his alleged genuine attempt to assist the authority. It was argued by Ms Lee that D1 had volunteered the truth to the police right from the time of his arrest. Further, D1 had subsequently provided two non-prejudicial statements to the police; the first on 11 November 2022 and the second on 3 June 2024.

By a confidential report prepared by the authority dated 24 December 2024, I was informed that the police considered the information given by D1 to be “of no practical use” to the authority.

Nevertheless, Ms Lee took issue with the police’s assessment and conclusion. She referred to the observation by the Court of Appeal in HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516 at paragraph 95, that the assessment of the assistance rendered by a defendant should be evaluated on the basis of whether it was “of practical use”, and such assessment should not be limited to whether it leads to “a tangible result”, such as a successful arrest or prosecution, which would be far too restrictive in the context of criminal intelligence or investigation. Instead, argued Ms Lee, “of practical use” would include the type of information which “could potentially assist or had actually assisted the authorities”.

Furthermore, Ms Lee made reference to HKSAR v Lo Sze Tung Stephanie [2018] HKCA 421 which reiterates the relevant factors for deciding whether the assistance rendered by the defendant to the authorities merits any discount. Ms Lee referred to paragraph 56 of the judgment of Lo Sze Tung in which the observation of Mr Justice Bokhary JA, as he then was, in R v Yan Im Kun [1997] 4 HKC 339 was quoted. Thus:

“Where there is more than one accused, that each of them should have an incentive to be the first to plead guilty and offer to give evidence against the other or others is a very good thing. Whatever may be said about the rat race, the courts should give criminals every incentive to enter a race to rat, so to speak.”

It should be noted that Yan Im Kun concerned a defendant who had offered to testify for the prosecution, but later did not do so as the co-accused all pleaded guilty.

Having carefully considered Ms Lee’s submissions and the relevant authorities, I am not satisfied that there is any basis for me to allow D1 any additional discount for his alleged assistance to the authority. In this regard, I have borne in mind the relevant principles that should be taken into account when dealing, in mitigation, with the assistance said to have been provided by a defendant to the police. These have been summarised succinctly at paragraph 100 of Yeung Hoi Ting.

Suffice it to say that the assessment made by the police of the information provided by D1, contained in the confidential report, was done at the request of D1 and on his behalf. As such, he is bound by the assessment. If D1 does not agree with what is stated in the confidential report which concludes that the assistance provided by him was “of no practical use”, he can choose not to rely on it. However, if D1 chooses not to rely on it, then the sentencing court is unlikely to, and this court will not in this instance, accept his bare assertion as to the assistance he has provided or that his assistance warrants an additional discount.

In any event, a sentencing court is not normally the forum for any dispute about the extent of the assistance provided to the authority or the authority’s assessment of the value of that assistance. This means D1 will not normally be able to challenge the contents of the confidential report before this court. As observed by the Court of Appeal in HKSAR v X [2024] HKCA 1168 at paragraph 19:

“When a defendant provides assistance to a law enforcement authority, it is for the authority to determine whether or not the assistance is of practical use. If the authority forms the view that the information or assistance is of no practical use and the prosecuting authority agrees with this view, unless the papers clearly suggest to the contrary, that should normally be the end of the matter. It is not for the courts to become embroiled in endless debates or futile wrangling between the defence and the prosecution about how the information or assistance should be treated or regarded. It is only in exceptional circumstances that a sentencing court will become involved in a dispute regarding the assistance that a defendant has rendered to the authorities, where it can be shown that there was an issue of bad faith on the part of the authority or the evidence strongly suggests an entirely different view of the assistance rendered by the defendant...”

What is clear from the authorities is that the police have an important responsibility in ensuring that the views they provide to a sentencing court on the assessment of the purported assistance given by a defendant is complete and accurate. Besides, the prosecuting counsel should ensure that there has been proper and strict adherence to the relevant principles and procedure, and that the information submitted is complete, accurate, and can be appropriately relied upon by the sentencing court. In my view, there is nothing in this case to indicate that the prosecution has fallen short of what is required of it by the authorities in discharging its duty in this respect.

Of course, in exceptional circumstances, it is open to a sentencing court to address any issue of bad faith on the part of the police or to come to a different view of D1’s purported assistance to the police if the evidence suggests otherwise.

Ms Lee has rightly disavowed any allegation of bad faith on the part of the police. Further, there is no such evidence before me, and I find no reason to question the police or the prosecution’s assessment of the value of the assistance purportedly given by D1.

On this issue of assistance, Ms Lee went further to submit that D1 had genuinely attempted to assist the authorities. In this regard, as a general proposition, it has been held that a defendant’s useful assistance to the authorities should be recognised in mitigation and reflected in an appropriate discount to his sentence as a form of encouragement to inform on others in order to prevent, detect and prosecute crime.

That said, as consistently held in cases such as HKSAR v Baljit Singh [2020] 4 HKLRD 598 at paragraphs 41, 61 and 62, and HKSAR v Ho Tak Kuen [2024] 4 HKLRD 369 at paragraph 19, the courts must guard against the manipulation of the sentencing process by a defendant. Further, such manipulation could neutralise or negate the assistance that a defendant has offered and should be reflected in any discounts that should be given.

As observed by the Court of Appeal in Baljit Singh, if an offender reneges on the promise of assistance or undermines the assistance rendered, these are matters that can properly be taken into account when determining the final sentence to be passed on the offender. In practice, this means the offender will lose any reduction that he would otherwise have received if he kept his promise and assisted the authorities. In Ho Tak Kuen, the Court of Appeal similarly stated that resiling from testifying in accordance with an offender’s non-prejudicial statement is reprehensible conduct and should be discouraged.

In this case, D1 indicated, both personally and through his solicitors, that, contrary to what he had stated in the two non-prejudicial statements, he was no longer willing to provide any further non-prejudicial statement or testify against Mr Wong in August 2024. This was noted in the confidential report and confirmed by Ms Lee on behalf of D1. Accordingly, the court is entitled to take into account this factor of D1’s reneging on the promise of assistance, which can be regarded as neutralising or negating any assistance that he might have provided.

Accordingly, no additional discount should be granted to D1 on account of his alleged genuine attempt to assist the authorities. Apart from his timely and early guilty plea, I find no other mitigating factors which would require a further reduction of sentence. After applying the one-third discount given for D1’s early plea, his sentence would be brought down to 22 years.

In respect of D2, after applying the one-third discount given for his timely and early guilty plea, his sentence would be brought down to 13 years and 4 months. That is a rounded-down figure from 160 months.

Mr Cheung further submitted in mitigation that D2 has been suffering from polio and has a risk of cancer reoccurrence. Additionally, D2 requires an orthosis to walk. Whilst the authorities speak consistently that a defendant’s personal circumstances carry little weight in mitigation. I am, prepared to take into account the disabilities suffered by D2 and allow a 2-months discount for the myriads of medical and terminal illnesses suffered by D2, in addition to the one-third discount that he is entitled to for his guilty plea. After deducting 2 months, his sentence would be reduced to 13 years and 2 months.

Step 6 : Overall Sentence

The final step requires me to step back and look at the overall sentence to make sure that it is fair, just and balanced.

Having considered all the circumstances, I take the view that the ultimate sentence of 22 years for the two counts against D1 and the ultimate sentence of 13 years and 2 months for the 1st count against D2 are just and proportionate to the criminalities involved.

D1, please stand up. I should pass an individual sentence for each charge. For Charge 1, on the quantity of cocaine involved, you are sentenced to 13 years and 4 months. For Charge 2, on the quantity of cocaine involved, you are sentenced to 21 years and 4 months. I would order 8 months of the sentence for Charge 1 to be served consecutively to the sentence for Charge 2, resulting in a total sentence of 22 years’ imprisonment for both charges.

D2, please stand up. For Charge 1, on the quantity of cocaine involved, I sentence you to 13 years and 2 months’ imprisonment.