HKSAR v. Sham Ho Yin

HCCC 12/2025

[2025] HKCFI 5450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 12 OF 2025

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 counts of trafficking in a dangerous drug[1] and one count of possession of a dangerous drug[2] before Magistrate Ms. Minnie Wat and was committed, on 9 January 2025, to the Court of First Instance for sentence. He confirmed his pleas and admission to the Summary of Facts before me, and his convictions were duly recorded.

2.Particulars of count 1 are that, the defendant on the 22 September 2022, outside Room 109 at DD118, Lot No. 2230 RP, No. 135 Sung Shan New Village, Yuen Long, New Territories, in Hong Kong, unlawfully trafficked in 21.3 grammes of a solid containing 16.1 grammes of ketamine.

3.Particulars of count 2 are that he, on the same day as count 1, at Room 109 as particularized in count 1, unlawfully trafficked in 1,539.24 grammes of a solid containing 1,097.86 grammes of ketamine.

4.Particulars of count 3 are that he, on the same day as counts 1 and 2, at a carpark at Yau Chuen Street, Yuen Long, New Territories, in Hong Kong, had in his possession 2.17 grammes of a solid containing 1.60 grammes of ketamine.

FACTS

5.The defendant was intercepted by observing police officers in the afternoon of 22 September 2022 when he walked out of the metal gate outside a temporary building at Sung Shan New Village towards a nearby light goods vehicle, which was later found to have been purchased by the defendant.

6.Upon search, 30 plastic bags containing the ketamine in count 1 were found on his person, together with 4 other empty plastic bags that were not examined.  The defendant claimed that the drugs were for his self-consumption.

7.He was then brought to Room 109, where large and small packets of suspected dangerous drugs, a heat sealing machine, electronic scales and packing materials were found in the living room.  Upon arrest and under caution, the defendant admitted to packaging the dangerous drugs into smaller packets there.

8.Room 109 was sparsely decorated with bags and packaging material scattered all over the floor.  Several plastic basins containing ketamine and a plastic spoon, 2 electronic scales, banknotes, scissors, marker and a plastic sealer were found on a foldable table.  Numerous small re-sealable plastic bags containing ketamine were placed in a paper tray and in the drawer of the foldable table.  There was also a larger plastic bag of ketamine.  All the drugs particularized in count 2 were found inside Room 109.

9.The key to a Honda vehicle was found from the light goods vehicle that was parked outside Room 109.  The defendant told the police officers that the Honda was parked at the location in count 3.

10.The Honda was located and the drugs in count 3 were found from the front passenger seat glove compartment.  The defendant claimed that the 3 plastic bags of ketamine were for his self-consumption.  

11.In the subsequent video recorded interview, the defendant claimed that he bought the light goods vehicle from an unknown male for $10,000 in early September 2022.  Police investigation revealed that the vehicle was handed over to the defendant upon payment of a $5,000 deposit for a 1 month test drive period.

12.In relation to the renting of Room 109, it was found that the defendant visited the estate agent on 1 November 2021 to look for a flat, and visited Room 109 on 31 December 2021 to view the room, which was later rented out to the defendant for the period 5 January 2022 to 4 March 2022 at $4,000 per month.  The defendant had been paying the monthly rental by cash or via online FPS payments.

13.The defendant had also rented a monthly car parking space for the light goods vehicle at $1,600.

14.The estimated street value of all the ketamine seized was HK$649,308.80.

PREVIOUS CONVICTIONS

15.The defendant was convicted of possession of dangerous drugs and driving under the influence of drinks or drugs in June 2011.  He was given a concurrent 2-month suspended sentence and fined $2,000, together with the imposition of a 24-month driving disqualification order.

16.He was in breach of that suspended sentence when he was convicted for possession of dangerous drugs again in August 2012.  A two-month sentence was imposed on top of the activated suspended sentence.  

BACKGROUND AND MITIGATION

17.The defendant was born in September 1990 and is 35 years old.  He was educated up to secondary 5 level and was working as an air-conditioning technician.  

18.At the time of the offence, the defendant was living with his girlfriend and their daughter in Yuen Long.  Their second child, a son, was born in March 2023.  

19.Mr. Lin, counsel for the defendant, informs the court that the defendant has been a habitual ketamine user for 10 years.  

20.Deacon Peter Wong wrote in mitigation, informing the court that he has observed in the defendant true remorse and a willingness to reform.

SENTENCING

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

22.Although the drugs in count 1 and 2 were found at two locations, which led to the prosecution laying two separate trafficking charges, given the fact that the defendant’s possession of the drugs outside and inside Room 109 must have been connected, the starting point will be decided based on the combined quantity of drugs found[3].

APPLYING HERRY JANE YUSUPH

23.The guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[4], as read in conjunction with HKSAR v Lee Ming Ho[5] are applied as follows.

Step 1: The applicable guideline tariff bands

24.The sentencing guidelines for trafficking in ketamine in the cases of Secretary of Justice v Hii Siew Cheng [2009]1 HKLRD 1 and HKSAR v Sin Chung Kin (單松健) [2013]1HKLRD 627 are applied.

25.The applicable bands for 16.1g, 1,097.86g of ketamine are, respectively, “4 to 6 years” and “14 to 18 years”.

26.For the combined quantity of 1,113.96g, the tariff band is also “14 to 18 years”.

Step 2: The defendant’s role and culpability

27.The defendant had rented the room, with a car parking space nearby, and had admitted to packaging the drugs in the room.  His role is that of a courier and packager.  His culpability is increased based on his active participation in the trafficking arrangements.  His sentence should, therefore, be higher than that of a simple courier or storekeeper.  Mr. Lin, counsel for the defendant, accepts that the defendant should be classified as an actual or direct trafficker, but submits that there is no evidence to place him in the category of operator or financial controller.

Step 3: The relevant band within the guidelines

28.An arithmetical application of the guideline tariff for 1,113.96g of ketamine would lead to a starting point of 14 years 5 months’ imprisonment, which would be the starting point for a simple courier.

29.Given the defendant’s more important role and higher culpability, I find that a proper starting point should be 15 years’ imprisonment, being a 7- month enhancement, for the global quantity of ketamine.

Step 4: Aggravating factors

30.Although the defendant has 2 previous drug related convictions, given the fact they were for simple possession and were recorded over 10 years ago, I will not enhance his sentences on the basis of his previous convictions.

Step 5: Mitigating factors

31.The only mitigating factor is the defendant’s timely pleas.

Step 6: Totality

32.I have looked at the combined notional sentence after trial of 15 years, and I am of the view that it is a fair, just and balanced sentence in the circumstances of the offences and the defendant.

FINAL SENTENCE FOR COUNTS 1 AND 2

33.The global sentence for the two counts after plea is, therefore, 10 years’ imprisonment.

34.To achieve this global sentence, in relation to count 1, I sentence the defendant to 40 months after plea, in relation to count 2, to 10 years after plea.  I order the sentences to be served concurrently, leading to the sentence of 10 years after plea for counts 1 and 2.  

COUNT 3: POSSESSION OF 1.6G OF KETAMINE

35.The maximum sentence on conviction upon indictment for simple possession of dangerous drugs is that of 7 years’ imprisonment and a fine of $1 million.

36.As Mr. Lin points out in his submissions, the starting point for a quantity of dangerous drug that a genuine user might have in his possession should be in the range of 12 to 18 months’ imprisonment.

37.This is the defendant’s third conviction for possession of dangerous drugs.  I find that a term of imprisonment is necessary.  Since the defendant is being sentenced to a term of imprisonment of more than 9 months on the same occasion, there is no need to call for a Drug Addiction Treatment Centre report before imposing a term of imprisonment[6].

38.Considering the quantity of ketamine involved, I will adopt a starting point of 12 months’ imprisonment, which is discounted to 8 months after plea.  

TOTALITY

39.Taking into consideration the lengthy sentence that the defendant is already facing, I will order this sentence to be served wholly concurrently to the sentences in counts 1 and 2.  

FINAL SENTENCE

40.For the 3 counts, the defendant is sentenced to a total of 10 years’ imprisonment.  

Mr. Marcus LEE, SPP of Department of Justice, for the Prosecution/ HKSAR

Mr. Jonathan LIN, instructed by Messrs. Hastings & Co., assigned by D.L.A. for the defendant