HKSAR v. Chan Yau Chuen

HCCC 450/2024

[2025] HKCFI 5449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 450 OF 2024

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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] before Magistrate Ms. Minnie Wat and was committed, on 30 December 2024, 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 13 June, 2023, at the lift lobby of 4^th Floor, West Block, Peony House, No. 12 Foo Kwai Street, Tai Kok Tsui, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 251.43 grammes of a solid containing 214.93 grammes of ketamine.

3.Particulars of count 2 are that he, on the same day, at Room 410B, 4^th Floor, West Block, Peony House, No. 12 Foo Kwai Street, Tai Kok Tsui, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 4,478.83 grammes of a solid containing 3,767.24 grammes of ketamine.

FACTS

4.The defendant was seen leaving Room 410B of Peony House at around 05:07am on 13 June 2023 by police officers on an anti-narcotics operation.  Upon interception at the 4^th floor lift lobby, 3 transparent re-sealable plastic bags that contained the drugs as particularized in count 1 were found inside the defendant’s sling bag.  

5.The defendant was arrested and said under caution that he was following instructions to deliver the drugs to earn some quick money.  He was then taken to outside Room 410B and the police used a key found on the defendant to gain entry to the room.  

6.The search warrant for Room 410B was executed, and 18 zipper bags containing a total of 36 resealable plastic bags containing the drugs as particularized in count 2 were found therein.

7.The defendant was arrested again, and said under caution that all the ketamine belonged to him and were for earning money.  

8.In the subsequent video recorded interview, the defendant claimed that he owned all the drugs, and that he had rented Room 410B for $11,000 per month and had been living there for 20 days as at the day of his arrest.  

9.He claimed that someone offered him a few thousand dollars for every delivery of ketamine.  He would receive delivery instructions over the phone from an unknown male.  He was waiting for instructions to deliver the drugs in his sling bag when he was stopped by the police.  The ketamine in this case were received by him about one or two days before the arrest at a refuse collection point in Tin Shui Wai. The defendant also claimed that he was responsible for weighing and packing the ketamine for delivery.  

10.The estimated total street value of all the drugs was $2,042,853.21.

PREVIOUS CONVICTION

11.The defendant was of clear record.

BACKGROUND AND MITIGATION

12.The defendant was born in April 1985 and is 40 years old.  He used to live with his parents and 3 younger brothers in a flat purchased under the Home Ownership Scheme in the Sham Shui Po district.  Upon completion of secondary education in around 2001, he worked as a salesperson of electrical and electronic products for over 10 years, and later moved on to work as a promoter of electrical products, earning on average $35,000 per month.

13.The defendant is the father of a pair of twins.  He and their mother cohabitated in her flat and they planned to be married but was not able to do so because of the COVID-19 pandemic.  

14.The defendant lost his job in 2021 as a result of the economic downturn caused by the pandemic.  He had to borrow $300,000 from a financial company for the family’s expenses.  He worked as part-time scaffolder and decoration worker to try to make ends meet but since he lacked experience, work was hard to come by.

15.Despite his best effort, the defendant was not able to repay the debt and was declared bankrupt in December 2022.  He was only allowed to retain $7,000 per month from his income.  

16.The defendant and his cohabitee separated and he moved out of the Ma On Shan flat while the twins remained there with their mother.

17.In order to make quick money the defendant decided to deliver drugs.  To avoid his family finding out about his dealings, the defendant rented Room 410B.  He had moved in about 20 odd days before his arrest.  

18.The defendant wrote in mitigation and is remorseful for what he had done.  He gave full details of his trafficking upon arrest, and had pleaded guilty at the earliest opportunity.  

SENTENCING

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

20.Although the drugs were found at two locations, which led to the prosecution laying two charges, given the fact that it is obvious that the defendant’s possession of the drugs inside his sling bag, and the drugs in Room 410B are directly connected, the starting point will be decided based on the combined quantity of drugs found[2].

APPLYING HERRY JANE YUSUPH

21.The guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[3], as read in conjunction with HKSAR v Lee Ming Ho[4] are applied as follows.

Step 1: The applicable guideline tariff bands

22.The sentencing guidelines for trafficking in ketamine in the case 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.

23.For the 214.93g and 3,767.24g of ketamine in count 1 and 2, the applicable bands are “6 to 9 years” and “20 years upwards” respectively.

24.For the combined quantity of 3,982.17g, the guideline tariff band is “20 years upwards”.

Step 2: The defendant’s role and culpability

25.The defendant rented Room 410B.  He was engaged in the weighing and packaging of the drugs to be delivered.  His role was more important and culpability higher than that of a simple courier or storekeeper.  

26.Ms. Cheng referred to the case of HKSAR v Chan Ho Sun HCCC 124/2020, where a starting point of 21 years was adopted for 4,267g of ketamine.

27.There the defendant was arrested after he collected a parcel from Malaysia containing the ketamine after its interception by Customs Officers.  He claimed to have been offered $3,500 to make the collection and to deliver it to someone else.  The defendant was 24, educated up to Form 4 level and had worked odd jobs since leaving school.  He was working as a renovation worker earning around $20,000 a month prior to his arrest.  Based on the guidelines in Sin Chung Kin, where the Court of Appeal stated that the appropriate starting points for trafficking in 2kg and 3kg of ketamine should be no less than imprisonment for 18 years and 20 years respectively, and where the ketamine involved was 5.12kg, a starting point of 21 years’ imprisonment was adopted in Chan Ho Sun.  Ms. Cheng relies on this case to suggest that a starting point lower than that of 21 years should be adopted in the present case.

28.Despite the lesser quantity in the present case, I find that here the defendant played a far more important role than the defendant in Chan Ho Sun.  He had rented Room 410B specifically for the purpose of trafficking in the drugs so that he can hide the trafficking from his family.  He was tasked with collecting the drugs and bringing them to the room, where he weighed and packaged them before delivering them on to others.  He was not a mere courier as Chan Ho Sun was.

29.Unlike Chan Ho Sun who was about 23 years old when he committed the offence, and Sin Chung Kin when he was 18 and a half years old, our defendant was 38 years old at the time of his commission of the offences, and had been working for over 20 years.  He had committed the offences with premeditation and planning.  I find that the defendant’s culpability far exceeds that of Chan Ho Sun.

Step 3: The relevant band within the guidelines

30.Exercising my sentencing discretion while bearing in mind the guidelines in Hii Siew Cheng and Sin Chung Kin, and having considered the defendant’s role and culpability, I find that a proper starting point is that of 22 years’ imprisonment.

31.Separately, for the 214.93g and 3,767.24g of ketamine in counts 1 and 2, I find the individual starting points should, respectively, be 7 years 11 months, and 21 years.

Step 4: Aggravating factors

32.There are no aggravating factors in the defendant’s commission of the offences.

Step 5: Mitigating factors

33.Despite the defendant’s unfortunate circumstances, it is well settled that in cases as serious as the present one, the offender’s personal circumstances is rendered irrelevant as mitigating factors.  I find that such is the case here, given the role the defendant had played in the trafficking.  

34.The only mitigating factor is, therefore, the defendant’s timely guilty pleas, for which he will be granted the full one-third discount.  

Step 6: Totality

35.I have looked at the combined notional sentence after trial of 22 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

36.The global sentence for the two counts after plea is, therefore, 176 months’ imprisonment, or 14 years 8 months.  

37.To achieve this global sentence, in relation to count 1, I sentence the defendant to 63 months after plea.  In relation to count 2, to 168 months after plea.  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 176 months after plea.  

Ms. Janice KWAN, SPP of Department of Justice, for the Prosecution/ HKSAR

Ms. Flora CHENG, instructed by Messrs. Tang & Lee, assigned by D.L.A. for the defendant