HKSAR v. Lui Siu Hei

HCCC 54/2025

[2025] HKCFI 3472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 54 OF 2025

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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. Minnie Wat and was committed, on 13^th February 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 31^st July, 2023, at the lobby, Ground Floor, The Amused, No. 538 Fuk Wing Street, Cheung Sha Wan, unlawfully trafficked in a dangerous drug, namely one kilogramme of a solid, in the form of a block, containing 816 grammes of cocaine.

3.Particulars of count 2 are that he on the same day as count 1, at Flat A, 20^th floor the same building in count 1, unlawfully trafficked in dangerous drugs, namely 61.87 grammes of a solid containing 27.01 grammes of cocaine, 6.81 grammes of a solid containing 5.90 grammes of ketamine and 14.71 grammes of cannabis in herbal form.

FACTS

4.On 28^th July 2023, the defendant was seen by Customs officers acting furtively and entering The Amused.  He was seen via CCTV camera feed to have gone to the 20^th floor of the building.  

5.On 31^st July, at about 2:35pm, Customs officers saw the defendant in Cheung Sha Wan, this time carrying a black plastic bag.  He was seen to have met up with a Mr. Leung, and then they entered The Amused together.

6.Customs officers intercepted them at the lobby of the building and conducted separate searches on them.  The black plastic bag that the defendant was carrying contained one packet which had a 1kg solid block inside.  Subsequent examination confirmed its narcotic content of 816g of cocaine.  

7.The defendant was arrested and admitted under caution that the cocaine was his and that he was receiving calls to distribute to others for a reward of HK$3,000 per block.  The defendant told the officers that the key they found on him was for the door to Flat 20A in the building.  

8.Nothing suspicious was found from the said Mr. Leung.

9.The defendant and Mr. Leung were, nevertheless, both escorted to Flat 20A and Customs officers used one of the keys found on the defendant to unlock the door and entered.  Upon search, from a bedside drawer, the dangerous drugs as particularized in count 2, together with a sealing machine, bundles of Ziplock bags, two electronic scales and a hammer were found.

10.The defendant admitted under caution that all the items belonged to him and that he had used the tools to repackage drugs in the flat.  

11.The landlord of Flat 20A confirmed that the defendant and Mr. Leung rented the flat together at $15,000 per month, with the lease beginning on 15^th July 2022, running for 2 years.

12.The estimated street values of all the seized dangerous drugs in the month of the offences were:

a) Cocaine: HK$1,141,510.25 (at HK$1,075/g);

b) Ketamine: HK$3,595.68 (at HK$528/ g); and

c) Herbal cannabis: HK$3,427.43 (at HK$233/g).

13.By his admission to the Summary of Facts, the defendant had accepted that he was in possession of all the seized dangerous drugs for the purpose of unlawfully trafficking in them.

PREVIOUS CONVICTION

14.The defendant was of clear record in Hong Kong.

BACKGROUND AND MITIGATION

15.The defendant was born in December 1998 and is 26.  He received education up to Form 6 level.  His father is 59 and suffers from stage 2 colon cancer.  The defendant’s mother passed away in 2013.  He has one elder sister who is 30 years old.  

16.The defendant has been a licensed estate agent since he was 16.  He had also worked as renovation and storage worker.

17.The defendant in his mitigation letter tells the court how his mother passed away when he was in Form 3, causing him to feel the pain of losing a beloved person, which never quite left him.  He lost his paternal grandfather as well a few years later, making him afraid that he was losing all those he loved.  

18.The defendant tried his best and worked hard to support the family.  Under pressure and depressed, he made the mistake of committing the present offences for quick money.  

19.While in remand, he realized that there is no shortcut in life.  He blames himself for making his sick father worry about him.  He will be applying for courses once he has been sentenced and hope to gain some knowledge that he will be able to use upon release.  He hopes to be able to look after his father and elder sister and make amends for his mistake.

20.The defendant’s elder sister also wrote, telling the court how their family has always been under financial pressure and mental anguish as a result of the loss of their mother and their father falling sick.  She speaks of how the defendant has always been a gentle, caring young person.  Hard working with a strong sense of responsibility.  She believes the defendant committed the offences not out of greed but out of his eagerness to find a way out for the family.  Ms. Lui promises to support and help her brother to reintegrate into society after his release.

21.The defendant’s father talks about how after losing his wife he had to focus on providing for the family, working long hours on construction sites, causing him to overlook the need for parental guidance for his children.  When he was diagnosed with colon cancer and heart problems, he was no longer able to work and the defendant has found it very hard seeing him struggling with his health and medical expenses.  The defendant, being young and simple, and under the influence of bad peers, broke the law hoping to bring a quick fix for the family situation.  

22.Mr. Lui seeks leniency for his son and he is certain that, if given the chance, the defendant will be able to contribute to society upon release.  He will do his utmost best to assist in his rehabilitation, always supporting him so he can stand tall and move on in life.  

SENTENCING

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

24.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 in the bag and the drugs in that flat are directly connected, the starting point will be decided based on the combined quantity of drugs foundfrom the two locations[2].

25.Given the small quantity of the herbal cannabis, I will exclude it from my consideration of sentence since it will have no impact on the ultimate sentence.  It is, however, an aggravating factor in trafficking in more than one type of dangerous drugs, and this will be taken into consideration when setting the enhancement level.  

APPLYING HERRY JANE YUSUPH

26.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] , and the sentencing guidelines for cocaine as updated in the case of HKSAR v Huang Ruifang [2025] HKCA 234, as well as the guidelines for trafficking in ketamine in HKSAR v Hii Siew Cheng [2009] 1 HKLRD are applied as follows.

Step 1: The applicable guideline tariff bands

27.For the 816g and 27.01g of cocaine in count 1 and 2, the applicable bands are “16 to 20 years” and “5 to 8 years” respectively.

28.For the combined quantity of 843.01g of cocaine, the guideline tariff band is “16 to 20 years”.

29.For the 5.9g of ketamine, the guideline tariff band is “2 to 4 years”.

Step 2: The defendant’s role and culpability

30.As admitted by the defendant, he was engaged in the re-packaging and direct distribution of the dangerous drugs, as such his culpability is higher than that of a mere courier or storekeeper, and the sentence will need to reflect this fact.

Step 3: The relevant band within the guidelines

31.Since 2 different types of dangerous drugs were trafficked, I adopt the combined approach as propounded in HKSAR v Yip Wai Yin [2004] 3 HKC 367.  I have applied the absurdity, conversion and ratio tests as used in HKSAR v Chan Yuk Leong CACC 318/2013 to assist me in arriving at the correct starting point.  These tests have not taken into account the defendant’s higher culpability, and are based on an arithmetical application of the guideline sentences.  

ABSURDITY TEST

32.On the basis of all narcotics being the more potent drug of cocaine, any combined starting point above 17 years 5 months, before enhancement for any aggravating factor, would be regarded as absurdly high.  

CONVERSION TEST

33.If the ketamine is converted into the quantity of cocaine that would yield the equivalent sentence, the total converted quantity of cocaine would become 846.64g, which would have a notional starting point of 17 years 4 month

RATIO TEST

34.Based on the proportion of the different drugs involved, the sentence should be about 17 years 4 months.

THE COMBINED NOTIONAL STARTING POINT

35.Having regard to the above test results, taking into consideration the defendant’s role and culpability, I will adopt a combined starting point of 17 years 4 months’ imprisonment, and then enhance it by 8 months for the defendant’s added culpability, taking it up to 18 years.

Step 4: Aggravating factors

36.As mentioned above, trafficking in more than one variety of dangerous drugs is an aggravating factor, because the trafficker will be able to cater to a wider market[5]. Given the quantity involved, I will enhance the sentence by 3 months, taking the combined notional starting point to 18 years 3 months.

Step 5: Mitigating factors

37.The only mitigating factor is the defendant’s timely guilty pleas, for which he will be given the usual one-third discount.  

38.I will just add that, although I do sympathize with the defendant’s family situation, it is trite law that in offences as serious as the ones committed by the defendant here, his personal circumstances pale into insignificance as mitigating factors, as stressed by the Court of Appeal in the case of HKSAR v Lkhaijav Bayanmunkh [2012] 2 HKC 233; CACC 320/2011:

“…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. Should it do so the courts are at risk of creating a group that drug traffickers can target for exploitation precisely because it is known that such persons will be treated more leniently.”

Step 6: Totality

39.Taking a step back, I find the sentence fair, just and balanced.

FINAL SENTENCE

40.The combined sentence for all the dangerous drugs in the two counts after plea is 12 years 2 months.

41.To achieve this sentence, I sentence the defendant to 12 years’ imprisonment on count 1 after plea, 4 years 8 months’ imprisonment on count 2 after plea, and I order 2 months of the sentence in count 2 to be served consecutively to the 12 years sentence in count 1, leading to a sentence of 12 years 2 months after plea for the two counts.

Mr. Raymond CHAN, PP of Department of Justice, for the Prosecution/ HKSAR

Mr. Kevin CHAN, instructed by Messrs. Morley Chow Seto, assigned by D.L.A. for the defendant