HKSAR v. Li Kai Hung

HCCC 134/2025

[2025] HKCFI 6411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 134 OF 2025

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in dangerous drugs[1] before Magistrate Ms. Frances Leung, admitted to the Summary of Facts and was committed, on 14^th April 2025, to the Court of First Instance for sentence. He confirmed his plea and admission before me and the conviction was duly recorded.

2.Particulars of the charge are that the defendant on 16^th October, 2022, at near Lamppost FB8205, Yu Tung Road, Tung Chung, Lantau Island, New Territories, together with LEE Simona, unlawfully trafficked in dangerous drugs, namely 34.9 grammes of a solid containing 28.5 grammes of ketamine and 53.69 grammes of a solid containing 36.24 grammes of cocaine.

FACTS

3.The defendant was the driver of private vehicle XM 4009 when it was stopped at a police road block near lamp post FB8205 on Lantau Island at around 8:50pm on 16^th October 2022.  Simona LEE was the only passenger, sitting in front.  The defendant was disqualified from holding a driving licence at the time.

4.Upon search of the vehicle, 3 different plastic bags were found on the floor of the right rear passenger seat, each containing 41, 60 and 3 plastic bags respectively, which, in turn, contained most of the ketamine and cocaine particularized in the charge.  There was another plastic bag in the glove compartment, which had 38 plastic bags inside, containing the remaining cocaine.  

5.In addition to the mobile phone in the central console, another phone was found on the defendant, together with cash of $1,806.70.  Simona LEE had on her, among other things, $27,226.90, RMB100, two iPhones and 3 SIM cards.

6.In October 2022, the average retail price of ketamine was HK$642 per gramme whereas that of cocaine powder was HK$863 per gramme, and that of crack cocaine was HIK$1,682 per gramme.  The drugs seized could have been sold at street level for HK$68,740 (powder cocaine)  or HK$112,713 (crack cocaine).

7.By his admission to the Summary of Facts, the defendant had admitted and accepted that at all material times, he, together with Simona LEE, knowingly possessed the drugs seized for the purpose of unlawful trafficking.

PREVIOUS CONVICTION

8.The defendant has one set of convictions for driving while disqualified, using a motor vehicle without third party insurance, and failing to comply with traffic signs or road markings, all dated 31^st March 2023.  He was sentenced to 3 months’ imprisonment for the driving while disqualified offence, suspended for 2 years, and fined for the other two offences.  He was further disqualified from holding a driving licence for 12 months.  

9.The prosecution had confirmed that the defendant was of clear record, and had not been put on bail when he committed the present offence.

BACKGROUND AND MITIGATION

10.The defendant was born in Chinese mainland in September 1997 and is 28 years old.  He moved to Hong Kong in 2008 and was educated here up to Form 3 level.  He was working as a delivery worker at the time of the offence.

11.Mr. Victor Ho, counsel for the defendant, informs the court that the defendant’s instructions are that the dangerous drugs were to be delivered to someone in Tung Chung on the night of his arrest, and that he was not the mastermind nor the organizer behind the trafficking operation.  He was a simple courier yet to receive his payment for the intended delivery.  

12.The defendant wrote in mitigation.  He blames his association with the wrong group of friends and his desire to make some quick money as the reasons behind his committing the offence.  He is deeply remorseful.  His parents have been most supportive of him during this ordeal and the defendant does not want to disappoint them anymore.  He will work hard to contribute to society upon release, be down to earth and not re-offend.  

13.The defendant’s father wrote on behalf of himself and the defendant’s mother.  They are deeply distressed and remorseful.  The defendant had all along been a filial son and had chosen to start work early in order to lighten their burden.  Unfortunately, he had trusted the wrong people, which led to his criminal activities.  They hope the defendant will realize now that there are no shortcuts in life, and trust that their hardworking son will communicate with them more in future.  They await his return to their side as soon as possible.

SENTENCING

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

15.The sentencing approach and tariff bands as 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 are applied as follows.  It is not disputed that the updated guidelines in Huang Ruifang are applicable despite the fact that the offence was committed before they were laid down[2].

Step 1: The applicable guideline tariff bands

16.For the 28.5g of ketamine and 36.24g of cocaine, the respective bands are “4 to 6 years” and “5 to 8 years”.

Step 2: The defendant’s role and culpability

17.Based on the contents of the Summary of Facts, there can be two different inferences.  One is that the defendant was a direct trafficker and he was driving around making deliveries to the buyers.  The other inference is that, since all the plastic bags with drugs inside were put inside 4 plastic bags, the defendant could have been delivering all the drugs to someone else to deal with further, and he might not have been a direct trafficker.  

18.There being two reasonable inferences, the defendant is to be sentenced on the one that is favorable to him, that is to say, that he was operating as a courier.

Step 3: The relevant band within the guidelines

19.Based on my finding of the defendant’s role and culpability, the corresponding notional starting points for the ketamine and cocaine are, respectively, 4 years 11 months and 6 years 11 months.

20.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 appropriate starting point.  

ABSURDITY TEST

21.If all 64.74g of the narcotics were the more potent drug of cocaine, the resulting combined starting point would be 8 years 4 months.  A starting point higher than this could be regarded as absurdly high.  

CONVERSION TEST

22.Converting the ketamine into the more potent drug of cocaine that would yield the equivalent sentence of 4 years 11 months, the total converted quantity of cocaine would be 45.99g, which would have a notional starting point of 7 years 8 months.

RATIO TEST

23.Based on the proportion of the different drugs involved, the sentence should be about 7 years 5 months.

THE COMBINED NOTIONAL STARTING POINT

24.Having regard to the above test results, taking into consideration the defendant’s role and culpability as a courier, I will adopt a combined starting point of 7 years 8 months’ imprisonment.

Step 4: Aggravating factors

25.It is trite law that trafficking in more than one variety of dangerous drugs is an aggravating factor since to do so would allow the traffickers to cater to a wider market[3]. Given the quantities involved, I will enhance the sentence by 4 months, taking the combined starting point to 8 years.

Step 5: Mitigating factors

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

Step 6: Totality

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

FINAL SENTENCE

28.The final sentence is, therefore, 5 years 4 months after plea.  

Mr. NG Wing-kit, SPP of Department of Justice, for the Prosecution/ HKSAR

Mr. Victor HO, instructed by Messrs. Cheung & Liu, assigned by D.L.A. for the defendant