HKSAR v. Cheng Shu Fan

HCCC 186/2025

[2026] HKCFI 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 186 OF 2025

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REASONS FOR SENTENCE

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INTRODUCTION

1.The Defendant, CHENG Shu-fan (“D”), pleaded guilty to two counts of Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. In sentencing, I have considered the admitted Summary of Facts, the mitigation submissions, and the relevant authorities submitted by both parties. In determining the appropriate sentence, I adopt the structured six-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

FACTS

2.On 29 February 2024, police intercepted D at the lift lobby of G/F, King’s Building, No.293 Prince Edward Road West, Kowloon and found 0.61 grammes of cocaine concealed on his person (Count 1).  He admitted ownership.

3.A subsequent search of his residence on Flat B, 6/F of the same building revealed a substantial trafficking operation.  In his bedroom, police seized approximately 147.87 grammes of cocaine and 18.71 grammes of ketamine, along with extensive drug packaging paraphernalia including electronic scales, a heat sealer, and numerous transparent resealable plastic bags (Count 2).  D again admitted ownership of all items under caution.

4.In line with HKSAR v Wan Lau Mei [2014] 4 HKC 75, the two counts, arising from a single course of conduct on the same day, are to be treated as one occasion of possession of the total drug quantity for sentencing.  A concurrent sentence will be imposed on both counts.

Defendant’s background and Mitigations

5.D is now 22 years old and was 20 at the time of the offence. He has two previous conviction records. One “Trafficking in Dangerous Drugs” record for which he was sentenced to 42 months in the District Court. The last record was in 2024 when he was sentenced to 6 months in 2024 for “Possession of Dangerous Drugs”.

6.Defence counsel emphasized D’s extreme remorse and the fact that he committed the offences out of sheer stupidity and immaturity. D was determined to turn a new leaf and letters of mitigations were submitted in support of his lenient sentence.

Step 1: Identify the Relevant Guideline Band

7.The total drug quantity is 148.48 grammes of cocaine and 18.71 grammes of ketamine.

8.For cocaine, the applicable guideline is HKSAR v Huang Ruifang (No.3) [2025] 2 HKLRD 138.  A quantity of 148.48 grammes falls within the band of 50 to 200 grammes, which carries a starting point range of 8 to 12 years’ imprisonment.

9.For ketamine, the applicable guideline is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  A quantity of 18.71 grammes falls within the band of 10 to 50 grammes, which carries a starting point range of 4 to 6 years’ imprisonment.

Step 2: Assess the Defendant’s Role and Culpability

10.According to the presence of the exhibits seized by the police, D was clearly involved in packaging the drugs found at his residence.  There is no evidence that he was an organiser, financier, or international operator.  His role is that of a custodian and packager – storing a substantial commercial stock and actively preparing it for dissemination.  This places him within the category of a storekeeper, which is the baseline role upon which the sentencing guidelines are primarily based (Herry Jane Yusuph at §§58-61).  However, his active involvement in packaging, as admitted, indicates a role that is more integral than a passive custodian, therefore elevating his culpability within that category.

Step 3: Identify the Starting Point within the Band

11.In assessing the appropriate starting point for this cocktail of drugs, I have considered the helpful calculations provided by the parties, which applied the three cross-checking tests endorsed in HKSAR v Chan Yuk Leong (CACC 318/2013) to the total drug quantity:

(1) The Absurdity Test: Assuming the entire 167.19 grammes of solids contained only the more serious drug, cocaine, yields a calculated starting point of approximately 133.5 months (11 years and 1.5 months).

(2) The Conversion Test: Converting the ketamine to its cocaine equivalent (or vice versa) and calculating a single tariff results in starting points between 129.8 and 130.1 months (approximately 10 years and 10 months).

(3) The Ratio Test: Apportioning sentence based on the ratio of each drug (cocaine 88.8%, ketamine 11.2%) yields a starting point of approximately 128.5 months (10 years and 8.5 months).

12.These arithmetic exercises thus provide a range of approximately 128.5 to 133.5 months as a reference.

13.While sentencing is not a purely mathematical exercise, these tests are a useful analytical tool to ensure consistency and avoid an inappropriate starting point.  Considering the substantial total quantity of drugs, particularly the cocaine which is near the top of its 50-200 grammes band, D’s role as an involved storekeeper cum packager, the appropriate starting point for the overall criminality must be at the higher end of the range indicated by the tests.  The quantity of ketamine, while a smaller proportion, is not negligible and represents a separate and significant harm.

14.I therefore adopt the conversion test result (10 years and 10 months) as the basic starting point and enhance it by 6 months because of D’s heightened culpability for his involvement in packaging the drugs in his residence.  I determine the starting point, before considering personal aggravating or mitigating factors, to be 11 years and 4 months (136 months).  This starting point is consistent with the Chan Yuk Leong cross-checks, sits within the applicable guideline band for the primary drug (cocaine), and properly reflects the additional criminality presented by the ketamine.

Step 4: Consider Aggravating Factors for Enhancement

15.I now consider aggravating factors personal to D that justify enhancing the starting point to reach a notional sentence after trial.

(1) Previous Convictions and Commission on Bail: D has a previous conviction for drug trafficking and a subsequent conviction for possession. The present offences were committed while he was on police bail. This demonstrates a blatant disregard for the law, and a failure to learn from past punishment. I shall further enhance the sentence by 6 months as per HKSAR v Wong Yun Fat [2017] 4 HKLRD 59 for commission on bail. However, I would not impose further sentence on account of his previous convictions since it is still only his second trafficking conviction.

(2) Trafficking in Multiple Drug Types: As held in HKSAR v Islam Azharul [2020] 1 HKLRD 644, trafficking in a cocktail of drugs is an aggravating factor as it caters to a wider market. An increase of 6 months’ imprisonment is called for.

16.Considering these two substantial aggravating factors together, and applying the totality principle to ensure the enhancements are not oppressive, in the end, I only apply a combined enhancement of 8 months.

17.The notional sentence after trial is therefore 136 months + 8 months = 12 years’ imprisonment (144 months).

Step 5: Consider Mitigating Factors for Discount

18.I now consider all mitigating factors simultaneously to determine the overall discount from the notional sentence after trial (Herry Jane Yusuph at §73).

(1) Guilty Plea: D pleaded guilty at the earliest opportunity. This has significant utilitarian value and is the most substantial mitigating factor. He is entitled to the full one-third discount.

(2) Personal Mitigation: D is young (22 now and 20 at the time of the offence). His handwritten letter, the letter from his social worker Mr. Wu, and his mother’s letter reveal genuine and profound remorse, sincere self-reflection during remand, a commitment to bible study, a concrete plan for rehabilitation as a pet groomer, and strong family support amidst his father’s severe health struggles. While personal circumstances generally count for little in serious cases such as drug trafficking (Herry Jane Yusuph at §73), the demonstrated depth of his remorse and clear steps towards reform warrants, in my judgment, some recognition.

19.Applying the one-third discount to the notional sentence of 144 months results in 96 months. In light of the compelling personal mitigation, particularly his youth and demonstrable rehabilitation efforts, I exercise my discretion to grant a further modest discount of 3 months from this figure.

Step 6: Apply the Totality Principle and Finalise Sentence

20.The sentence derived from the preceding steps is therefore 7 years and 9 months’ imprisonment.

21.I must stand back and ensure this sentence is fair, just, and proportionate to D’s overall criminality (Herry Jane Yusuph at §79).  The sentence reflects the gravity of trafficking a large commercial quantity of multiple drugs, aggravated by his breach of bail.  It is adequately deterrent and punitive.  Yet, it is tempered in a measured way by his timely plea, youth, and exceptional personal mitigation, offering a glimmer of hope for his rehabilitation.  The sentence is not crushing nor disproportionate.

22.Therefore, on both Count 1 and Count 2, D is sentenced to 7 years and 9 months’ imprisonment, both sentences to run concurrently.

Ms. Winnie MOK, SPP of Department of Justice, for the HKSAR

Mr. Charles J. CHAN, leading Mr. Vincent C.C. CHAN, instructed by Pansy Leung Tang & Chua, Solicitors, for the defendant