HKSAR v. Tse Hei Wai

HCCC 64/2024

[2026] HKCFI 2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 64 OF 2024

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REASONS FOR SENTENCE

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1.The Defendant was charged with one count of conspiracy to traffick in a dangerous drug, namely between a date unknown in August 2022 and 31 August 2022, both dates inclusive, in Hong Kong, conspired together with Wong Fai-kiu (“Madam Wong”) and a person unknown to unlawfully traffick in a dangerous drug, namely cocaine, contrary to sections 4(1)(a) and 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134, and sections 159A, and 159C of the Crimes Ordinance, Cap 200.  The Defendant pleaded guilty to the offence on 4^th March 2024 before a magistrate and was committed to this Court for sentence. 

2.The Defendant appeared before this Court on 3^rd February 2026.  On that occasion, she confirmed her guilty plea and her admission of the Summary of Facts.  She was convicted as charged accordingly. 

SUMMARY OF FACTS

3.The facts which the Defendant agreed at the time of her plea can be summarised as follows.  In the morning of 31^st August 2022, the Defendant arrived at Hong Kong International Airport on a commercial flight from Manila.  The Defendant picked up her two suitcases from a baggage carousel and proceeded to leave Arrival Hall B, where she was intercepted by Customs and Excise officers. 

4.Upon inspection of the two suitcases, the officers found four bags of white substance in the concealed compartment of each of the suitcases.  There were eight bags of suspected dangerous drugs in total.  Under caution, the Defendant said she owed money to someone, therefore she agreed to help someone called “Ben” to bring the illicit drug to Hong Kong for a reward of HK$150,000. 

5.The eight bags of substance were confirmed to be a total of 6,567 grammes of a solid containing 4,998 grammes of cocaine.  The estimated street value was between HK$5,667,321 (in powder form), and HK$10,605,705 (in crack form). 

6.In a subsequent video-recorded interview with the police, the Defendant said the following under caution.  In early 2022, she came to know a female named “Ah Faye”, with the surname Wong.  Ah Faye knew the Defendant owed money to others and asked the Defendant to fly to Dubai to bring something back to Hong Kong.  The Defendant agreed and sent a photograph of her passport to Ah Faye by WhatsApp.  The Defendant was further referred by Ah Faye to someone called “Ben” whom the Defendant had never met.  Ben arranged round-trip flight tickets between Hong Kong and Dubai and hotel booking in Dubai for the Defendant. 

7.After arrival in Dubai, the Defendant purchased a local SIM card and stayed in the hotel.  Ah Faye rang the Defendant and asked her to collect two suitcases outside the hotel.  Ah Faye also told her that the two suitcases contained illicit drugs.  Both suitcases were kept by the Defendant until she checked in for the flight back to Hong Kong. 

8.The Defendant said she did not receive the financial reward. 

9.Ah Faye was in fact Madam Wong.  The identity of Ben is unknown. 

BACKGROUND AND MITIGATION

10.The Defendant was born in 2000, and is now 26 years old.  She has a hitherto clear record in Hong Kong. 

11.The Defendant was educated up to Grade 12 in Canada.  At the time of arrest, she was studying for a Diploma at a private institution in Singapore.  Due to COVID-19 lockdown, the Defendant took lessons online in Hong Kong instead.  She was not employed.  Mr. Hui also informed this Court today that the Defendant did attend University of Toronto, Canada studying psychology but she dropped out after half a year. 

12.The Defendant is single.  She lived with her parents and her elder brother before her arrest.  Her father passed away in October 2024, when she was remanded in custody.  The Defendant’s mother had not met her from about early 2020 to about late 2024 due to COVID‑19 pandemic and belatedly learnt of the present case in late 2024. 

13.Mr. Hui, counsel for the Defendant, said that the Defendant was a mere courier in the present case, acting on the instructions of Madam Wong.  She committed the present offence to earn quick money as she was unemployed and in debt.  However, when asked about the details of the debt she owed in the video-recorded interview, she decided to remain silent.  This Court, of course, accepts that the Defendant has the right to remain silent at all times.  There is no evidence before this Court to substantiate the Defendant’s claim. 

14.Mr. Hui informed this Court that the Defendant has been suffering from depression since 2016, but confirmed that he is not relying on depression as a particular mitigating factor.  He does not ask this Court to consider a further reduction in the sentence on the basis of the Defendant’s mental condition. 

15.Mr. Hui submits that the Defendant pleaded guilty at the earliest opportunity.  She is remorseful and promises to start afresh.  She has taken different courses to better equip herself whilst in custody since 31^st August 2022. 

16.A total of seven mitigation letters prepared by the Defendant, the Defendant’s mother, the Defendant’s elder brother, the fiancée of the Defendant’s elder brother, the Defendant’s former classmate’s mother, the Defendant’s schoolmate, and the Defendant’s friend have been submitted to this Court. 

17.Mr. Hui asks this Court to give the Defendant a further discount because of her assistance to the Prosecution. The Defendant provided a non‑prejudicial statement (“NPS”) on 27^th June 2023, and was willing to testify against Madam Wong.  Madam Wong was the 2^nd Defendant in the original indictment.  Madam Wong is now separately charged in HCCC 63/2024, in which the Defendant was listed as one of the prosecution witnesses.  Mr. Hui relied on the following cases: HKSAR v Ng Chi Ming (unreported, CACC 570/2001, 21 March 2022), HKSAR v Luk Chi Yan Adison (unreported, CACC 26/2011, 9 August 2011) and HKSAR v Luk Chi Kan [2024] 4 HKLRD 532, and urged this court to exercise its discretion to give a total discount of 45% to 49% from the starting point. 

18.In relation to HCCC 63/2024, Madam Wong eventually informed the court of her intention to plead guilty on the first day of the trial, i.e. 3^rd February 2026.  She was subsequently convicted as charged on 6^th February 2026, upon her guilty plea and admission to the Summary of Facts in that case. 

SENTENCING

19.Conspiracy to traffick in a dangerous drug is a very serious offence.  The maximum sentence on conviction upon indictment for conspiracy to traffick in dangerous drugs is the same as that of trafficking in dangerous drugs, which is life imprisonment and a fine of HK$5 million. 

20.The sentencing principles in respect of conspiracy to traffick in dangerous drugs are provided in HKSAR v Chan Kam Loi (unreported, CACC 410/2012, 30 January 2014), which was followed in HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799.  Quantity of the drugs is not the only matter relevant to the assessment of gravity, but it provides the Court with a ready means of identifying an appropriate starting point: see Chan Kam Loi at paragraph 100.  As set out in the Summary of Facts which were admitted by the Defendant in the present case, the Defendant had conspired to traffick 4,998 grammes of cocaine.  I will adopt the relevant guidelines for trafficking of cocaine in my consideration of the appropriate sentence. 

21.I have carefully considered the nature and quantity of the dangerous drug involved, the facts of the case, the personal background of the Defendant, the mitigation put forward by Mr. Hui, and the approach to sentencing those who traffick in dangerous drugs.  With the principle modified by the Court of Appeal in the recent authority of HKASR v Lee Ming Ho CACC 130/2019, [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. 

Step One: Trafficking Guideline

22.The first step is to assess the gravity and identify the relevant guideline according to the nature and quantity of the drug involved.  The sentencing guideline for cocaine is set out in HKSAR v Huang Ruifang [2025] 2 HKLRD 138. The present case concerns 4,998 grammes of cocaine, which falls into the revised guideline band of 1,500 to 5,000 grammes with a starting point of 20 to 24 years of imprisonment. 

Step Two: The Defendant’s role and Culpability

23.The second step is to assess the Defendant’s role and culpability.  In Lee Ming Ho, the Court of Appeal reiterated that the international element should generally be considered as one of the relevant factors when assessing the role and culpability of the Defendant in identifying the appropriate starting point for sentence. 

24.In the present case, there is no evidence to suggest that the Defendant was anything more than a courier.  However, she knowingly brought a large quantity of drugs into Hong Kong for a monetary reward and was an important link in the international trafficking chain.  So, there is clearly an international element involved.  If the drugs trafficked by the Defendant had been successfully brought into the local drug market in Hong Kong, substantial harm would have been caused to the community. 

Step Three: Starting Point

25.As to the third step, this Court should identify where in the guideline band of 20 to 24 years should the Defendant’s case belong.  On a purely arithmetical calculation, the notional starting point after trial would be 23 years and 11 months (i.e. 287 months) of imprisonment.

26.In Herry Jane Yusuph, it is recognised by the Court of Appeal that the sentencing court might go outside the guideline band given the unique circumstances of the case.  Having considered the Defendant’s culpability as discussed, I am of the view that it is necessary to go beyond the 24-year-ceiling of the guideline band.  I adopt 25 years and 5 months (i.e. 305 months) of imprisonment as the notional starting point. 

Step Four: Aggravating Factors

27.There are no further aggravating factors in this case. 

Step Five: Mitigating Factors

28.One of the strongest mitigating factors in the present case is, of course, the defendant’s timely plea, for which one-third discount would be given. 

Further discount for the Defendant’s assistance

29.In considering the appropriate discount to be given to the Defendant for the assistance she rendered to the authority, I have taken the following cases into consideration: Z v HKSAR (2007) 10 HKCFAR 183; HKSAR v Lo Sze Tung Stephanie [2018] HKCA 421; HKSAR v Luk Chi Kan [2024] 4 HKLRD 532; HKSAR v Luk Chi Yan Adison (unreported CACC 26/2011, 9 August 2011); and HKSAR v Ng Chi Ming (unreported CACC 570/2001, 21 March 2002). 

30.In Lo Sze Tung Stephanie (at paragraph 64), the Court of Appeal stated that 40% to 50% discount range is appropriate for a defendant who has offered to testify for the prosecution but whose offer has not been taken up because of some supervening event beyond the defendant’s control.  The principle was followed by Luk Chi Kan. 

31.In the present case, the Defendant explained in her NPS the arrangements in the conspiracy and the role of Madam Wong.  She was also fully prepared and willing to give evidence as a prosecution witness in Madam Wong’s trial (i.e. HCCC 63/2024).  Mr. Hui submits that the NPS is highly valuable which has been instrumental in obtaining the guilty plea of Madam Wong.  It is accepted by Mr. Percy for the Prosecution that the Defendant gave very useful information to the authorities.  The Court accepts that too. 

32.Having considered all the circumstances, I am of the view that the Defendant would be entitled to a total discount of 47% , taking into account her guilty plea and her assistance given to the Prosecution. 

Step Six: Overall Sentence

33.After applying the discounts in question, the sentence is reduced to 13 years and 5 months’ (i.e. 161 months) imprisonment. 

34.I am satisfied that this sentence should be fair and just in all the circumstances. 

ORDER

35.The Defendant is therefore sentenced to 13 years and 5 months’ imprisonment. 

Mr Duncan C H Percy, Counsel on fiat of the Department of Justice, for the Prosecution

Mr Lawrence Hui, instructed by H Y Leung & Co LLP, assigned by DLA, for the Defendant