HKSAR v. Lee Tsz on

HCCC 256/2024

[2026] HKCFI 3421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 256 OF 2024

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REASONS FOR SENTENCE

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The Charges

1.The defendant faces two charges in this case, the 1^st count being manufacturing a dangerous drug, namely cocaine, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134; and the 2^nd count, trafficking in dangerous drugs, namely 5.42 grammes of a liquid containing 2.94 grammes of cocaine hydrochloride and 570.23 grammes of a solid containing 536.68 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.He pleaded not guilty to the two counts but was found guilty after trial by the jury with a unanimous verdict on the 1^st count and a 6:1 majority verdict on the 2^nd count.

3.The prosecution’s case on 1^st and 2^nd counts is that between 13 and 17 September 2022, the defendant manufactured and trafficked in cocaine at Flat C, 21/F, Tower 2 of Avon Park in Fanling (“the flat”).  In the evening on 17 September 2022, the police received a request for police assistance because two unknown males were seen trying to break into the flat.  By the time the police arrived, the two males had fled.  The police contacted the tenant of the flat, not being the defendant, but the tenant gave excuses for not returning to his rented flat. Eventually the police took actions and broke into the flat.  Inside, the police found the quantities of dangerous drugs as set out in the 2^nd count, together with chemicals and paraphernalia for manufacturing dangerous drugs in various places in the flat.  Contact evidence was obtained from the scene and the defendant’s DNA was later found to be on a toothbrush in the bathroom right next to various equipment for manufacturing drugs.  His DNA was also found on a beverage can on a desk in the living room and his fingerprint on the handle of one of the two bedrooms in the flat.

4.The Police viewed the CCTV footages at Avon Park and discovered that between 13^th and 17^th September 2022, the defendant had gone up to the 21^st Floor where the flat was located on at least 5 to 6 occasions.

5.When arrested, the defendant remained silent.

6.Photographs of the scene were taken and it can be seen that the manufacturing operation was rather modest and its duration as pleaded in the 1^st count was four days.  By the verdicts of the jury, they found that the defendant had committed the two offences himself and not with any other person.

Defendant’s background

7.The defendant is 28 years of age, married and has a young daughter.  He was born in Hong Kong and received education up to Form 6 level.  He had worked as a salesman before.  He is not a drug addict and has a clear record.

8.Given the seriousness of the offences, Ms Cheng, counsel acting for the defendant, did not advance any mitigation submissions on his behalf except asking for concurrent sentences to be imposed for the two counts.

Discussion on sentence

9.I shall start by dealing with the 1^st count of manufacturing a dangerous drug.

10.In HKSAR v Cheng Chi Wai [2022] 3 HKLRD 408, the Court of Appeal gave the following guidance on sentencing the offence of manufacturing a dangerous drug:-

(1) The quantity of drugs involved in a drug-manufacturing offence was extremely difficult to determine since the drugs seized represented only the quantity manufactured but not yet sold. It would be inappropriate to base a sentence solely or mainly on the quantity seized, in contrast to drug‑trafficking offences where the quantity involved was fixed. Sentences for manufacturing offences were far heavier than those of trafficking offences involving the same quantity (see paras. 25–26).

(2) The starting point for manufacturing offences must be based on the overall circumstances of individual cases. The quantity seized at a manufacturing workshop must be a relevant factor as that showed, to some extent, its size and productivity, and reflected the seriousness of the offence. Further, the length of time the workshop had operated, its scale and productivity, the quantity and standard of manufacturing paraphernalia, the extent of the defendant’s participation and role were all important factors (see paras. 30–32).

(3) The appropriate starting points for drug-manufacturing offences were as follows:-

(i) If the manufacturing act was one-off rather than continuous, a starting point slightly higher than that for trafficking in the same quantity of drugs might be appropriate. However, the starting point for manufacturing offences, even where only a small amount of drugs were seized, should not be less than 10 years’ imprisonment, unless the manufacturing act was just nominal (see paras. 27, 33).

(ii) If the manufacturing act was continuous, and the workshop was of considerable scale and productivity involving a large amount of chemicals and a not insignificant quantity of high-standard manufacturing paraphernalia, the appropriate sentence should not be lower than 20 years’ imprisonment even if the quantity of drugs seized on the spot was not substantial (see para. 34).

(iii) For a large-scale, productive and long-running manufacturing workshop, where the defendant played an active and important role, and an exceptionally large amount of drugs was seized, the appropriate starting point should even exceed 30 years’ imprisonment to reflect the seriousness of the offence (see paras. 35–36).

11.According to the above principles, this Court should not base a sentence solely or mainly on the quantity of dangerous drugs seized but should consider all the circumstances pertaining to the operation including its nature and extent.

12.The 1^st count alleged the offence to have taken place over four days at a residential flat in Fanling. Looking at the paraphernalia seized at the premises, the operation was rather modest and not sophisticated at all.

13.There was however found on the premises a total of 536.68 grammes of cocaine. According to the latest decision of the Court of Appeal inHuang Ruifang [2025] HKCA 234, the notional starting point for the offence of trafficking in that quantity of drugs should be around 16 years’ imprisonment.

14.As observed inHKSAR v Cheng Chi Wai(supra), sentences for manufacturing offences are “far heavier” than those of trafficking offences involving the same quantity.

15.In the present case, I would regard the manufacturing process at the premises as modest although it was carried out over a period of four days.  The quantity of drugs seized at the scene is a relevant factor that shows, to some extent, the productivity and size of the operation, and reflects on the seriousness of the offence.

16.Based on the verdict of the jury, the defendant had carried out the manufacturing himself and not together with any other person.

17.Bearing in mind all the circumstances pertaining to this operation, I shall adopt 18 years’ imprisonment as the starting point for the 1^st count of manufacturing a dangerous drug. 

18.Turning to mitigating factors.  The Court of Appeal has repeatedly held that personal circumstances and financial difficulties count very little in cases as serious as the present one: see HKSAR v Herry Jane Yusuph[2021] 1 HKLRD 290 at §73. There is nothing that warrants any mitigation or justifies any discount.  The defendant is thus sentenced to 18 years’ imprisonment on the 1^st count.

19.Turning to the 2^nd count of trafficking in dangerous drugs.

20.According to the decision of the Court of Appeal inHuang Ruifang[2025] HKCA 234, the relevant sentencing band for trafficking in cocaine between 500 grammes and 1,500 grammes would be 16 to 20 years’ imprisonment.  With the quantity of narcotic content in question, the notional starting point for the 2^nd count of trafficking should be around 16 years’ imprisonment.

21.According to the verdict of the jury, it was the defendant himself who had trafficked in those dangerous drugs.

22.Given the seriousness of the offence, there is no real mitigation justifying any discount to be afforded to the defendant.

23.The defendant is thus sentenced to 16 years’ imprisonment for the 2^nd count.

24.Turning to the question of totality. As there is clearly overlap in the culpability of the offences on the 1^st and 2^nd counts, I shall order the sentences imposed on the defendant for the twocounts to be served concurrently.  Therefore, the overall sentence to be served by the defendant is 18 years’ imprisonment.

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

Ms Flora Cheng, instructed by Tangs Solicitors, assigned by DLA, for the Defendant