HKSAR v. Yu Tsz Tat

HCCC 347/2025

[2026] HKCFI 3276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 347 OF 2025

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, you have confirmed your guilty plea before me for one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The particulars of the charge are that on 17 January 2024, near Lamppost FA6939, Castle Peak Road - Tam Mi, Yuen Long, New Territories, in Hong Kong, you unlawfully trafficked in a dangerous drug, namely, 70.2 grammes of a solid containing 52.5 grammes of cocaine.

The Facts

The facts as admitted by you are these.

At around 1.30 am on 17 January 2024, police set up a snap check at Castle Peak Road - Tam Mi, Yuen Long, near the bus stop outside Pok Wai. At around 1.50 am, the police intercepted a car driven by the defendant. The defendant was instructed to drive to the searching area near Lamppost FA6939.

Upon search, the police found in the central console of the car three plastic bags containing a total of 70.2 grammes of a solid containing a total of 52.5 grammes of cocaine. The three plastic bags contained 23.3 grammes (18 grammes of cocaine), 23.2 grammes (17.4 grammes of cocaine) and 23.7 grammes (17.1 grammes of cocaine) respectively. A digital balance was also found in the glove compartment. The police further found five mobile phones, a letter addressed to “Andy Kuk”, and cash of HK$516 in the car.

The defendant was arrested and he remained silent under caution. Upon search at the police station, the defendant was found to have HK$13,514 on his person.

A video-recorded interview was conducted with defendant on 17 January 2024. The defendant stated, amongst other things, that he had borrowed the car from his friend Andy, whom he had acquainted a few months ago. He bought the cocaine from Pat Heung for HK$35,000 in total. He first said that he had bought the drugs to share with his friends but later changed his version to drugs being for his own consumption. He stated that money found in the car and on him belonged to him, and that the digital balance belonged to him to weigh the drugs he purchased. He said he had bought the cocaine two days ago and forgot to remove the drugs from the car. He was on his way from his shop to his home in Fanling when he was intercepted.

The average retail price for crack cocaine in September 2024 was HK$1,338 per gramme. The drug seized could be sold at street level for HK$93,928.

The defendant now admits and accepts that at the material time, he knowingly possessed the drug seized for the purpose of unlawful trafficking.

Background and Mitigation

The defendant is 57 years of age, born on 4 September 1968. He was born and raised in Hong Kong and was educated to Form 5 level. He had worked in the minibus business as a driver and in renting minibuses. From 2016 to 2022, he was a mainland-Hong Kong cross-border bus driver. From 2022 to 2024, he operated a liquor store. Counsel submitted at the hearing upon my enquiry that the defendant earned about HK$70,000 per month at the time of the arrest.

The defendant has various previous convictions. He was convicted of theft in 1989, assault occasioning actual bodily harm in 1993, and dangerous driving causing grievous bodily harm in 2024. He has no previous conviction for any drug-related offence.

In mitigation, counsel submitted that the defendant, due to financial pressure and marital problems, began to abuse cocaine in around 2023. Counsel pointed out that the test result of the urine specimen collected from the defendant upon his admission into Lai Chi Kok Reception Centre showed a positive result for cocaine, which suggested that the defendant was an abuser of cocaine at the material time.

Counsel further submitted that, other than the digital balance found in the car, there was no other evidence, such as messages in the phones or repackaging materials, to suggest that the defendant was trafficking in the sense of dissemination on the streets for financial gain. Counsel submitted that the defendant would share the drug with his girlfriend and that half of the drug was for his own consumption. It was submitted that this case was a case of “social trafficking”.

Counsel also submitted that the defendant pleaded guilty at the committal stage.

Sentencing Considerations

I have considered the approach in sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho. I now consider the six steps as set out in HKSAR v Herry Jane Yusuph.

First step: identifying the relevant guideline band. The relevant guideline for trafficking in cocaine is set out in the case of HKSAR v Huang Ruifang, which provides that trafficking in 50 to 200 grammes of cocaine attracts a starting point of 8 to 12 years’ imprisonment after trial.

The quantity involved in the present case is 52.5 grammes of cocaine. On a mathematical basis, this quantity attracts a notional starting point of 8 years’ imprisonment, namely, 96 months.

Second step: the defendant’s role and culpability. Counsel for the defendant submitted that the defendant “bought the drugs to share with his friends”. Counsel further submitted that the defendant “would share the drug with his girlfriend and about half of the drug was for his own consumption”. Counsel also submitted that this case “is more akin to a case of social trafficking”.

At the hearing, counsel submitted that the word “friends” in the summary of facts could be singular “friend” or plural friends. He emphasised in court that the defendant shared “the whole lot” of the drug seized between himself and his girlfriend. That said, there is no submission that the quantity amounts to a “significant proportion” as propounded by the relevant case authorities, and the defendant would not testify on this issue.

First, I note that the defendant has shifted under caution from saying the drug was for sharing with his friend(s) to for his own consumption. The defendant even did not mention at the interview he shared the drug with his girlfriend at all. Counsel could not offer any good explanation for the shifted positions. On this point, I do not accept the defendant’s claim and place no weight on it.

Second, the defendant said under caution that he forgot to remove from the car the cocaine he had bought two days prior to the arrest. The defence submitted that it is not uncommon for a drug user to forget to bring the drugs home for consumption. It is hard to believe that if the drug was bought for the defendant’s own consumption, or even for sharing with his girlfriend, he had forgotten to bring the drug home. Also, there was a digital balance and cash of $516 in the car, and he had with him HK$13,514. One would wonder why he had with him a digital balance in the car if he had bought the drugs for his own consumption at home, as well as a large amount of cash. Therefore, I do not place any weight on the defendant’s explanation.

Third, the defendant was intercepted on the street whilst driving. Three separate plastic bags of cocaine were found in the central console of the car, each containing approximately 23 grammes of solid containing between 17 to 18 grammes of cocaine. This packaging is consistent with drugs intended for distribution rather than personal use. Counsel submitted that it is not uncommon for a drug to be packaged in that form and it could well be for self‑consumption. I accept that this packaging is just neither here nor there, and hence will not make any adverse findings based on the packaging. I will instead look at this point against the whole of the background.

Fourth, the police found five mobile phones in the car. Upon my inquiry, counsel only mentioned that three of them were “broken”. From the photo album, which I referred counsel to, it shows that the screen of the three mobile phones are broken. The prosecution informed this court that the police did not conduct any tests on the five mobile phones because one of them is protected by passcode and four of them were switched off. The prosecution could not verify if the four phones were functioning at the time of the arrest or not. Whilst I do not accept counsel’s submission that it is normal for a person to have a number of phones in his person, I am minded not to make any adverse findings against the defendant on this point.

Above all, having heard from parties, I do not accept that the drug was for the defendant’s own or his girlfriend’s consumption. There is no evidence from the defence about the girlfriend at all. It was only a bare assertion made by counsel. Mr Hui mentioned in his written submission as well as in court that his client did involve in drug dealing, placing him into a more serious role as a direct or actual trafficker under Herry Jane Yusuph and hence placing him into a worse position in the determination of the appropriate starting point exercise.

In view of the evidence before me, I am not persuaded that the defendant shared the drug with his girlfriend. Also, I infer from the fact that the drug was placed in the defendant’s car for two days after purchase. The presence of a digital balance and HK$13,000 odd in his person and he was stopped by the police late at night, I find that the defendant played the role as a courier in the trafficking hierarchy. As regards the claim of social trafficking, counsel did not refer me to any authority. I refer to the case of Wong Suet Hau [2002] 1 HKLRD 69 at 85A-C. The Court of Appeal in Secretary for Justice v Chan Suet Ping [2018] 1 HKLRD 305, held that social trafficking is generally on par with commercial trafficking in terms of culpability. In the circumstances of this case, in particular the matters stated before and the quantity and value of the drug involved, I do not accept there is any basis for imposing a lighter sentence than would have been imposed for commercial trafficking.

As held by the Court of Appeal in Herry Jane Yusuph at paragraph 49, the guidelines for trafficking in dangerous drugs are devised for those at the bottom of the trafficking hierarchy, namely, the courier or storekeeper. As such, there is no enhancement on the counts of defendant’s role.

Third step: placement within the guideline band. Considering the overall role and culpability of the defendant, I find that the notional starting point of 8 years’ imprisonment remains appropriate.

Fourth step: aggravating factors. I find no aggravating factors beyond those inherent in the offence itself and those already reflected in the assessment of the role and culpability. The defendant’s previous convictions do not relate to drug trafficking offences and the earliest two convictions are remote in time.

Fifth step: mitigating factors. The defendant pleaded guilty at the earliest opportunity for which he is entitled to the full one-third discount.

As for the claim that the drugs were the defendant’s own consumption, I have noted that the defendant was tested positive with cocaine in his urine. I have no doubt that the defendant did consume some cocaine prior to his arrest,

with the reasons I stated earlier, I do not accept the whole lot of the drug was purely for his own and his girlfriend’s consumption. Counsel did not submit to this court that a significant quantity of the drug was for the defendant’s own consumption. Counsel only urged me to exercise my discretion.

In this circumstances, and with reference to the case of Choi Chun Wo [2018] HKCA 384, and the case of Liu Ming Sze [2017] 1 HKLRD 69, I am minded to exercise my discretion to reduce the standing point by 3 months to reflect the claim that the defendant would consume some of the drug given the urine test result.

As for the personal and family circumstances of the defendant, the Court of Appeal has repeatedly stressed that they carry little weight in serious drug trafficking cases. Therefore, I place no weight on this point.

After a 3 month reduction, the standing point becomes 93 months’ imprisonment. After one-third discount for the guilty plea, the sentence is 62 months’ imprisonment, namely, 5 years and 2 months, such that totality and overall fairness.

Sixth step: totality and overall fairness. After the reduction as stated, the sentence is 62 months’ imprisonment. I have stood back and considered the sentence as a whole. The sentence is undoubtedly severe. However, having regard to the seriousness of the offence and the defendant’s role and culpability, I am satisfied that the sentence is fair, just and balanced to the offence as well as to the defendant.

Defendant, you are therefore sentenced to 5 years and 2 months’ imprisonment for this offence.