HKSAR v. Tse Wai Lung and Another

HCCC 267/2024

[2026] HKCFI 3828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 267 OF 2024

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

PROCEDURAL HISTORY

1.I was given to understand that in the lower court case KCCC 1195/2022, D1 and D2 were jointly charged with one count of trafficking in dangerous drugs involving both cocaine and 3,4-methylenedioxymethamphetamine (MDMA, commonly known as ecstasy). To cater for the plea of D1, the Prosecution amended and split the original charge into two counts of trafficking in dangerous drugs. It follows that D1 and D2 are now facing the respective charges in the present case as follows. 

THE PRESENT CASE

Charge 1 (against D1 and D2)

2.D1 and D2 were jointly charged with one count of “trafficking in a dangerous drug”,  namely 16,861.48 grammes of a solid containing 13,610.83 grammes of cocaine (“Charge 1”). 

3.Particulars of Charge 1 are that D1 and D2, on 21 May 2022, at Flat F, 6th Floor, Sun Tai House, Nos. 10-16 Junction Road, Kowloon City, Kowloon, in Hong Kong (“the Flat”), together with other person(s) unknown, unlawfully trafficked in a dangerous drug, namely 13,610.83 grammes of cocaine.  

4.As of May 2022, the estimated street value of the cocaine involved in this case was HK$15,310,224 (in powder form) or HK$22,695,552 (in crack form).

Charge 2 (against D2 only)

5.D2 was separately charged with another count of “trafficking in a dangerous drug”, namely 12,770.20 grammes of a solid containing 852.03 grammes of ecstasy (“Charge 2”).

6.Particulars of Charge 2 are that D2, on the same day and at the same location, together with other person(s) unknown, unlawfully trafficked in a dangerous drug, namely 852.03 grammes of ecstasy. 

7.D1 pleaded guilty to Charge 1 while D2 pleaded guilty to Charge 1 and Charge 2 before a Magistrate on 19 August 2024 and were committed to the Court of First Instance for sentence. They confirmed their pleas and admission to the Summary of Facts before me, and were convicted accordingly.

SUMMARY OF FACTS

8.The facts which D1 and D2 admitted can be summarised as follows. 

9.On 21 May 2022, the police conducted an anti-narcotics operation at the Flat. At about 8:49 p.m., D1 was seen leaving the Flat and walking down the staircase. He was intercepted outside Sun Tai House and escorted back to the Flat.

10.DPC 8733 opened the gate of the Flat with a key found on D1, but could not successfully open the wooden door as the safety chain was on. Upon making a forcible entry into the Flat, D2 was found inside the Flat. D2 suddenly rushed towards the door. DPC 12422 immediately grabbed hold of D2’s hands, but D2 ignored him and continued to struggle, intending to rush towards the door. Subsequently, D2 was subdued. 

11.After the Flat was searched, (a) a total of 13,610.83g of cocaine, (b) 852.03g of ecstasy, (c) electronic scales and (d) a number of paraphernalia including scissors, gloves, zip-lock bags, aluminium trays, chopsticks, plastic bowls and sealing machines, were found,  inter alia.

12.Under caution, D1 said “I am in financial need, so I received HK$20,000 from someone and helped convey the dangerous drugs up here for unwrapping and packing...” 

13.Under caution, D2 said “I received HK$10,000 to help someone unwrap the dangerous drugs. I wanted to flee just now as I was afraid of being arrested by the police”. 

14.In a Video-Recorded Interview, D1 said, inter alia, that:

a. On 18 May 2022, D1 ran into a friend called “Ah Tai”. After telling his friend that he was unemployed as he was not fully vaccinated, “Ah Tai” told D1 that a friend of his offered HK$20,000 if someone was willing to help convey something. D1 casually replied alright and it depended on what the items were. “Ah Tai” then gave him a white iPhone (later seized by the police) without disclosing further details about the work and only reminded him to answer the calls. He had not met “Ah Tai” again since then;

b. Subsequently, a person named “Ah Sheung” called him and told him to wait for a call near Sun Tai House. He went there, where an unknown male then gave D1 a paper box which weighed about 20kg, a red bag which was quite light, and a key. The male told D1 to place all the items at the Flat, which he did. After that, D1 left the Flat and passed the key to the Flat to the male;

c. On the day of the incident, “Ah Sheung” called D1 and asked him to contact a person called “Dan” (i.e. D2) who would work together with him. “Ah Sheung” also asked D1 to buy two cutters, scissors, aluminium trays and bowls, and reminded D2 to buy electronic scales. D1 and D2 purchased the items and went to the Flat accordingly;

d. He asked D2 what the items were and D2 replied those were dangerous drugs. Both of them unpacked the dangerous drugs together;

e. He did not receive the remuneration of HK$20,000; and

f. He did not know who rented the Flat.

15.In a Video-Recorded Interview, D2 admitted, inter alia, that : 

a. His nickname is “Ah Dan”;

b. He met a friend called “Uncle” or “Chun Gor” in a bar about a month ago. That friend asked him if he was interested to unpack some dangerous drugs for a week and he would get paid with about HK$10,000. He initially refused, but later on agreed, due to financial difficulties;

c. On 21 May 2022, “Chun Gor” asked D2 to start working and said that “Sai Lo” (i.e. D1) would join him in working;

d. He was instructed by “Chun Gor” to buy electronic scales and repack the drugs in the Flat;

e. He subsequently bought the electronic scale, weighed the drugs, and packed 1 kg in one bag, as well as putting them into zip-lock bags;

f. D1 and he did the job together and there was no division of labour; and

g. He did not know who rented the Flat. He was brought to the Flat by D1.

BACKGROUND AND MITIGATION

D1

16.The 1^st Defendant was born in 1999. He is 26 years old, single. He came to Hong Kong from the Mainland with his parents when he was two years old. 

17.He was educated up to Form 3. He had worked as a waiter, warehouse worker, cook, cleaning worker, delivery worker, office assistant. He used to contribute about $4,000 per month to his mother. At the time of arrest, D1 was between jobs. 

18.Mr. P.K. Chan, Counsel for D1, informed this Court that D1 donated HK$100 to the “Support Fund for Wang Fuk Court in Tai Po” on 6 February 2026. Although it is not a large sum of money, it does represent a significant part of the “salary” he receives whilst detained in prison, Mr. Chan submits.

19.D1 has two previous convictions, none of which is similar to the nature of the present offence. Mr. Chan submits that he accepts there are aggravating factors involved, including the fact that D1 performed packaging work. At the same time, he stresses that it was the first time when D1 committed a dangerous drug-related offence. D1 is remorseful and determined to reform.

20.Mitigation letters written by D1 and D1’s previous employer have been produced to Court. I have taken them into consideration.

D2

21.D2 was born in 1999 and is now 26 years old. He is single. Both of his parents have passed away. He was educated up to secondary school in Hong Kong. Prior to his arrest, he worked as a salesperson. He has a hitherto clear criminal record.

22.According to Mr. Roy Lau, Counsel for D2, D2 was required to consult a psychologist to deal with his emotional issues during the COVID pandemic. After the pandemic, D2 was in financial need. Subsequently, he was acquainted with a friend called “Uncle” or “Chun Gor” in a bar who introduced him to the job of unpacking dangerous drugs for a week for about HK$10,000. This is the background of his commission of the present offences. 

23.Mr. Lau submits that D2 made full confessions to the police after arrest and pleaded guilty at the earliest opportunity. He is remorseful and promises to start afresh. 

24.Mr. Lau submits that D2 followed the instructions of others to handle and repackage the material dangerous drugs, which attracts an enhancement of sentence. He was brought to the Flat by D1, and it was the first time that he went to the Flat. His role and culpability are therefore less serious than D1, Mr. Lau submits. Mr. Lau also accepts that there are two types of drugs involved, and this attracts an enhancement of sentence. 

SENTENCING

25.I have carefully considered the nature and quantity of the dangerous drugs involved, the facts of this case, the personal background of D1 and D2, the mitigation put forward by Mr. Chan and Mr. Lau, the guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as well as the updated guidelines for trafficking in cocaine as set out in the case of HKSAR v Huang Ruifang [2025] 2 HKLRD 138 are applied.

For Charge 1 against D1

26.I shall deal with the sentence of D1 first.

Step One: Trafficking Guideline

27.The present case concerns 13,610.83 grammes of cocaine, which falls into the revised guideline band of 5,000 to 15,000 grammes with a starting point of 24 to 27 years of imprisonment, according to Huang Ruifang.

Step Two: D1’s role and culpability

28.The second step is to assess the Defendant’s role and culpability. Applying HKSAR v Islam Shafiqul [2020] 5 HKLRD 471, where the Court of Appeal held that an offender who had keys to drug-storage premises, packaging equipment, and drug transaction records was more than a mere courier and was operating a packaging and distribution centre. The same inference arises in the present case. In my assessment, the role of D1 is more than a courier or storekeeper. He had keys to the Flat and he performed packaging work there. An enhancement should be made to reflect this. 

29.In HKSAR v Islam Azharul [2020] 1 HKLRD 644, an enhancement of 6 months’ imprisonment was appropriate for a defendant who was involved in the packaging and dissemination of dangerous drugs, and rented a room to store the dangerous drugs involved. There is no evidence before this Court that D1 rented the Flat. His role is therefore less serious than that in Islam Azharul.

30.There is no international element in this case.

Step Three: Starting Point

31.The Court should now identify where in the guideline band of 24 to 27 years should D1’s case belong. On a purely arithmetical calculation, the notional starting point would be 26 years and 7 months (i.e. 318.999 months) of imprisonment. 

32.Having considered D1’s culpability, I am of the view that it is necessary to have an enhancement of 6 months, resulting in 27 years and 1 month (i.e. 325 months) of imprisonment as the notional starting point.

Step Four: Aggravating Factors

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

Step Five: Mitigating Factors

34.The only mitigating factor is D1’s timely plea of guilty, for which he is granted the full one-third discount.

Step Six: Overall Sentence

35.After applying the discount, the sentence of D1 is reduced to 18 years’ (i.e. 216 months) imprisonment.

For Charges 1 and 2 against D2

36.I turn now to the sentence of D2.

Step One: Trafficking Guideline

37.D2 was originally charged with trafficking in cocaine (i.e. Charge 1)and ecstasy (i.e. Charge 2)under one count in the lower court case KCCC 1195/2022. Further, the dangerous drugs in Charge 1 and Charge 2 were both found in the Flat on the same day.

38.I will adopt a global nominal starting point based on the combined quantity of drugs, and arrange for the individual sentences to be served so that the combined sentence can be achieved (HKSAR v Wan Lau Mei (27/03/2014, CACC 389/2013)). There are two types of dangerous drugs involved regarding D2 in the present case. This Court will adopt a combined approach in sentencing. 

39.Charge 1 concerns 13,610.83 grammes of cocaine, which falls into the revised guideline band of 5,000 to 15,000 grammes with a starting point of 24 to 27 years of imprisonment, according to Huang Ruifang.

40.Charge 2 concerns 852.03 grammes of ecstasy. According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the guideline band for 852.03 grammes of ecstasy is 12 to 14 years of imprisonment.

41.In the recent case of HKSAR v Yau Kai Fung (邱啟峰) [2026] HKCA 885 concerning the sentencing approach in “cocktail” or combination of drugs, the Court of Appeal held that the absurdity and conversion tests no longer serve any useful or principled purpose as cross checks, in light of the structured approach set out in Herry Jane Yusuph and the revised sentencing guidelines in in Huang Ruifang (at §42). The ratio test, on the other hand, is to be used only in the secondary role (at §39).

42.As two different kinds of drugs were involved with a combined weight of 14,462.86 grammes, in order to assist me in identifying the overall starting point of the offences, the "Ratio Test" as explained in HKSAR v Chan Yuk Leong, CACC 318/2013 has been conducted with the following result: around 26 years and 7 months. This “Ratio Test” result is for cross check purpose only.

43.Having considered the above result and taking into account the fact that more than one type of dangerous drugs are involved, I consider the starting point of 27 years 3 months as appropriate in the present case. 

Step Two: D2’s role and culpability

44.The second step is to assess D2’s role and culpability. The role of D2 is more than a courier or storekeeper. He performed packaging work there, including unpacking and transferring the drugs into zip-lock bags. Applying Islam Shafiqul, D2 was more than a mere courier or storekeeper and was operating a packaging and distribution centre. The culpability of D2 was therefore higher than that of a simple courier. An enhancement should be made to reflect this. 

45.There is no evidence before this Court that D2 rented the Flat. His role therefore is less serious than that in Islam Azharul.

46.There is no international element in this case.

Step Three: Starting Point

47.Having considered D2’s culpability as discussed, I am of the view that it is necessary to have an enhancement of 6 months, resulting in 27 years 9 months (i.e. 333 months) of imprisonment as the notional starting point.

Step Four: Aggravating Factors

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

Step Five: Mitigating Factors

49.Like D1, the only mitigating factor is D2’s timely plea of guilty, for which he is granted the full one-third discount.

Step Six: Overall Sentence

50.The global sentence after granting D2 the full one-third discount for his timely guilty plea would therefore be 18 years and 6 months (i.e. 222 months).

51.To achieve this sentence, in relation to Charge 1, I sentence D2 to 18 years and 6 months’ imprisonment upon guilty plea, in relation to Charge 2, 8 years and 10 months’ imprisonment upon guilty plea.

52.The sentences in both charges are to be served concurrently, resulting in the final sentence of 18 years and 6 months of imprisonment.

ORDER

53.Accordingly, D1 is sentenced to 18 years’ imprisonment.

54.D2 is sentenced to 18 years and 6 months’ imprisonment.

Mr. Alex Ng, Counsel on fiat of the Department of Justice, for the Prosecution

Mr. Chan Pak Kong, instructed by Au Yeung, Cheng, Ho & Tin, assigned by DLA, for the 1^st Defendant

Mr. Roy Lau, instructed by W K To & Co Solicitors, assigned by DLA, for 2^nd Defendant