HKSAR v. Lo Hon Kwan
|
HCCC 82/2025 [2026] HKCFI 4328 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 82 OF 2025 ________________________
________________________
________________________ REASONS FOR SENTENCE ________________________ 1.The defendant pleaded guilty to one charge of possession of a dangerous drug and one charge of trafficking in a dangerous drug, and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 10 March 2025. The case was then committed to the Court of First Instance for sentence. Before this court, the defendant confirmed his pleas and his agreement to the Summary of Facts through counsel. 2.The particulars of Charge 1 state that on 21 December 2023, outside Ground Floor, No. 555 Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, the defendant had in his possession a dangerous drug, namely 3.96 grammes of a crystalline solid containing 3.96 grammes of methamphetamine hydrochloride (commonly known as the ‘Ice’ drug). 3.The particulars of Charge 2 state that on 21 December 2023, outside Ground Floor, No. 555 Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 49.9 grammes of a crystalline solid containing 49.8 grammes of methamphetamine hydrochloride. 4.The Summary of Facts admitted by the defendant provides, inter alia, as follows. At about 2.14 am on 21 December 2023, police officers in uniform were on patrol along Nathan Road towards the direction of Tsim Sha Tsui, Kowloon. When they walked past outside Ground Floor, No. 555 Nathan Road, Yau Ma Tei, they found the defendant, upon seeing the officers, immediately turned around and walked towards the direction of Tsim Sha Tsui. The police officers immediately intercepted the defendant for enquiry and search. The defendant was then holding a paper bag in his left hand. 5.Upon search, the police found the following inside the paper bag that the defendant was then holding:
6.The defendant was then arrested and cautioned for trafficking in a dangerous drug. At the time of his arrest, the defendant had on him cash of HK$7 and one mobile phone. 7.The estimated street value of all the dangerous drug seized was around HK$34,470. 8.The defendant expressly admits and accepts that at the material time:
9.Regarding the personal background of the defendant, the defendant is now aged 56. He was aged 54 at the time of his arrest. He was born and raised in Hong Kong and received education up to Secondary Form 2 level in Hong Kong. After completing Secondary Form 2, the defendant had been working as various types of casual workers in construction site 10.In October 2019, the defendant was seriously injured when he was working in one of the construction sites and has been suffering from bone fracture of both his forearms. Surgical operations were performed for internal fixation of the bones with plates and screws. I am told that the defendant is still receiving regular orthopaedic consultation in Tuen Mun Hospital. 11.Since the said industrial accident and prior to him being arrested, the defendant was unemployed and depended upon CSSA at the amount of HK$4,500 per month. The defendant is single with one elder sister, and both of his parents had passed away. And I am told that the defendant committed Charge 2, ie the trafficking offence, because of financial pressure. At the material time, the defendant was unemployed and the defendant wanted to earn some quick money to continue to support himself financially. 12.The defendant has 27 previous convictions, one of which was for trafficking in dangerous drugs. It was recorded in July 2010, for which the defendant was sentenced to the DATC. 13.I shall deal first with the sentence on Charge 2, trafficking in a dangerous drug. The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. The first step is to identify the relevant sentencing band (or bracket) applicable to the quantity of drug concerned. The second step is an assessment of the role and culpability of the defendant based on the evidence before the court. The third step is to identify where in the relevant band of the guidelines the defendant comes. It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant. The fourth step is to consider aggravating factors which bear on the “notional sentence after trial”. The fifth step is to have regard to any matter of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”. The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just, and balanced sentence”. 14.Regarding the first step, for 49.8 grammes of methamphetamine hydrochloride, the applicable guideline tariff band is that of 7 to 11 years’ imprisonment: see HKSAR v Huang Ruifang (No. 3) [2025] 2 HKLRD 138 at paragraph 66. 15.Second, concerning the defendant’s role and culpability, I accept that the defendant was a courier. 16.Third, for 49.8 grammes of methamphetamine hydrochloride, an arithmetical approach towards the guidelines would lead to a “notional sentence after trial” of 9 years and 7.8 months’ imprisonment. Based on my finding of the defendant’s role and culpability under Step 2 above, I would adopt that as the “notional sentence after trial” in this case for Charge 2. 17.Regarding Step 4, I am required to consider any aggravating features which would go to enhance the “notional sentence after trial” identified under Step 3. There is one such aggravating feature in the present case. This concerns the defendant’s previous conviction for trafficking in dangerous drugs. That is an accepted factor justifying an enhancement of sentence under Step 4. For this, I would enhance the sentence of the defendant under Charge 2 by 3 months’ imprisonment. This would take the “notional sentence after trial” to 9 years and 10.8 months’ imprisonment. 18.Fifth, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely guilty plea, for which I would give him a one-third discount. Accordingly, I sentence the defendant on Charge 2 to 6 years and 7 months’ imprisonment. 19.I turn now to Charge 1. In HKSAR v Mok Cho Tik [2001] 1 HKC 261, it was held by the Court of Appeal that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months’ imprisonment. In the present case, I will adopt 15 months’ imprisonment as the starting point. 20.Giving the defendant a one-third discount for his guilty plea, I sentence the defendant to 10 months’ imprisonment on Charge 1. 21.Finally, regarding Step 6 of Herry Jane Yusuph, and taking into account firmly the totality principle, I order that the sentences on Charge 1 and Charge 2 are to run concurrently, resulting in a total sentence of 6 years and 7 months’ imprisonment. 22.I consider that the total sentence of 6 years and 7 months’ imprisonment is a fair, just, and balanced sentence in all the circumstances of this case and in the circumstances of the defendant.
Ms Janice Kwan, SPP of the Department of Justice, for HKSAR Mr Lee Sim Summly, instructed by Eric Cheung & Lau, assigned by DLA, for the accused |
Cases cited in this judgment