HKSAR v. Yiu Wah Wai

DCCC 833/2025

[2026] HKDC 1336

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 833 OF 2025

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REASONS FOR SENTENCE

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1.At around 4:55 p.m. on 6 January 2025, PC61503 (“PW1”) intercepted the Defendant, who was acting furtively outside Hing Tat Mansion, 1-5 Tung Ming Street, Sau Mau Ping, Kowloon.  Upon search, PW1 found the following in D's black backpack:-

(a) A plastic box, containing 16 plastic bags which contained a total of 2.20 grammes of crystalline solid containing 2.20 grammes of methamphetamine hydrochloride;

(b) A small bag containing many resealable plastic bags;

(c) A straw;

(d) An electronic scale; and

(e) 3 notebooks with handwritten alias and numbers.

2.At 5:10 p.m., PW1 arrested the Defendant for “trafficking in dangerous drugs”.  Under caution, the Defendant admitted the offence and stated that he had been gambling on game machines and was in debt, and that his creditors had asked him to deliver “goods” in order to settle the debts.  He asked for a chance (“我都係喺機舖賭錢爭人錢，佢哋要我幫手帶貨，先可以無數，比次機會啦。”).

3.The Defendant was then brought to Sau Mau Ping Police Station.  At about 6:23 p.m., upon body search at Sau Mau Ping Police Station, PW1found 3 plastic bags in the Defendant’s right pocket which contained a total of 2.38 grammes of a crystalline solid containing 2.37 grammes of methamphetamine hydrochloride.  PW1 arrested the Defendant for possession of dangerous drugs.  Under caution, the Defendant admitted the offence and stated that those 3 packets were all ‘goods’ he would deliver for another to pay off his debts (“果三包都係幫人帶貨，還數。”).  The Defendant remained silent in a subsequent cautioned recorded interview.

4.The estimated street value of the dangerous drugs seized was around HK$2,295.

Defendant’s Antecedent Statement and Mitigation

5.The Defendant is 41 years old and lived with his 70 year old mother at the time of the offence.  His siblings had moved out of the family home.  He was a construction worker with a salary of approximately $20,000 per month.  He has completed Form 1 education, and has 15 previous convictions at the time of the offence, with 2 similar convictions of Smoke/Inject Dangerous Drugs and Possession of Dangerous Drugs in 2017 and 2018 respectively. 

6.Defence urges the Court to consider the Defendant’s guilty plea thereby saving Court’s time, and that he was the only person caring for his elderly mother at home.  It had also been claimed that about half of the dangerous drugs in both charges 1 and 2 were for the Defendant’s consumption.  This will be dealt with in a separate section of these Reasons.

Sentencing Guidelines

7.Charges 1 and 2 concern the same kind of dangerous drugs, i.e. ice.  In accordance with sentencing guidelines enunciated inHKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the starting point for trafficking under 10g of ice is 3 to 7 years’ imprisonment.  According to an arithmetic calculation, the starting point for 2.2g, 2.37g and 4.57g (being the total quantity) of ice should be 46.56, 47.38, and 57.94 months’ imprisonment.

8.I have considered the Defendant’s role as a courier of dangerous drugs upon another’s instructions.

Sentencing Considerations

Claim of Partial Consumption

9.The Defendant in his mitigation claims that he was a drug addict of ice at the time of arrest, and that about half of the ice for both Charges 1 and 2 were for self-consumption.  There was no indication from the Defence as to the pattern and quantity of consumption, the cost each time, and the length of the history of drug abuse.

10.The Defendant’s claim that he is a drug user is partially supported by the urine test report from the Correctional Services Department, which indicated presence of ice in the urine sample collected on 9^th January 2025, i.e. 3 days after his arrest. 

11.It is one matter for a Defendant to be a drug user, having considered the presence of ice in his urine 3 days after arrest, and another matter for him to have with him part of the drugs seized for his consumption as opposed to trafficking.  I note that the Defendant did not claim that the ice in his urine sample originated from the 2 batches of dangerous drugs in question. 

12.In HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, the Court of Appeal stated that:

“… in drugs cases, where traffickers are renowned for their attempts to circumvent the rigour of the courts’ stern approach to drug offences, sentencers will need to examine with particular care, any assertion by a proved or self-confessed trafficker, that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence; they will remember that true cases of this kind, where the purpose of possession is mixed, will almost always involve small quantities; and they will have to bear in mind that the quantity accepted, as having been intended for self-consumption, carries a sentence in any event, and that this might itself be aggravated for the latent risk factor, so that in most true “mixed” cases, the difference in sentence, if any, will be slight.”

13.The case of Wong Suet Hau also stated that it is only when “a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.”

14.The Defence concedes that the claim of self-consumption is a bare assertion, and that the Defendant cannot provide conclusive, objective and concrete information to prove the quantity of drugs for his consumption. 

15.I shall proceed to deal with the considerations stated in Wong Suet Hau, which the Court of Appeal states that the sentencing court would usually be able to determine without a Newton hearing. 

16.The factors to be considered include:

(a) the quantity of the drugs, and if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict, or is otherwise accepted to have been a habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs, otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.

17.I have considered the following:

(a) the narcotic content of the drugs for the 2 charges being 2.2 grammes of ice and 2.37 grammes of ice. The street value of the drugs amounted to around $2,295;

(b) The drugs were contained in 16 packets, and there was also a small bag containing many empty resealable plastic bags, a straw, an electronic scale, 3 notebooks with handwritten alias and numbers;

(c) The drugs were contained in 3 plastic bags respectively for Charge 2;

(d) It was not claimed by the Defendant that the content of any specific packet or plastic bag was for his own consumption;

(e) Trafficking paraphernalia were found including many empty resealable plastic bags, an electronic scale, 3 notebooks with handwritten alias and numbers except maybe a straw for Charge 1, whereas the straw may serve as consumption tool or packing tool;

(f) the Defendant was on the street delivering drugs;

(g) The Defendant claims that he was an addict at the time of the offence, and that the urine sample taken from the Defendant 3 days after his arrest contained ice;

(h) The Defendant had 2 previous conviction relating to consumption or possession of dangerous drugs in 2017 and 2018. He was sentenced to 4 months and 3 weeks, and 16 months’ imprisonment for the said similar convictions. He was never sent to DATC for any of his previous convictions.

(i) The Defendant stated under caution for Charges 1 and 2 that he was delivering the ‘goods’ to pay off his debts. For Charge 2, he specifically stated that that the 3 plastic bags of ice found were all ‘goods’ he delivered for another. He had never claimed under caution that any part of the drugs in either Charge 1 or Charge 2 were for his own consumption;

(j) There is no information on the consumption pattern and quantity except a bare assertion of partial consumption;

(k) The Defendant claims in mitigation that was a construction worker earning approximately $20,000 a month; and

(l) no information had been provided as to whether the Defendant was financially responsible for his mother.

18.After considering the above, I am of the view that the Defendant’s claim is so incredulous that it can be rejected without the need to conduct a Newton hearing.  The said claim is nothing but a bare assertion, with no particulars on consumption pattern and cost, and the circumstances under which the portion claimed to be for his consumption obtained such nature.  There was simply no basis to support the claim of approximately half of the drugs in Charges 1 and 2 for self-consumption.  It appears to be a convenient and random figure that came up simply as a calculated move to reduce the sentence.

19.The first time that the Defendant claims partial consumption of the drugs seized is at the sentencing stage.  Even more telling is the fact that the Defendant had admitted the drugs for both Charges to be delivered on instructions for others, and for Charge 2 specifically referring to the 3 plastic bags of drugs found. 

20.The presence of the straw concerning Charge 1, as stated, is neutral as there were many empty resealable plastic bags, an electronic scale, and some notebooks with alias and numbers.  These are definitely items of packaging or repacking of drugs, and the straw could be used in the packaging procedure.  This conclusion is also considered in light of the lack of reference to self-consumption under caution, as well as admission of delivery of the drugs in Charge 1.

21.It must be borne in mind that it is far too easy for a drug trafficker who abuses drugs to make such a claim in the hope of getting a sentencing reduction.  Considering what has been stated above, it is obvious that the claim is a bare assertion, and is wholly inconsistent with the circumstances, in particular what was said under caution which was the Defendant’s first reaction. 

22.Considering the analysis above, I therefore reject the Defendant’s claim.  I shall refuse to reduce the Defendant’s sentence on the ground of partial self-consumption.

23.I have considered the Defendant’s guilty plea and his criminal record with 2 records of drug offences, and all mitigation advanced on his behalf. 

24.Due to the Defendant’s guilty plea, I will reduce the starting points of 46 months’ for Charges 1 and 47 months’ for Charge 2 by one third, to 30 months’ imprisonment for Charge 1 and 31 months’ imprisonment for Charge 2.  I do not consider that there are any circumstances for further discount of sentence.  Despite his health issues as evidenced by the medical reports submitted, he was able to work as a construction worker prior to the offence, and the reports also indicated that he had defaulted most if not all follow up sessions.

25.I have also considered the totality principle.  I shall order that 7 months of Charge 1 to be served consecutively to Charge 2.  The Defendant is therefore sentenced to a total of 38 months’ imprisonment.