HKSAR v. Liu Ka Yan and Another
|
HCCC 20/2026 [2026] HKCFI 4970 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 20 OF 2026 -----------------
-----------------
--------------------------------- Transcript of the Audio Recording
COURT: The 1st defendant pleaded guilty before a magistrate for two counts of trafficking in dangerous drugs and one count of doing an act for the purpose of trafficking in a substance they believed to be a dangerous drug. The 2nd defendant pleaded guilty before a magistrate for one count of trafficking in dangerous drugs and one count of doing an act for the purpose of trafficking in a substance they believed to be a dangerous drug. The two defendants are committed before me for sentence. On 6 February 2024, Customs officers conducted an anti‑narcotics operation in Yau Kom Tau Village, Tsuen Wan. At around 1847, the defendant was intercepted by the Customs officers at the pavement of Po Fung Road. Upon search, packets of drugs were found inside a paper bag carried by the 1st defendant. They contained a total of 47.9 grammes of a solid containing 35.1 grammes of cocaine. Under caution, the 1st defendant said the drugs were given to her by her “契哥”, and she helps him to deliver the drugs to others for a reward of $1,000 per delivery. She took the drugs from a unit in Yau Kom Tau village where she got the keys for entrance. At about 1850, Customs officers escorted the 1st defendant to the said unit, using the keys of the 1st defendant to gain entry. Upon entering the unit, the 2nd defendant was seen dealing with suspected dangerous drugs, and upon search of the unit, dangerous drugs and paraphernalia were found. The drugs found in the unit were respectively a total of 787.9(786.9?) grammes of a solid containing 557.9 grammes of cocaine, and 154 grammes of a solid containing 5.47 grammes of ketamine. Besides, 898 grammes of phenacetin contained in plastic bags were also found amongst the packets of cocaine and ketamine. The paraphernalia found include electronic scales, plastic spoon, plastic bowl, gloves, and also resealable plastic bags. Under caution, the 2nd defendant said he was dealing with cocaine and ketamine, and the drugs were belonging to him. He was responsible for packaging, and the 1st defendant was responsible for distribution. The 2nd defendant would receive $12,000 as reward. The subject unit was rented by the 2nd defendant. The 1st defendant was cautioned again, and under caution she said the white substance in powder form and solid form was cocaine, and the transparent substance was ketamine. The estimated street value of the drugs involved is in total HK$896,100. The 1st defendant is now 30 years old. She has a son and a daughter. She received education up to Form 4 level. Prior to her arrest, she worked as a salesperson, and she has a clear record. The 2nd defendant is now 44 years old. He is in a relationship and have three children. He received education up to Form 4 level. Prior to his arrest, he worked as a casual warehouse worker, earning between 5,000 to 10,000 each month. He has six previous criminal records, two of which are drug-related offences. Trafficking in dangerous drugs is a very serious offence. A person convicted of this offence will inevitably face with an imprisonment term. In considering the suitable length of sentence, this court is to adopt the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and follow the guidelines set out in HKSAR v Huang Ruifang [2025] 2 HKLRD 138 for cocaine, and the case Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 for ketamine. In this case, Charge 2 involved two different kinds of drugs. In my judgment, a combined approach is obviously the appropriate way for determination of the proper starting point for sentence, and a global approach should be adopted in considering the overall sentence for all charges in respect of each defendant. Following the recent Court of Appeal case, HKSAR v Yau Kai Fung [2026] HKCA 885, it would be sufficient to crosscheck the result by way of the “Ratio Test” only. Mr Lau, counsel for the 1st defendant, and Ms Kong, counsel for the 2nd defendant, have helpfully set out in their written submissions the result arrived at applying the “Ratio Test”, following the relevant guidelines in respect of the respective quantity of the two kinds of drugs involved. I am not minded to recite here in detail the calculations done by counsel in arriving at the results. For the 1st defendant, she is facing three charges. For Charge 1, the appropriate starting point, taking into account the relevant quantity of cocaine, should be 6 years and 9 months’ imprisonment. For Charge 2, taking into account the total quantity of the two kinds of drugs, treating all the quantities of drugs as cocaine, the appropriate starting point should be 16 years and 3 months’ imprisonment. For Charge 3, I agree with the submission of counsel that benefit of doubt should be given to the defendants, and the relevant kind of drugs for considering sentence should therefore be ketamine. With such quantity, the starting point before reduction should be around 5 years’ imprisonment. Following the principles laid down in HKSAR Cheng Ling Ling, [2019] 3 HKLRD 797, and considering also the case HKSAR v Lam Hoi Yan [2026] HKCFI 1475, I would adopt a reduction of 40 per cent and reduce the starting point to 3 years’ imprisonment. For the 2nd defendant, the same consideration as mentioned above shall be equally applied. Regarding the role of the defendants, I am unable to accept that the 2nd defendant is a mere courier in that he was involved in renting the units for drug trafficking and also prepared and packaging drugs there. Although I am of the view that the 2nd defendant was not in a core position, an enhancement of 3 months’ imprisonment is appropriate to reflect his role. On the other hand, I accept that the 1st defendant was in a lesser role and will not impose any enhancement because of her role. Although the 2nd defendant has previous convictions, as this is the first time he committed the offence of trafficking in dangerous drugs, I see no reason to treat it as an aggravating factor. In the premises, as I mentioned above, I would adopt a global approach in sentencing and in my judgment, the overall starting point in respect of the nature of the drugs and overall quantities of the drugs are respectively 16 years and 9 months for the 1st defendant and 16 years and 6 months for the 2nd defendant. The starting point for the 2nd defendant shall be enhanced to 16 years and 9 months for his role. Apart from the defendants’ guilty plea, despite what had been said by their counsel in the mitigation, I can see no other valid mitigating factor. To conclude, for the 1st defendant, the starting point for Charge 1 is 6 years and 9 months’ imprisonment, for Charge 2, 16 years and 3 months, and Charge 3, 3 years’ imprisonment. Taking into account of her guilty plea, the sentences shall be reduced to respectively 4½ years, 10 years and 10 months, and 2 years’ imprisonment. To arrive at the overall global sentence of 11 years and 2 months, which is two-third of 16 years and 9 months’ imprisonment, I order that 4 months in Charge 3 be run consecutively to Charge 2 and all other sentences be run concurrently, making a total of 11 years and 2 months’ imprisonment. For the 2nd defendant, starting point for Charge 2 is 16 years and 3 months’ imprisonment to be enhanced by 3 months to 16 years and 6 months because of his role. And for Charge 3, 3 years’ imprisonment. Taking into account his guilty plea, the sentence will be reduced to respectively 11 years’ imprisonment for Charge 2 and 2 years’ imprisonment for Charge 3. And to arrive at the overall global sentence of 11 years and 2 months, I order that 2 months in Charge 3 be run consecutively to Charge 2 and all other sentences be run concurrently.
|
Cases cited in this judgment