HKSAR v. Liu Kam Chau

DCCC 733/2025

[2026] HKDC 1653

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 733 OF 2025

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REASONS FOR SENTENCE

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1.Mr Liu pleaded guilty before me to one charge of Attempting to traffic in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, and sections 159G and 159J of the Crimes Ordinance, Cap 200.

2.Particulars are that he, on 12 November 2024, at Customs Departure Hall, Lo Wu Control Point, New Territories, in Hong Kong, attempted to unlawfully traffic in a dangerous drug, namely 8.12 grammes of a solid containing 6.51 grammes of ketamine.

Facts admitted by Mr Liu

3.On 12 November 2024, at about 11:30 pm, Mr Liu, whilst on his way out from Hong Kong to the Mainland, was intercepted by a Customs officer at the Customs Departure Hall, Lo Wu Control Point, for customs clearance.

4.Upon search, the following were found on Mr Liu:

(a)  9 plastic bags containing a total of 8.12 grammes of a solid containing 6.51 grammes of ketamine (E1);

(b)  One plastic straw containing traces of a solid containing ketamine (E2); and

(c)  One paper packet containing traces of a solid containing ketamine (E3).

5.Mr Liu was arrested for trafficking in a dangerous drug.  Under caution, he admitted:

(a)  E1 was ketamine and belonged to him;

(b)  E1 was for self-consumption, while E2 and E3 were used for taking and sniffing ketamine; and

(c)  He bought E1 in Hong Kong and he did not have the contact method of the seller.

6.In a VRI, Mr Liu admitted he bought E1 in Mong Kok.

7.The total market value of E1 to E3 was estimated to be about $3,144.

Criminal record

8.Mr Liu has 4 previous convictions 3 of which were for possession of dangerous drug.

Antecedents

9.Mr Liu is aged 42 (40 at the time of the offence), worked as a labourer and resided in Tai Kok Tsui.

Mitigation

10.Mr Kenny Lau of counsel mitigated on behalf of Mr Liu.  The following is a summary of the mitigation submissions.

11.Before arrest, Mr Liu was living with his retired parents (both in their 80s).

12.Mr Liu had been working as a construction worker for about 20 years. Prior to arrest, he was earning about $40,000 a month.

13.Mr Liu pleaded guilty at the first opportunity.  He is entitled to 1/3 sentencing discount.

14.Mr Lau reminded the court of the six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

15.The tariff for 1-10 grammes of ketamine is 2 to 4 years’ imprisonment: HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, para 95.  The arithmetic starting point for 6.51 grammes of ketamine is 38.7 months’ imprisonment.

16.At the time of the offence, Mr Liu while carrying the dangerous drug was leaving Hong Kong for Shenzhen with plans to spend a few days there for leisure.

17.Mr Liu was a drug user since about 2003.  The drug seized was for his own consumption.  Mr Liu could consume about 3 grammes of ketamine a day. Before leaving Hong Kong, he bought the dangerous drug for about $3,000 in order to consume on the trip.

18.Where all or a significant part of the drug involved is for self-consumption, an additional sentencing discount of 10% to 25% could be given: HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, paras 14-19; HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, para 26.

19.The court retains a discretion to award a smaller sentencing discount even if the above threshold has not been met.

20.In HKSAR v Wong Shuet Hau & Anor [2002] 1 HKLRD 69, para 34, the Court of Appeal identified considerations to be taken into account when the issue of self-consumption is raised in mitigation.  The present case carries the following features:

(a)  The quantity of the drug was 6.51 grammes, packed in a total of 9 separate plastic bags;

(b)  A straw and a piece of paper containing traces of ketamine were found from Mr Liu;

(c)  The drug and the straw and paper mentioned were placed together inside a pack of tissue paper;

(d)  Mr Liu admitted under caution the drug was for his own consumption; he explained that the straw and the paper were used for the consumption of drug;

(e)  Mr Liu has 3 conviction records on possession of dangerous drug; according to Mr Liu, they all involved ketamine; and

(f)  Mr Liu was previously sentenced to Drug Addiction Treatment Centre.

21.Mr Lau asks for a lenient sentence on behalf of Mr Liu.

22.Upon enquiry by the court, Mr Lau submitted that since all of the drug was intended for self-consumption, the cross-border dimension should not play a part in sentencing.

23.Also upon enquiry by the court, Mr Lau indicated that Mr Liu will not give evidence to support his claim of self-consumption.

Sentence

24.I agree with the calculation of Mr Lau of the arithmetic starting point. I adopt 38 months’ imprisonment as the initial starting point.

25.On the topic of self-consumption, prosecution has not adduced expert evidence on daily consumption rate of the drug ketamine.  I am therefore obliged to consider what expert evidence I could find in previous cases that came before the court, at whatever level.

26.I found in HKSAR v Huang Jun Tao [2021] HKDC 1562, at para 20, expert evidence that fits Mr Liu’s claim of his daily consumption rate of ketamine.  I took into account his claim through mitigation of working as a construction worker with monthly earnings of about $40,000 and contrasted it with the estimated market value of the drug being little more than $3,000. When the foregoing is considered with the other features of the case as highlighted by Mr Lau in his mitigation submissions, I found it proved on the balance of probabilities that a significant proportion (but not all)  of the drug seized was for Mr Liu’s own consumption.

27.The reason why I did not find proved that all of the drug was for Mr Liu’s own consumption was that being a veteran of drug crime, he must have been aware of the huge risk involved of being caught carrying dangerous drug across border and of the associated penalty.  Why would a person of sound mind take such a huge risk if his only intention was to consume all of the drug?

28.In the absence of evidence from Mr Liu, I found that at least half of the drug was for distribution to other person(s)  either at a premium or at cost or for free.

29.For the above reasons, I will give Mr Liu an initial sentencing discount of 20%.  The starting point is now reduced to 30.4 months.

30.Next, I will consider Mr Liu’s role and culpability.  This comes in two folds.  First, there was no evidence he was going to make a profit on exporting (or trying to export)  the drug.  So I conclude that he was no more than a courier of drug: no enhancement in the starting point is warranted.  Secondly, he was trying to take drug out of Hong Kong: this constitutes a cross-border element which enhances his role and culpability: HKSAR v Raman Kapusamy [2024] 2 HKLRD 955, paras 61-68.

31.For the second factor, I increase the starting point to 33 months’ imprisonment and this will be the notional sentence after trial.

32.Mr Liu pleaded guilty in good time earning for himself the customary 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentence reduction.

33.As the last step in the six-step approach, I stand back to see if the resulting sentence is just, fair and balanced having regard to the offence and the offender.  The offence involves a repeated offender of drug-crime trying to take a significant amount of serious drug into the Mainland with at least half of it open for distribution.  Therefore, I am of the view that the resulting sentence is just, fair and balanced.

(Mr Liu, please stand)

34.The sentence for Mr Liu is 22 months’ imprisonment.