HKSAR v. Ke Shangtu
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DCCC 688/2025 [2026] HKDC 1690 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 688 OF 2025 ____________
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REASONS FOR SENTENCE The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is methamphetamine hydrochloride (commonly known as "ICE"). Summary of Facts 2.About 1:53 a.m. on 20 November 2024, PC 27663 (PW1) stopped the defendant for enquiry at Fa Yuen Street near Nelson Street, Mongkok. When PW1 searched him, the defendant threw a piece of tissue paper on the ground. Two plastic bags which contained a total of 11.9 grammes of a crystalline solid containing 11.7 grammes of methamphetamine hydrochloride (collectively E1) were wrapped in that piece of tissue paper. 3.PW1 arrested the defendant for "trafficking". Under caution, the defendant claimed that he was carrying E1 and waiting for his friend to come back to get it. Mitigation & Sentence 4.The defendant is 45 and has one conviction record involving an immigration offence. With her usual fairness, Ms. Ng for the prosecution informed me that after arresting the defendant for "trafficking", the police discovered that he is an illegal immigrant. He was first dealt with in the magistrates' court. For the "illegal remaining" charge, he was sentenced to 15 months' imprisonment on 9 May 2025. The present "trafficking" charge was later transferred to the District Court. For sentencing purposes, I treat the defendant as having a clear record. 5.The defendant informed me that he is married with a son (aged 12). Prior to his arrest, he worked as a butcher in Shenzhen earning RMB20,000 per month. The defendant claimed that his wife has filed for divorce because of the present case. In mitigation, the defendant explained that he came to Hong Kong to buy drugs because it was difficult to get them in the mainland. He claimed that he had purchased 2 packs: one for his own consumption[1] and the other to hold for a friend (who did not show up). 6.Drug abuse has always been a problem in our society. A clear message must be conveyed to the general public that "drug trafficking" (even "sharing" drugs with friends) is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment. The Court of Appeal has on numerous occasions stressed that there is no difference between "social trafficking" and "commercial trafficking" in terms of sentencing[2]. "The 'friend' who starts off or perpetuates another's abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted." [3] 7.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ICE (see HKSAR v Tam Yi Chun [2014] 3 HKLRD 691). For 10 to 70 grammes of ICE, the sentence ranges from 7 to 11 years' imprisonment[4]. 8.Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles[5]. His CSD urine test report showed that urine sample collected on 23 November 2024 (3 days after his arrest) was amphetamine positive. In other words, he was probably an ICE user. Whilst the defendant's story of holding a pack for his friend is a mere assertion, the prosecution has no evidence to rebut it either. Having balanced all factors, I give the benefit of doubt to the defendant. I find it may be true that he was holding a pack for a friend, though not necessarily the smaller pack[6]. I am aware that Ms. Ng does not accept the defendant's claim that the bigger pack[7] was for his own consumption. 9.The defendant trafficked in 11.7 grammes of ICE. Applying a strict arithmetical approach, the appropriate starting point is 85 months' imprisonment, which I would adopt. I will grant a discount of 13 months[8] for self-consumption, reducing the starting point to 72 months[9]. With the timely guilty plea, the sentence becomes 48 months. Apart from this, I see no other mitigating factors which warrant any further reduction. 10.The defendant has already finished serving his sentence for the "illegal remaining" charge. Even if both the "illegal remaining" and the "trafficking" charges were dealt with together, the sentences would still have to be served consecutively[10]. To reduce the harshness, I give a further discount of 2 months. I sentence the defendant to 46 months' imprisonment.
[1] The bigger pack. [2] HKSAR v Wong Suet Hau [2002] 1 HKLRD 69; HKSAR v Wong Sze Tung [2015] 4 HKLRD 836; and SJ v Chan Suet Ping [2018] 1 HKLRD 305. [3] Wong Suet Hau (supra), paragraph 51, p.85. [4] The present case predates HKSAR v Huang Ruifang [2025] 2 HKLRD 138. [5] See HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121; Wong Suet Hau (supra); and HKSAR v Cheuk Kin Man CACC 294/2009 (English translation). [6] According to Ms. Ng, it weighed 3.8 grammes at the police station (together with the plastic bag). [7] It weighed 10.06 grammes at the police station (together with the plastic bag). [8] A 15.29% discount of the 85-month starting point. [9] In Chow Chun Sang (supra), Yeung VP held "…when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain…" (para.19, p.1126) In HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, Zervos JA held "We should point out that a sentencing court, in any event, has a discretion to discount a sentence to reflect an element of self-consumption." (para.50, p.829) |
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