HKSAR v. Leung Ka Shu

HCCC 173/2026

[2026] HKCFI 5041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 173 OF 2026

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording

of the Sentence in the above Case

---------------------------------

COURT: I will not repeat the charge and the facts of this case, as they have just been read to the defendant in open court.

The defendant was born in China in 1964. He is now 62 years old. He was educated in China up to Form 4. He used to work at a construction site. He suffered from nasal cancer and was a drug addict. The fact that he was a drug addict can be seen from his record. He altogether on four occasions convicted of five counts of offences involving dangerous drugs.

All the convictions concerning dangerous drugs are simple possession on smoking dangerous drugs. With no previous convictions of trafficking in dangerous drugs nor keeper of a divan.

From his background and his record, I do not see there is any mitigation except his plea of guilty in the Magistrates’ Court. I will also not enhance the sentence that I have in mind because of his record.

In Wan Lau Mei [2014] 4 HKC 25, in that case the applicant plead guilty to two counts of trafficking in dangerous drugs. The subject of the 1st charge was 2.96 grammes of a solid containing 2 grammes of cocaine found on her person. The 2nd charge related drugs found on the same day in a hotel room in which the applicant was residing.

There were various quantities of different types of drugs, namely, 3.39 grammes of a powder containing 2.75 grammes of ketamine, 6.28 grammes of a crystalline solid containing 6.05 grammes of methamphetamine hydrochloride, 7.03 grammes of a mixture containing 5.47 grammes of heroin hydrochloride, and 11.49 grammes of a solid containing 8.62 grammes of cocaine.

The applicant was sentenced to 1 year and 4 months’ imprisonment for the 1st charge, and 4 years and 8 months’ imprisonment for the 2nd charge. It was further ordered that the sentence for the 2nd charge run consecutive to the sentence for the 1st charge, thus making it a total sentence of 6 years’ imprisonment. It is against these sentences that the applicant appealed to the Court of Appeal.

McWalters J (as he then was) give judgment for the court, said at paragraph 37:

“The judge noted that the most potent drug was ‘Ice’, and so decided that he would use the tariff for that dangerous drug. But the ‘Ice’ made up only approximately one quarter of the total quantity of narcotic. But the heroin and cocaine, which are treated identically for dangerous purposes, made up 16.09 grammes of the 24.8 grammes, approximately 65 per cent of the total quantity. The difference in potency between ‘Ice’ and heroin and cocaine is not so great as to justify, in these circumstances, the use of ‘Ice’ tariff instead of the heroin/cocaine tariff. In our view, the judge erred in preferring the former tariff over the latter.”

In the present case, I will ignore, for the time being, midazolam. The quantity of methamphetamine in this case is about 37.82 per cent of the bulk of the drugs, whereas heroin/cocaine is 62.18 per cent. I would follow what is said in Wan Lau Mei, use the guideline for heroin and cocaine. The judgment continues at paragraph 38:

“Taking a global view of the drugs being trafficked, the appropriate course was recognised that there are three serious and potent drugs in the applicant’s possession, heroin, cocaine and ‘Ice’. Adding the ‘Ice’ to the cocaine and heroin produce a total narcotic of 22.14 grammes of serious and potent drugs and the applicant should have been sentenced for that amount using the heroin/cocaine sentencing tariff. Ketamine is too different a drug from heroin, cocaine, and ‘Ice’ for it to be included with them and the only issue is whether a separate additional sentence should be imposed for it.”

Paragraph 40:

“We believe that the proper way to have regard to it is after an initial starting point had been identified for the 22.14 grammes of cocaine, heroin, and ‘Ice’ when consideration is given to whether this initial starting point should be enhanced to allow for the fact that the applicant was trafficking in a number of different types of drugs.”

At this stage, account can be taken of the fact that among the drugs is ‘Ice’, which is a more potent drug than heroin and cocaine and there is a small amount of ketamine. I found this analysis by the Court of Appeal, in the judgment, Wan Lau Mei, is very helpful and assists the court in arriving a proper sentence in the present case.

Wan Lau Mei was decided before Herry Jane Yusuph. Herry Jane Yusuph had laid down the six steps in sentencing for trafficking in dangerous drugs. Taking into consideration the six steps, the Court of Appeal in the case of Yau Kai Fung, CACC 208/2024, the Court of Appeal at paragraph 40:

“Under Herry Jane Yusuph, at Steps 1 to 3 of a structured approach, the court must identify the applicable guideline bands, assess the offender’s role and culpability, and fix a notional sentence after trial. In cases involving a cocktail or combination of drugs, this exercise necessarily requires translating more than one band into a single notional starting point. The primary task of fixing that notional sentence remains a matter of principled evaluative judgment informed by the guideline authorities. Each drug is first matched to its own guideline band. The sentencing court then assesses, in composite terms, the overall seriousness of the offending, considering both the potency and the quantity of each drug, and the relative contribution of hard and soft drugs. It then identifies a single notional sentence after trial that falls within a range consistent with the engaged bands.

Within that structure, the ratio test is appropriately deployed in a secondary role as a cross check. When properly applied, it uses, rather than displaces, the drug specific guideline structure. It is less complex and elaborate than the conversion test, and more precise and structured than the absurdity test. It may assist the court in testing the provisional notional sentence for internal coherence and consistency with the underlying guideline bands. However, it should not be treated as a substitute for the guideline-based evaluative exercise required at Steps 1 to 3.”

Guided by these authorities, for Charge 2, I adopt a combined approach and in calculating the notional starting point, I ignore midazolam. The total narcotic ‘Ice’, heroin, and cocaine is 43.52 grammes and for this quantity of heroin or cocaine, the sentence is about 7 years and 6 months.

The role of the defendant is not a simple courier. He was supplying drugs to others. There is also a very significant quantity of a more potent drug, methamphetamine hydrochloride. The quantity of methamphetamine is 16.46 grammes which represents about 38 per cent of the bulk of drugs. I also take into consideration the presence of midazolam and more importantly that drugs was mixed, in that heroin was mixed with midazolam.

There is 0.29 grammes of a mixture containing 0.13 grammes of heroin hydrochloride and traces of midazolam. I will enhance the starting point that I have adopted, 7 years and 6 months by 6 months in view of his role in supplying drugs to others. I further enhance it by a year to take into consideration the more potent drugs of ‘Ice’ which is of substantial quantity and also there is four types of drugs and a mix of heroin hydrochloride and midazolam. So my notional starting point after trial is one of 9 years.

According to the calculation by the prosecution agreed by the defence, under the ratio test the sentence will be around 8 years and 2 months. I counter check my notional starting point after trial which is one of 9 years against the figure from ratio test. I do not think that I should make any adjustment to my starting point as the ratio test calculation did not take into account the role of the defendant nor the mixing of drugs as well as four types of drugs.

As I said there is no mitigation in your case except your plea of guilty. So for the 2nd count, you are sentenced to a term of 6 years’ imprisonment. As to the 1st count, keeping a divan, from the authorities it seems 2 years as a starting point is about right. As you have plead guilty in the first available opportunity, I give you one-third discount and that brings the sentence for the 1st count down to 16 months’ imprisonment.

The final matter I have to decide is whether the two sentences should run concurrently as urged upon by your counsel. In the case of Lau Ka Fai Coffee, CACC 3/2022, this is an application for leave to appeal against sentence. The matter was heard before a single judge, Zervos JA.

The facts of the case are these. The applicant plead guilty to one charge of keeping a divan and one charge of trafficking in dangerous drugs. He was dealt with in the District Court. The District Court judge sentenced him to 16 months’ imprisonment for keeping a divan and 30 months’ imprisonment for trafficking in dangerous drugs.

The judge ordered 12 months of the sentence on the keeping a divan to run consecutively to the charge of trafficking in dangerous drugs resulting in total sentence of 42 months’ imprisonment. It was against this that the applicant appealed to the Court of Appeal. In refusing grant of leave, Zervos JA commenting on the consecutive or concurrent term of imprisonment, had this to say at paragraph 10:

“As for Ground 2, Madam Ho complains that the judge reflected the applicant’s role in the sentences of both charges, and by ordering a consecutive element of 12 months thereby imposed a double penalty. She submits that the judge took into account under Charge 1 that the applicant’s role was supplying drugs to others, and under Charge 2 she enhanced the applicant’s sentence by 6 months for his role and repeat offending. Her submission regarding Charge 2 is not correct. The judge enhanced the applicant’s sentence by 6 months because there was more than one type of drug involved and his repeat offending.”

Paragraph 11:

“It has been held that sentences for keeping a divan and trafficking in dangerous drugs which were being consumed in a divan could be ordered to run consecutively, subject to the totality principle, since the acts of supplying drugs to others and running a divan were different criminal matters to run.

Charge 1 of keeping a divan and Charge 2 for trafficking in dangerous drugs were separate and distinct offences for which it was appropriate to provide its consecutive element, which the judge ordered after taking into account the totality principle. The applicant played a principal role in keeping the divan which was quite established and elaborate in its operation. There were 18 people in the flat and clearly they were there for the purpose of consuming drugs.”

Guided by this authority, I am afraid I cannot accede to Mr Ching’s submission that the two terms of imprisonment should run concurrent. On the other hand, if the sentence on Charge 1 is to run consecutive, wholly consecutive to the 2nd charge, it is too long.

Taking into consideration the principle of totality, I likewise order 12 months on Charge 1 to run consecutively to Charge 2. So the total term of imprisonment that I impose is one of 7 years.