HKSAR v. Kong Shing Chi
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CACC 283/2025 [2026] HKCA 1672 On appeal from [2025] HKCFI 3380 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 283 OF 2025 (ON APPEAL FROM HCCC NO 40 OF 2025) _______________
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________________ J U D G M E N T ________________ 1.This case concerns a drug trafficking ring consisting of Fan Kam Hing (Fan), the applicant (D2 at trial) and Ng Ho Lam (D1 at trial), who were aged 25, 18 and 15 respectively at the material times. From the agreed facts, Fan was the ringleader who recruited the applicant, and the applicant in turn recruited Ng. Fan taught the applicant and Ng how to deal in and traffic dangerous drugs. They operated out of an Inn in Temple Street, Kowloon (the Inn). Customers would come to the Inn and consume cocaine at the premises. They would pay HK$350 for a packet containing 0.165 gramme of cocaine (from the seized packets of drugs, the quantity of narcotic in each packet was agreed between the parties to be 0.144 gramme). If Ng did not know the customer, he would take a photograph of him or her from the CCTV and send it to Fan via WhatsApp for his approval to admit the customer into the Inn to buy drugs. The three of them had a WhatsApp group chat through which they communicated with each other. 2.The Inn operated 24 hours a day and shifts were shared between the applicant and Ng. Ng was responsible for calculating the daily revenue of the business. At the end of his shift, he would put the receipts and the proceeds of the dangerous drugs sales into an envelope and place them in a mailbox in the lobby of the building. The applicant was responsible for bringing the dangerous drugs to the Inn and packaging them into packets. Fan paid them HK$500 a day and a commission of HK$30 for every packet of drugs sold. According to Ng, he had received commissions of about HK$4,000 to HK$5,000 each week, and by the time of his arrest he had earned about HK$27,000 in total from mid-February to mid-April 2022. He stated that they sold approximately 30 packets of drugs every day. He further stated that on 12 April 2022 they moved the drug trafficking business from the Inn to a flat in Mirador Mansion on Nathan Road, Tsim Sha Tsui (the flat). 3.On 17 April 2022, Ng had been instructed by Fan to deliver 100 packets of cocaine to a customer. He was stopped by police officers in a shop in Tsim Sha Tsui, Kowloon. The police officers recovered the drugs and found in his possession HK$3,154.50 in cash and one mobile telephone. He was arrested and cautioned, and in a subsequent video-recorded interview in the presence of his mother, he admitted his involvement in the drug trafficking ring and that the cash found on him was the proceeds of trafficking in dangerous drugs. 4.On 18 April 2022, the police searched the flat, where they found, inside a shoulder bag, 42 plastic bags and 26 plastic bags of cocaine, together with a notebook recording the turnover of the drug trafficking business, two glass inhalers and a food order receipt in Ng’s name. 5.On 22 April 2022, police officers located the applicant and arrested and cautioned him for his involvement in the drug trafficking ring. They found in his possession a mobile telephone which contained the contact details of Fan and the WhatsApp group chat with Fan and Ng. 6.In a subsequent video-recorded interview, the applicant admitted his involvement in the drug trafficking ring. He stated that he had known Fan for one or two years and that Fan subsequently introduced him to the drug trade in mid-December 2021. He was unemployed at the time. He admitted that he had sold drugs in the Inn for about three to four months before the drug trafficking business was moved to the flat. He said he sold between 10-odd and 70-odd packets a day. He also admitted his involvement in the drug trafficking operations at the flat. He said that Ng would work the day shift and he would work the night shift, from 9:30 pm to 9:30 am. He said he received a weekly commission of several thousand dollars in addition to his daily wage of HK$500. As with Ng, he stated that he would tabulate the proceeds of the drug transactions of his shift and put them in the mailbox of the flat. When they ran out of packets of drugs, he would contact Fan, who would arrange a taxi delivery of additional drugs, which he would then measure for packaging into packets. He was remunerated as stated by Ng. 7.The applicant and Ng were charged with the following offences: trafficking in a dangerous drug against Ng for 14.5 grammes of cocaine that he was delivering on 17 April 2022 (Count 1); trafficking in a dangerous drug against both Ng and the applicant for 10.03 grammes of cocaine found in the flat on 17 April 2022 (Count 2); and conspiracy to traffic in a dangerous drug, namely cocaine, against Ng and the applicant between an unknown day in December 2021 and 17 April 2022 (Count 3). Fan was originally charged with two conspiracies with the applicant on 17 April 2022 and 18 April 2022 respectively. I am informed that those charges against Fan were subsequently withdrawn based on legal advice that there was insufficient evidence against him. I will return to this matter later in my judgment. 8.The applicant and Ng appeared before ST Poon J (the judge) for sentence, having earlier entered pleas of guilty to the charges they respectively faced. Taking into account Ng’s age at the time of the offences and his timely guilty pleas, the judge sentenced him to 42 months’ imprisonment on Count 1, 40 months’ imprisonment on Count 2, and 8 years and 2 months’ imprisonment on Count 3. He adopted a starting point of 10 years and 8 months’ imprisonment in relation to Count 3, which he reduced by 1 year and 6 months for Ng’s young age and a further one year for the fact that Ng joined the conspiracy at a later date. He ordered that the sentences be served concurrently, resulting in a total term of 8 years and 2 months’ imprisonment. 9.In sentencing the applicant, the judge sentenced him to 40 months’ imprisonment on Count 2 and 10 years’ imprisonment on Count 3, to be served concurrently. On Count 3, he adopted a starting point of 10 years and 8 months’ imprisonment, which he reduced by 8 months for the applicant’s demonstrated genuine remorse, relatively young age and clear record. 10.The applicant applies for leave to appeal against his sentence. He only challenges his sentence for Count 3, alleging that the judge’s calculation of that sentence was not in his best interests. 11.In sentencing the applicant and Ng on Count 3, the judge followed the sentencing approach set out in HKSAR v Herry Jane Yusuph[1] and applied the relevant principles laid down in HKSAR v Tsang Ka Wing[2] for determining the appropriate starting point in respect of an offence of conspiracy to traffic in an unspecified quantity of dangerous drugs. In determining the sentence for this conspiracy charge, the judge carefully assessed the quantities of drugs involved during the conspiracy period and estimated that the total quantity was about 590 grammes of cocaine. After an extensive review of the evidence, the judge concluded that:[3]
12.The judge then applied the revised guidelines in HKSAR v Huang Ruifang (No 3) [4], under which this quantity of cocaine narcotic fell within the band of 500 to 1,500 grammes, corresponding to a sentence of 16 to 20 years’ imprisonment. An arithmetic calculation for 590 grammes of cocaine narcotic corresponded to a sentence of 16 years and 4 months’ imprisonment in the case of a mere courier or storekeeper. The judge considered that the scale of the operation was not small, that the conspiracy lasted for more than 3 months and that it involved a large quantity of cocaine sold to customers for consumption on the premises. Taking into account the scale of the operation, the judge adopted a starting point of 16 years’ imprisonment, which was generous in the circumstances, given that the role and culpability of the applicant included his recruiting Ng, who was 15 years of age, and packaging and selling drugs to customers. Admittedly, he did this under the influence and instructions of Fan, an older person. However, this does not excuse his conduct, which was extremely serious, involving maintaining a drug den and actively delivering and selling drugs to others. 13.A matter that goes to the credit of both Ng and the applicant is that they cooperated with the police officers and gave full and frank accounts of their involvement in this drug trafficking ring. It is fair to say that the most serious offence of conspiracy to traffic in a dangerous drug was primarily based on their admissions under caution. 14.I cannot find any basis on which the applicant can challenge the judge’s approach in sentencing him, who was clearly mindful of his young age and the influence exerted over him by Fan. The judge made a number of allowances in his favour, including treating the sentences on Counts 2 and 3 as concurrent. 15.I should say, from the papers before me and the applicant’s demeanour and presentation in court, that he comes across as a decent young man who has fallen in with bad company. I have encouraged him to take up an educational course during the remainder of his prison sentence, in the hope that he does not return to the company that got him into this trouble in the first place. His mother was present in court and was clearly concerned about her son and displayed loving support for him. 16.It follows from what I have said that I do not find that the applicant has a reasonably arguable ground of appeal against his sentence. His application for leave to appeal against sentence is therefore refused. 17.There is one matter that I wish to mention. It concerns the fate of Fan. I am only in a position to assess the case against Fan on the papers presented before me. I was informed that the applicant and Ng have not indicated a willingness to give evidence against Fan. However, there is the evidence of CCTV footage of the Inn and the flat in which Fan has been identified at the places where the drug trafficking activities took place. More importantly, there are the telephone records of the applicant and Ng regarding their discussions with Fan concerning the drug trafficking activities at the two premises, together with a notebook detailing the sale transactions. On what the applicant and Ng have told the authorities, Fan was actively engaged in the drug trade, preying on young persons to maintain a drug den and to deliver and sell drugs to customers. This is a matter that requires the attention of the relevant authorities. 18.I direct that a copy of my judgment be provided to the Director of Public Prosecutions and the Commissioner of Police for their consideration of the case against Fan and any further action that is warranted.
Ms Clara Ma, SPP, of Department of Justice, for the respondent The applicant appeared in person [1] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. [2] HKSAR v Tsang Ka Wing [2017] 5 HKLRD 799. [3] Appeal Bundle (AB), 18B-I. [4] HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138. | ||||||||||||||||||||