COURT: The defendants pleaded guilty before a magistrate to two counts of trafficking in dangerous drugs. They were committed before me for sentence.
On 9 October 2023 at around 10.10 in the evening, the 1st defendant was found inside Room 1, Flat A, Jin Xiang Hostel in Yau Ma Tei when police officers raided there. Upon search of the room:
(1) six plastic bags containing 5.85 kilogrammes of a solid containing 103 grammes of 2-flurodeschloro-N-ethyl-ketamine (hereinafter named “FDNK”) and traces of methamphetamine;
(2) four plastic bottles containing a total of 2.82 kilogrammes of a liquid containing 9.95 grammes of methamphetamine; and
(3) three carpets containing a total of 2.32 grammes of a solid containing 0.19 grammes of methamphetamine were found.
An induction stove, a metal pot with lid containing traces of methamphetamine, and an electronic scale were also found.
Messages between the 1st and 2nd defendants alluded to trafficking of dangerous drugs were found in the 1st defendant’s phone records, including, amongst others, that the 2nd defendant told the 1st defendant another named person will teach him how to transform the carpets into ‘Ice’, and told the 1st defendant to pay HK$20,000 to that person’s bank account after he finished the work.
In a subsequent video-recorded interview, the 1st defendant admitted to be storekeeping the carpets and tools for the 2nd defendant on the 2nd defendant’s instructions. The 1st defendant would receive HK$30,000 as reward for delivering drugs for the 2nd defendant.
The police conducted investigation on the CCTV footages in the vicinity and successfully located the 2nd defendant. Upon arrest and under caution, the 2nd defendant admitted that he supplied the drugs to the 1st defendant.
The 1st defendant is now 23 years old. At the time of the offence, he was 20. He received education up to Form 5 level. According to Ms Lau, counsel for the 1st defendant, the 1st defendant previously worked at a convenience store and also as a restaurant waiter, earning 7 to $8,000 per month. Prior to his arrest, the 1st defendant was unemployed.
The 1st defendant has one previous conviction of possession of dangerous drug, for which he was sentenced to the Drug Addiction Treatment Centre in April 2023. He was released in October 2023.
In mitigation, Ms Lau submitted that the 1st defendant suffers mental conditions including hyperactivity, attention deficit disorder and early-onset schizotypal disorder. It is Ms Lau’s submission that his mental condition contributed to poor impulse control and heightened susceptibility to pressure or manipulation by third parties. And although he knew that it was wrong to commit the crime, he did not appreciate that it was so serious. It is Ms Lau’s submission that the 1st defendant’s mental conditions made him more gullible and easily susceptible to persuasion by the 2nd defendant.
Ms Lau submitted that the rehabilitation of the 1st defendant has been promising in that he has finished the computer course and green card safety training course of the Correctional Services Department during his remand. He is extremely remorseful and his parents are very supportive of him. The 1st defendant has written a letter to the court pleading for a lenient sentence so that he can reintegrate into society as soon as possible.
The 2nd defendant is 62 years old. He was born in Hong Kong and has completed his primary education. He works as a casual transportation worker, earning $10,000-odd per month. He is divorced and has two children, aged 18 and 15. The 2nd defendant has five previous convictions. Two of them are trafficking in dangerous drugs, for which he received a total sentence of 16 years’ imprisonment in 1994.
Mr Wong, counsel for the 2nd defendant, submitted a mitigation that although the 2nd defendant has a history of drug addiction, he is reported to have overcome it in recent years and is currently in good health. Mr Wong rightly pointed out that the only valid mitigating factor for the 2nd defendant is his guilty plea, and Mr Wong urged this court to accord the 2nd defendant the full discount.
In considering the sentence for the offence of trafficking in dangerous drugs, this court shall apply the six-step approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, and follow the guidelines set out in HKSAR v Huang Ruifang (No. 3) [2025] 2 HKRLD 138, and also SJ v Hii Siew Cheng [2009] 1 HKLRD 1.
Charge 1 involves a total of 103 grammes of FDNK, in accordance with the expert report of Dr Chong Yeow-kuan, chemical pathologist, the nature of this drug is similar to that of ketamine. In HKSAR v Chau Ka Kuen [2025] HKCFI 5690, Mr Justice Yau adopted the opinion of Dr Chong and applied the sentencing tariff for ketamine to FDNK. In the present case, I will adopt the same approach.
For the quantity of 103 grammes of ketamine, and in this case FDNK, applying the tariff in Hii Siew Cheng, the appropriate starting point should be 6 years and 7 months’ imprisonment.
Charge 2 involves a total of 10.14 grammes of ‘Ice’. Applying the tariff in Huang Ruifang, the appropriate starting point should be 7 years’ imprisonment. Although the trafficking acts of the two different counts of drugs were put under different counts, they were in fact discovered in the same place on the same location. A combined approach in considering the sentence is clearly appropriate.
Following the Court of Appeal case HKSAR v Yau Kai Fung [2026] HKCA 885, in arriving at the appropriate sentence for trafficking in a cocktail of drugs, it would now be sufficient to cross-check the result by way of the ratio test.
Applying the ratio test, the overall sentence in light of the respective quantities of the two drugs should be 7.2 years’ imprisonment. In my view, the appropriate overall starting point for the two charges should therefore be 7 years and 3 months’ imprisonment.
Regarding the role of the defendants, I accept the submission of Ms Lau that the 1st defendant is in the role of a mere shopkeeper and he was on the command of the 2nd defendant in performing the trafficking acts. This can be reflected from the contents of the call messages between the two. In other words, the 2nd defendant was in a superior position in trafficking activities and shall not be regarded as a mere shopkeeper or courier. His role is more akin to an operator or organiser.
In the premises, the 2nd defendant’s sentence should be adjusted upward because of his role and I am of the view that an enhancement of 6 months’ imprisonment is appropriate.
Another aggravating factor in the present case is that two different kinds of drugs are involved which render the trafficking operation more marketable. An enhancement of 3 months’ imprisonment is appropriate and this applies to both the defendants.
Ms Lau asked this court to consider the young age of the 1st defendant and treat it as a mitigating factor. However, the 1st defendant was already 20 years old at the time of the offence and it was not the first time he committed a drug-related offence. In my view, no allowance shall be given to the 1st defendant merely because of his age.
Regarding the 1st defendant’s mental conditions, although I accept that he suffered the mental conditions as submitted by Ms Lau, I am unable to accept that his mental condition made him more susceptible to the persuasion of the 2nd defendant as there is no medical evidence supporting the same. I am not minded to give any allowance on sentence because of this.
On the other hand, I accept that the 1st defendant has been progressing well in his rehabilitation and he has shown his determination to turn a new leaf. In the circumstances, I would adopt a starting point of 7 years and 3 months’ imprisonment for both charges.
For the 1st defendant, the sentence is to be enhanced to 7 years and 6 months for cocktail trafficking. Taking into account his guilty plea, the sentence be reduced to 5 years’ imprisonment. A further reduction of 3 months be given for his rehabilitation progress and remorse, making a total of 4 years and 9 months’ imprisonment.
For the 2nd defendant, the sentence is to be enhanced to 8 years’ imprisonment for cocktail trafficking and also the 2nd defendant’s role. Taking into account his guilty plea, the sentence is to be reduced to 5 years and 4 months’ imprisonment.
For the sake of clarity, the sentences of the two charges shall run wholly concurrently for both defendants.
