HKSAR v. Wong Chai Kwan Sandy

HCCC 238/2026

[2026] HKCFI 5618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 238 OF 2026

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty in the Magistracy to one charge of trafficking in dangerous drugs and one charge of keeping a divan, and was committed, on 9 July 2026, to the Court of First Instance for sentence.  The Defendant confirmed her pleas and admission to the Summary of Facts before me, and her convictions were duly recorded.

2.Particulars of the Charge 1 are that the Defendant, on 28 May 2025, at 1st Floor, No. 129 Fa Yuen Street, Mong Kok, Kowloon (hereinafter “the Flat”), unlawfully trafficked in dangerous drugs,[1] namely, 24.66 grammes of a mixture containing 19.72 grammes of heroin hydrochloride, 102.99 grammes of a solid containing 78.16 grammes of cocaine, 3.11 grammes of a crystalline solid containing 3.04 grammes of methamphetamine hydrochloride (commonly known as “ICE”) and 13 tablets containing 0.17 gramme of midazolam.

3.Particulars of Charge 2 are the Defendant, between a day unknown between March and April 2025, and 28 May 2025, both dates inclusive, at the said Flat, kept a divan,[2] where dangerous drugs, namely, heroin hydrochloride, cocaine, ICE and midazolam, were sold in the divan and were to be inhaled therein.

FACTS

4.The facts admitted can be summarized as follows.

5.In the evening on 27 May 2025, plainclothes police officers were conducting an anti-narcotics operation in the vicinity of No. 129 Fa Yuen Street.  The police placed the building under surveillance.

6.At around 12:01 a.m. on 28 May 2025, when the police were trying to enter the Flat forcibly, a few people were seen rushing down through the back staircase of the building.  Police officers at the rear entrance revealed their police identities and those persons then turned around and went upstairs.

7.When the police entered the Flat, it was empty.  The police swept the building.  Eventually, the police intercepted the 13 persons and brought them back into the Flat for further investigations. 

8.The Defendant was intercepted on 8/F.  Upon enquiry, she admitted to be the responsible person of the Flat.  The Flat is about 500 square feet in size and consists of a living room, three rooms and a toilet. There were 7 tables in the living room.

9.The police then searched the Flat and found, inter alia, the following:

(1)  In the living room, a number of lighters and various tinfoil some with burnt marks.  There were also 2 pieces of notice marked with telephone numbers for FPS payment;

(2)  In one of the rooms:-

-  5 plastic bags containing cocaine;

-  A plastic bag containing 3.04g of ICE.

-  43 packets (each consisting of plastic wrappings) containing a total of 6.21g of a mixture containing 4.93g of heroin hydrochloride.

-  40 packets (each consisting of plastic wrappings) containing a total of 9.68g of a mixture containing 7.76g of heroin hydrochloride.

-  18 packets (each consisting of plastic wrappings) containing a total of 8.77g of a mixture containing 7.03g of heroin hydrochloride.

-  3 foil packs containing a total of 13 tablets containing 0.17g of midazolam.

-  A digital balance.

-  A spoon.

-  Numerous empty resealable plastic bags.

-  A calculator.

-  A notebook.

-  A pen.

-  Cash of HK$4,700.

-  2 inhaling devices.

10.In summary, the total amounts of drugs found in the Flat were as particularized in Charge 1.

11.The Defendant was arrested for "keeping a divan" and drug trafficking. Under caution, she admitted that she had received money to help manage the divan, and that she had sold the drugs to customers.

12.In two subsequently video-recorded interviews, the Defendant admitted:

(1)  She was helping a "Ken" to manage the divan in the Flat.  Her job was to take care of the customers, including admitting the customers, collecting money, and repackaging and selling drugs;

(2)  Ken would bring the drugs to the Flat and pay her from time to time.  She did not have the contact of Ken.

(3)  She lived in the Flat.  She received $850 as remuneration.  She worked 24 hours a day.  She worked alone in the Flat.

(4)  If customers did not have cash, they could make payment by way of FPS.

(5)  The drugs and consumption paraphernalia were all provided by Ken.

(6)  The spoon, digital balance and empty resealable plastic bags were for repackaging of drugs. The calculator and notebook were for recording sale proceeds.

(7)  The $4,700 cash seized was the revenue between 27 and 28 May 2025.

(8)  She started working in the divan since March / April 2025.

13.In May 2025, the average retail price for heroin was HK$594 per gramme, for methamphetamine was HK$521 per gramme, for crack cocaine was HK$1,093 per gramme and for midazolam was HK$55 per tablet.  The drugs seized could have been sold at street value for HK$129,551.

14.By her admission to the Summary of Facts, the defendant admits and accepts that that at the material time, she had knowingly possessed the drugs seized for the purpose of unlawful trafficking.  And that between a day unknown in March and April 2025, and 28 May 2025, she kept a divan where heroin hydrochloride, cocaine, methamphetamine hydrochloride and midazolam were sold and to be inhaled therein.

PREVIOUS CONVICTION

15.The Defendant has 15 previous convictions, seven related to possession of dangerous drugs, one was for trafficking in dangerous drugs in 2020 for which she was sentenced to 5 years and 2 months imprisonment on 22 July 2020.  Her last conviction was for money laundering on 28 May 2024 for which she was sentenced to 8 months imprisonment.

DEFENDANT’S BACKGROUND AND MITIGATION

16.Mr. Francis Yip, counsel for the Defendant, provided the court with written submissions for mitigation. 

17.In summary, the Defendant is now 49 years old.

18.She was educated to up to form 2 level and was unemployed at the time of the offence. 

19.She was last released from jail on 27 September 2024.

20.Mr. Yip informed the court that the Defendant is remorseful for the offences and pleads for leniency.  Her remorse is shown by her timely guilty plea.

SENTENCING

Charge 1

21.The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

22.The 6-step sentencing approach introduced by the Court of Appeal in HKSAR v Herry Jane Yusuph[3], as read in conjunction with HKSAR v Lee Ming Ho[4], are applied as follows.

Step 1: The applicable guideline tariff band

23.Step one is to identify the relevant guideline band applicable to the quantity of the dangerous drugs in question.

24.This case concerns 4 types of drugs, for present purposes the heroin hydrochloride and the cocaine contents will be dealt with together:-

(1)  For the 19.72 grammes of heroin hydrochloride and 78.16 grammes of cocaine, totaling 97.88 heroin/cocaine content – the sentencing guidelines as updated in the case of HKSAR v Huang Ruifang (No.3) [2025] 2 HKLRD 138 for cocaine are applied and it would fall under the band of “50 - 200 g with 8 to 12 years”.

(2)  For the 3.04 grammes of ICE, the sentencing guidelines as updated in the case of HKSAR v Huang Ruifang (No.3) (supra) for ICE are applied and it would fall under the band of “up to 10 grammes with 3 to 7 years”;

(3)  For the 0.17 gramme of midazolam contained in 13 tablets, the sentencing guideline would be similar to those applied to Methaqualone: see e.g. HKSAR v Luk Yun-shing CACC357/1998; HKSAR v Ng Tat-lung [2007] HKCLRT 702; HKSAR v Gaspar Ricky [2015] 2 HKLRD 363.  For this small amount it would fall under the discretion of the Court.

Step 2: The defendant’s role and culpability

25.The second step is to assess the role and culpability of the Defendant. 

26.As fairly accepted by Mr. Yip, the Defendant in this case is not a  “mere courier”.  From the facts admitted, I find the Defendant’s role to be “actual or direct trafficker” as she was dealing in the dangerous drugs to others.  She is therefore more culpable than a mere courier.

Step 3: The relevant band within the guidelines

27.In determining the proper overall starting point, I have reminded myself of the sentencing principle of trafficking in more than one type of drugs.

28.In HKSAR v Yau Kai Fung [2026] 3 HKLRD 701, [2026] HKCA 885, the Court of Appeal held at §42 that:-

“In light of the structured approach set out in Herry Jane Yusuph and the revised sentencing guidelines in Huang Ruifang (No 3), the absurdity and conversion tests no longer serve any useful or principled purpose as cross checks; the ratio test, while conceptually straightforward and consistent with the differentiated guidelines for hard and soft drugs, is to be used only in that secondary role.”

29.Therefore I shall only use the ratio test for cross-checking in this case.

30.On a purely arithmetical application of the guideline bands:

(1)  97.88 heroin/cocaine content would lead to 9 years and 3 months imprisonment;

(2)  3.04 grammes of ICE would lead to 4 years 2 months’ imprisonment.

31.I agree with Mr. Yip that the 0.17 gramme of midazolam is of such small quantity, especially in comparison with the other drugs in this case, that it can be disregarded for the purpose of computation of sentence at this step.

32.To achieve a reasonable and realistic sentence, I will adopt the combined approach which involve an upward adjustment from the starting point of the base drug: see HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 and HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 §27.  I shall then cross-check whether the starting point to be adopted is fair and appropriate by using the ratio test as stated above.

33.The heroin / cocaine content in this case represent the highest quantity of drugs, therefore I shall use heroin / cocaine as the base drug to calculate the starting point.

34.Using heroin / cocaine as the base drug, the starting point for 97.88 heroin/cocaine content is 9 years and 3 months’ imprisonment.  I now have to decide what upward adjustment I should make for the remaining ICE in this case.  As explained in Islam SM Majharul §27(3), to determine by how much this starting point should be increased to allow for the quantity of the other drug(s) is ultimately an exercise of sentencing discretion and should be done by:

(i)  considering the quantity of the other drugs and the relevant sentence according to that drug’s sentencing guidelines and by reference to the starting point adopted for the base drug.  Here the 3.04 grammes of ICE would correspond to 4 years and 2 months’ imprisonment.

(ii)  conducting an overall comparison of the sentencing guidelines of the drugs and their related ranges of sentence;

(iii)  examining the results of the ratio test, which yielded a result of 9 years and 5 months.

(iv)  taking all these matters into account to calculate a reasonable and realistic increase to the starting point.  I would increase the starting point of 9 years and 3 months’ imprisonment by 3 months imprisonment, resulting in 9 years and 6 months imprisonment.

35.In determining the appropriate overall starting point, I will also need to take into consideration the role and the culpability of the Defendant, being an actual or direct trafficker, I shall therefore enhance the sentence by 6 months and adopt a sentence of 10 years as the notional sentence after trial as starting point at this step.

36.In doing so, I have borne in mind that the Defendant has also pleaded guilty to Charge 2 (keeping a divan), and that the sentence imposed by the court to reflect the Defendant’s criminality should not involve any double counting or double punishment.

Step 4: Aggravating factors

(1) Two different types of dangerous drugs

37.This case involved the trafficking in more than two types of dangerous drugs. 

38.In the case of HKSAR v Chan Yuk Leong[5], the Court of Appeal stated the fact that the seizure of two or more types of dangerous drugs at the same time, even though separately packed and not in a prepared mixture, may lead to two possible aggravating features.  One being the ability of the trafficker to cater to a wider market, the other being the effect on users of combinations of dangerous drugs. 

39.As explained in Islam SM Majharul §27(4), after the determination of how much the starting point should be increased to allow for the quantity of the other drug(s).  The court has to determine the level of enhancement to the starting point for the aggravating factor that the trafficking involved two or more serious dangerous drugs. I would enhance the starting point by 3 months on account of this factor. 

(2) Previous convictions

40.The Defendant’s previous convictions in this case also constituted an aggravating factor.  Her conviction for drug trafficking was in 2020 for which she was sentenced to 5 years and 2 months imprisonment.  Her last conviction was for money laundering on 28 May 2024 for which she was sentenced to 8 months imprisonment – which means the Defendant committed the present offences not long after she was released from prison.

41.For these reasons, I shall further enhance the sentence by 9 months.  In doing so, I have borne in mind the Court of Appeal’s guidance in HKSAR v Lam San Yau [2026] 1 HKLRD 721 at paras.21-22 (said in the context of enhancement of sentence by reason of prior convictions) that enhancement of sentence “needs to be balanced against the comparative seriousness” of the offence, be reasonably proportionate to the basic sentence and not be excessive. 

42.The above analysis results in 11 years imprisonment by this step.

Step 5: Mitigating factors

43.Given the seriousness of the drug trafficking offence, the only strong mitigating factor is the Defendant’s guilty plea which was entered at the earliest opportunity.  Because of that, she is entitled to a full one-third discount.  That brings the sentence down to 7 years and 4 months imprisonment.

Step 6: Totality

44.In my judgment, this is a fair, just and balanced sentence in all the circumstances of the offence and offender for the reasons stated above.  I shall deal with overall totality after addressing Charge 2.

Charge 2

45.The maximum sentence on conviction upon indictment for keeping a divan is a fine of $5,000,000 and imprisonment for 15 years.

46.As explained in HKSAR v Lam Lai Chu Patsy (CACC 56/2003), and HKSAR v Fung Wai Hing [1995-2000] HKCLRT 543.  The following factors are relevant to sentencing for divan keeping, including:-

(1)  The scale of operation of the divan, this includes the size of the divan, the number of drug addicts that the divan could accommodate, the nature and quantity of the equipment or instruments provided for consuming dangerous drugs, and the mode of operation of the divan;

(2)  The degree of concealment of the divan and the protection it offered to the drug addicts;

(3)  Whether the divan keeper supplied or sold in the divan any dangerous drugs to persons to be consumed therein and the nature of the dangerous drugs supplied;

(4)  The profit derived by the divan keeper.

47.From past cases such as Lam Lai Chu Patsy (supra), the sentence for this offence normally ranges from 12 to 24 months imprisonment depending on the circumstances.

48.The divan in this case was maintained in a private property.  There is a certain level of concealment.

49.The Flat could accommodate more than 10 people or 10 customers.

50.There was a variety of differing amounts of dangerous drugs found in the Flat, and those drugs were packaged in easily sellable forms (i.e. packed into several smaller packets of drugs).  Apparatus for drug consumption was also available.

51.The divan was open 24 hours a day, and the Defendant would receive HK$850 for working there.

52.In HKSAR v Cheung Yiu Fai Alex [2005] HKCU 1126, the applicant was intercepted by the police when he left a flat in Mong Kok.  He was taken back to the flat where the usual items associated with a divan were found. Four persons were found inside. The applicant admitted he was the keeper of the divan for two days and that the people inside were customers.  Upon search, drugs were found inside the flat. The applicant admitted he sold the drugs to customers. He admitted that he was paid a daily salary of $450 and he was a drug addict and his habit cost him $100 to $200 a day.  The trial judge adopted a starting point of 2 years for the charge of keeping a divan. That sentence was not disturbed by the Court of Appeal.

53.In the circumstances of this case, and having also considered the sentences in HKSAR v Ng Ka Wing Kevin CACC 563/1999, HKSAR v Lam Lai Chu Patsy (supra) and HKSAR v Chong Cho Kit (CACC 363/2005); and bearing in mind the scale of the divan, which was not small, I find the appropriate starting point to be 21 months imprisonment.

54.The Defendant has pleaded guilty at the first opportunity and is entitled to the full one-third discount.  The sentence is therefore reduced to 14 months.

OVERRALL TOTALITY

55.On the matter of consecutiveness of the sentence for charges 1 and 2.  As explained by the Court of Appeal HKSAR v Chong Cho-kit (surpa):-

“9. Trafficking in a dangerous drug and managing a divan are two distinct offences.  Although in the present case, these two offences were committed at the same time on 17 April 2005 and at the same place, in a flat in Portland Street, on the facts and on principle, it is appropriate for separate sentences to be imposed on them....

10. … in [HKSAR v Ng Ka-wing, Kevin, CACC 563 of 1999], the Court of Appeal agreed with the following observations made by Pang J [as His Lordship then was] in HKSAR v Ho Sai-chak, HCMA 780/1999:

“… Although it can be said that the defendant was arrested in one police operation, however, the act of providing drugs to others for consumption and that of keeping a divan are different and separate matters.  One activity does not necessarily include the other.  The appellant was prepared, in addition to providing drugs, to offer the convenience of a place to drug addicts.  As such, the two charges cannot be said to be arising out of the same set of facts.

The order for the sentences to run consecutively cannot be criticised as being wrong in principle.  However, one must not lose sight of the totality principle. …”

56.In Chong Cho-kit (supra) the Court of Appeal upheld the trial Judge’s order for 6 months of the divan keeping charge to be run consecutively to the sentence imposed for the drug trafficking charge.

57.More recently in HKSAR v Lau Ka Fai Coffee (CACC 3/2022), a similar point arose as to the consecutive element of a charge of divan keeping and drug trafficking.  Zervos JA, in refusing leave to appeal, held that

“10.  As for Ground 2, Ms 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.

11.  It has been held that sentences for keeping a divan and trafficking in dangerous drugs which were being consumed in the 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: HKSAR v Ng Ka Wing Kevin, unrep., CACC 563/1999, 23 February 2000.”

12.  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 a consecutive element, which the judge ordered after taking into account the totality principle.[2] 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 there for the purpose of consuming drugs.”

58.See also HKSAR v Cheung Yiu Fai, Alex (CACC 173/2005) para.s 12-15 on the consideration for making the sentence for divan keeping to be made wholly or partly consecutive to the sentence on the trafficking charge as the circumstances call for, bearing in mind the need to avoid reaching an excessive overall sentence.

59.The same principles apply here, therefore in light of the totality principle, I order that 6 months of the sentence for Charge 2 to run consecutively to the sentence for Charge 1, making an overall sentence of 7 years and 10 months’ imprisonment for the two charges.

FINAL SENTENCE

60.Accordingly, the Defendant is sentenced to 7 years and 10 months’ imprisonment.

Mr NG Wing-kit, Senior Public Prosecutor of the Department of Justice, for HKSAR

Mr Francis Yip, instructed by Foo & Li, assigned by Director of Legal Aid, for the Defendant