HKSAR v. Tong Yiu Fung and Another
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HCCC 412/2025 [2026] HKCFI 5931 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 412 OF 2025
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_________________________________ REASONS FOR SENTENCE _________________________________ 1.The Defendants are jointly charged and pleaded guilty in the Magistracy to one count of trafficking in dangerous drugs[1] and were committed, on 24 November 2025, to the Court of First Instance for sentence. The Defendants confirmed their pleas and admissions to the Summary of Facts before me, and their convictions were duly recorded. 2.Particulars of the Charge are that Tong Yiu-fung (D1) and Choy Man-ki (D2), on 20 June 2023, at Room 2236, 22nd Floor, Winland 800 Hotel, No. 1 Tsing Yi Road, Tsing Yi, New Territories (“the Hotel Room”), unlawfully trafficked in dangerous drugs, namely 191.54 grammes of a solid containing 163.81 grammes of ketamine and 12.82 grammes of a solid containing 9.09 grammes of cocaine. PROCEDURAL MATTER 3.Before the sentence hearing, the Court invited the parties to make submissions on whether the sentencing of the case should be adjourned to await for the new sentencing guidelines to be issued by the Court of Appeal as stated in HKSAR v Choi Tsz Fung [2025] HKCA 733, in which Macrae VP granted leave to appeal against sentence for trafficking in 6.8 kilogrammes of Ketamine with a view to reconsidering the guidelines in Secretary for Justice v Hii Siew Cheng.[2] The Prosecution submitted that they have no opposition to any adjournment. Counsel for D1 (Mr Kwan) and Counsel for D2 (Miss Tsang) submitted that the case should not be adjourned since the Defendants have already been incarcerated since June 2023, they would be nearing completion of their respective sentences under the old guidelines. 4.I agree with the submission of the Defence. 5.As the Court of Appeal noted in Choi Tsz Fung (supra):-
6.However, the quantity of ketamine involved in this case is not of such high quantity of 1 kg or above. Given the fact that the Defendants were remanded in custody since June 2023, they are nearing completion of their sentences under the old guidelines. Further delay in their sentencing may therefore create injustice in their case. 7.Therefore I shall deal with their sentencing today. FACTS 8.At about 1915 hours on 20 June 2023, D1 was observed by police officers to be leaving the Hotel Room and walking towards the lift lobby. D1 was intercepted. Upon search, an iPhone and the key card to the Hotel Room was found on him. D1 was brought back to the Hotel Room for investigation using the said key card. D2 was in the Hotel Room. A search was conducted in the Hotel Room under a search warrant. The following items were found upon search:-
9.The total quantity of drugs seized was as particularized in the charge. 10.D1 and D2 were arrested. 11.Under caution, D1 admitted that the dangerous drugs belonged to him and he sold dangerous drugs to earn money. 12.A cautioned VRI was conducted with D1. Under caution, D1 stated, among other things, the following matters:
13.A cautioned video-recorded interview was also conducted with D2. Under caution, she stated that D1 was her boyfriend and was acquainted with him for about 10 months. She started visiting D1 in the Hotel Room for twice or thrice per week to play video games. The Hotel Room was rented by D1. On the day when she was arrested, D2 stated that she went to the Hotel Room at about 0800 or 0900 hours to sleep there. At around 1500 or 1600 hours, she went out with D1 to eat at a nearby shopping mall. She returned to the Hotel Room at about 1600 to 1700 to play with her mobile phone. 14.DNA examination revealed that D2’s DNA matched with the DNA lifted from Exh.4, i.e. the plastic bag containing 189 grammes of a solid containing 162 grammes of ketamine. 15.The estimated retail value of all the dangerous drugs seized from the Hotel Room in the present case is HK$114,914.62. PREVIOUS CONVICTION 16.D1 has 4 previous convictions, none of them relate to drugs. 17.D2 is of clear record. DEFENDANTS’ BACKGROUND AND MITIGATION D1 18.Mr Kwan Tong Lee, counsel for D1, provided the Court with written submissions for mitigation, but no information about the offender or the circumstances of the commission of the offence were provided. The Court was informed that D1 has not provided specific instructions on those matters. 19.From D1’s antecedent statement, the Court notes that D1 is now 31 years old and was educated up to Form 2 level. After quitting school in 2009, D1 worked as a part-time transportation worker and part-time salesman until 2023 when he became unemployed. 20.D1 is single and was born and resides in Hong Kong. His mother is a bank clerk, and his father is an interior designer. 21.Mr Kwan informed the court that the defendant is remorseful for the offence and pleads for leniency. His remorse is shown by his timely guilty plea. D2 22.Miss Tsang Manyi, provide the court with detailed and helpful written submissions for mitigation on behalf of D2. 23.In summary, D2 was born in Hong Kong and has just turned 23 years old. At the time of the offence she was only a 19-year-old student who live with her father and paternal grandmother. Her father worked as a security guard and her grandmother was a Cha Chan Ten worker who has recently retired. 24.D2’s mother is a bookkeeper at a leisure club, although she did not reside with her, they maintained a close relationship. 25.After D2 graduated from her diploma in foundation studies in 2022, she enrolled to study a diploma in marketing. At the time of the offence she just completed a year in that course. She met D1 in about October 2022 through some mutual friends and later started a romantic relationship with him. 26.It was submitted that D2 tried to persuade D1 not to commit trafficking upon knowing that he was involved with drugs. But she herself then foolishly assisted him in handling and concealing the drugs in question. 27.D2 did not receive any reward for her participation in the trafficking. 28.Since being remanded, she has now found Christianity and for the past three years she actively participated in church and religious activities and earning various certificates in that field. She also enrolled in the School of Continuing and Professional Studies at the Chinese University of Hong Kong and in September last year she completed a course in media writing. Thereafter, she studied her DSE in English, Chinese and Accounting. 29.The mitigation letters submitted by the Defence have been duly considered. SENTENCING 30.The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is life imprisonment and a fine of HK$5 million. APPLYING HERRY JANE YUSUPH 31.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 32.Step one is to identify the relevant guideline band applicable to the quantity of the dangerous drugs in question. 33.In this case:-
Step 2: The defendant’s role and culpability 34.The second step is to assess the role and culpability of the Defendants. D1 35.Mr Kwan submitted that D1, on his own volition told the police that he would go to sell the drugs to consumers in discos and bars. But for his own admission, the Court would have no clue about this (the Prosecution has no evidence to prove his intended actual trafficking activity). Credit should be given to his owning up about his role to the police, and also to that he had not yet involved in the actual trafficking. Mr Kwan submits that a slight 2 months upward adjustment should therefore be made on account of D1’s role and culpability. 36.In the present case, as admitted by D1, he booked the Hotel Room, acquired the drug packaging paraphernalia and packaged the drugs. 37.As previously explained by the Court of Appeal HKSAR v Islam Azharul [2020] 1 HKLRD 644 at §14:
38.I accept Mr Kwan’s submission that D1 in this case had not yet disseminated the drugs. However, he did purchase the drugs, he then purchased the packaging tools to package them, he did package them – clearly intending to sell the drugs for a profit. D1’s role is slightly more culpable than a mere courier or store keeper. The fact that no drugs were yet disseminated or sold by D1 is by happenstance. D2 39.For D2, I accept Miss Tsang’s submission that D2 in this case was a mere store-keeper as there is no evidence showing that she participated in the purchasing of the drugs, packaging and intended dissemination of the drugs. Step 3: The relevant band within the guidelines 40.In determining the proper overall starting point, I have reminded myself of the sentencing principle of trafficking in more than one type of drugs. 41.In the recent case of HKSAR v Yau Kai Fung[5] [2026] HKCA 885 (handed down on 28 May 2026), the Court of Appeal provided new guidance on the use of the cross-checking tests when sentencing offenders involving a cocktail or combination of drugs. Zervos JA (giving judgment of the Court) explained, inter alia, that the absurdity test provides for a calculation indicating the upper limit of the sentence (§36) and the conversion test is computationally complex and the outcomes may vary depending on the choice of base drug and the conversion rate used, giving rise to a risk of inconsistency and undue complication (§§37-38). His Lordship concluded at §42 that:-
42.Therefore I shall only use the ratio test for cross-checking in this case. 43.On a purely arithmetical application of the guideline bands:-
44.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. 45.Ketamine in this case represents the significantly higher quantity of the drugs seized. I shall therefore use Ketamine as the base drug. 46.Using Ketamine as the base drug, the starting point for 163.81 grammes of ketamine is 7 years and 4 months imprisonment. I will now decide what upward adjustment should be made for the cocaine content. 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:
47.In determining the appropriate overall starting point, I will also need to take into consideration the role and the culpability of the defendants. 48.D1’s role was clearly more culpable than a mere courier or store keeper as analysed above. I shall therefore enhance the starting point by 3 months and adopt 7 years and 10 months as the starting point at this step for D1. 49.D2 was a mere store keeper, I shall therefore adopt 7 years and 7 months’ imprisonment as the starting point at this step for D2. Step 4: Aggravating factors 50.As fairly accepted by both counsel, the fact that this case involves two different types of dangerous drugs is an aggravating factor. 51.In the case of HKSAR v Chan Yuk Leong[6], 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. 52.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 above starting point by 3 months on account of this factor. (2) Previous convictions 53.D1 has no drug related previous convictions and D2 is of clear record. I find no further aggravating factors applicable in this case. 54.This results in:-
Step 5: Mitigating factors (1) Guilty plea 55.Given the seriousness of the drug trafficking offence, the strongest mitigating factor in both defendants’ case are their guilty pleas were entered at the earliest opportunity. Because of that, they are entitled to a full one-third discount. That brings the sentence down to:-
56.For D1, Mr Kwan submitted that D1’s “admissions” as to his role warrants a further discount than the customary one third. In doing so, he attempted to draw an analogy to cases where the defendant voluntarily surrendered and made confessions of crimes that were not known to the authorities. It was submitted that “but for” his admissions, there is no evidence as to D1’s role. I do not agree this is a case where further discount is warranted. As it is not a situation where D1’s trafficking offence would not have come to light but for his admissions, nor did he voluntarily surrender himself to the authorities. The seizures in the Hotel Room would allow the Court to draw the irresistible inference as to the offence. His early admissions to the police for his own involvement in the offence in this case is already subsumed into the one third discount for guilty plea: see Cross & Cheung on Sentencing (12th Ed) para.30-72 to 30-78. (2) Rehabilitation 57.For D2, since her incarceration, she has made significant effort in rehabilitation by enrolling into various courses, evidencing a determination to start a new leaf. The Court in previous cases have recognised this factor as a potential mitigating factor in drug-trafficking cases. 58.For example in HKSAR v Ng Ka Po Ivy & Another[7] the Court held that “the defendant’s effort towards her rehabilitation and eventual re-integration into society should be recognized by way of a 6-month reduction in sentence” for a defendant who was of clear record (para.70). In HKSAR v Chan Cho-kin & Another[8], the Court gave a further 3 months reduction in sentence for the defendant’s progress in rehabilitation and “shown his determination to turn a new leaf”. In HKSAR v Chau Ka-kuen[9] the Court granted a further reduction of 6 months for the defendant’s attitude towards his rehabilitation since being remanded (in particular, for his enrolment and completion of “various courses” during incarceration). 59.Whether any further reduction in sentence is given for this factor will depend on the individual circumstances of each case and the exercise of discretion by the Court in the specific factual context of the case. 60.In this case, I am persuaded by Miss Tsang that D2 has progressed in rehabilitation and shown determination in turning a new leaf. For this factor, I shall reduce her sentence by a further 6 months. 61.D2’s sentence is therefore reduced to 4 years and 8 months. Step 6: Totality 62.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. FINAL SENTENCE 63.Accordingly:
Ms Margaret LAU, SPP of Department of Justice, for the HKSAR Mr KWAN Tong Lee instructed by A Lee & Partners, assigned by DLA, for 1st Defendant Ms TSANG Manyi instructed by Legal Aid Department, assigned by DLA, for 2nd Defendant [1] Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134 [2] [2009] 1 HKLRD 1 [3] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 [4] HKSAR v Lee Ming Ho (李名豪) [2024] 1 HKLRD 1186 [5] Now reported in [2026] 3 HKLRD 701 [6] CACC 318/2013 §23-§25 [7] (HCCC 191/2024; [2026] HKCFI 2697) [8] (HCCC 90/2026; [2026] HKCFI 5675) [9] [20205] HKCFI 5690 |
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