HKSAR v. So Hoi Yiu

DCCC 202/2020

[2020] HKDC 698

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 202 OF 2020

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REASONS FOR SENTENCE

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1.The defendant, a 19-year-old woman who had a clear record, was caught smuggling drugs out of Hong Kong at the Hong Kong - Macau Ferry Terminal, Sheung Wan.

2.In the afternoon of 5 January 2020, customs officers stopped the defendant at the Departure Hall of the Ferry Terminal for customs clearance and found two bags of drugs hidden in her underpants – one bag containing 55 smaller bags of cocaine while the other containing 60 bags of cocaine.

3.The drugs were later examined by a Government Chemist who confirmed it to be 21.30g of a solid containing 11.88g of cocaine, which were estimated to have a street value of about $12,400.

4.Other things also found on her included cash of $681, a ferry ticket to Macau, and a mobile phone with one sim card.

5.The defendant pleaded guilty before me to one count of drug trafficking – the drugs involved are 21.30g of a solid containing 11.88g of cocaine.   

6.Counsel for the defendant, Miss Chan, said in mitigation that the defendant came from a typical broken family – she was abandoned by her divorced parents when she was only a child and was brought up by the grandparents.  

7.The defendant received education up to Form 4 and thereafter basically started her working life – she has done many different jobs such as waitress, salesperson etc finally ending up being a sales officer in a financial institute.

8.Miss Chan said the reason behind all this was money – knowing that she was short of income, she was introduced to some bad peers in late 2019, and with the promise of a $5,000 reward (she never received it), she committed the present offence.

9.In her letter to the court, the defendant said she had learned a bitter lesson and is determined to turn over a new leaf and is confident that she would become a better person.

10.There are many letters handed to the court from her family members, relatives as well as school teachers pleading leniency on her behalf. The news of her crime came as a shock to them all and they all spoke very highly of the defendant.

11.Miss Chan said in mitigation that the defendant was not a drug dependent and raised no issues on self-consumption nor part-consumption as grounds for further reduction in sentence and insofar as international element as an aggravating factor is concerned, Miss Chan asked the court not to enhance the sentence any further as this is only a discretionary power on the part of the court.

12.There are sentencing guidelines which suggest that for trafficking between 10g to 50g of cocaine, the usual term would be one of 5 to 8 years. Based on the amount the defendant admitted to trafficking (11.88g), I would take 60 months as the starting point.

13.If there exist aggravating features, the court may adjust the starting point upward. Here in the present case, the fact that the defendant tried to smuggle drugs out of the jurisdiction aggravates the matter.

14.As for the level of enhancement for the international element, the Court of Appeal in Chung Ping Kun CACC 85/2014 laid down broad guidelines in relation to this aggravating factor in drug trafficking cases involving less than 1000g of narcotic, and suggested that for up to 250g of drugs (applicable to cocaine), the level of enhancement is six months.

15.However, in another case (Choi Chun Wo CACC 273/2017), the Court of Appeal in dealing with the question of enhancement for the international element has this to say:

“It has been held that in relation to the international element in drug trafficking cases within the lowest band of up to 250 g, it would “generally” not be appropriate to impose an enhancement of sentence of less than six months’ imprisonment. However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent.”

16.Taking into account the particular facts of the present case, I would add 3 months to it for the international element, which brings the starting point up to 63 months.

17.As far as mitigation is concerned, there isn’t anything of substance besides his timely guilty plea; giving her the one-third discount, the starting point is reduced to 42 months.

18.I see no reasons for any further reduction in sentence, the defendant is therefore sentenced to 42 months’ imprisonment.