HKSAR v. So Yip Kuen

HCCC 186/2024

[2025] HKCFI 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 186 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 1 count of trafficking in dangerous drugs[1] before Magistrate Ms. Vivian Ho, admitted to the summary of facts and was, on 3 June 2024, committed to the Court of First Instance for sentence. He confirmed his plea and admission to the summary of facts before me and his conviction was duly recorded.

2.Particulars of the charge are that the defendant, on 21^st December 2022, outside No.83 Argyle Street, Mong Kok, Kowloon, unlawfully trafficked in dangerous drugs, namely 60 tablets containing 0.79g of midazolam and 56g of a mixture containing 43.2g of heroin hydrochloride.

SUMMARY OF FACTS

3.The defendant acted furtively in front of patrolling uniformed police officers at around 4:51am on the charge date and was intercepted inside the lobby of the building at no.83 Argyle Street.  He was brought outside for a body search.  

4.Upon search, a re-sealable plastic bag with 6 foil packets containing a total of 60 tablets, later confirmed to contain 0.79g of midazolam, was found behind his back on his waist.  Another re-sealable plastic bag was found from his trousers’ front waist band, with 28.1g of a mixture of heroin inside.

5.The defendant was brought back to the police station and a body search was conducted.  Hidden inside his underwear was another re-sealable plastic bag with a powdery solid inside.  It was later confirmed to contain 21.7g of heroin.

6.A mobile phone and cash of $1,090.50 was found on him.  The estimated street value of the seized dangerous drugs was $55,092.  

7.By his admission to the summary of facts, the defendant had accepted that he was unlawfully trafficking in all the seized dangerous drugs at the material time.

PREVIOUS CONVICTIONS

8.The defendant has 20 convictions dating back to 1981.  They include attempted theft, assaulting a police officer, possession of instrument fit for unlawful purpose, resisting arrest under the Offences Against the Person Ordinance, possession of dangerous drugs, giving false information to a police officer, wounding or inflicting grievous bodily harm, and 11 thefts or attempted thefts.  His last conviction was on 26 October 2020 for theft, when he was sentenced to 10 months’ imprisonment by a magistrate.  He was last discharged on 15 May 2021.  He committed the present offence about 1 year and 7 months after that.  

9.There is one conviction for possession of dangerous drugs for the purpose of unlawful trafficking dated April 1988, for which he was fined $750 by a magistrate.  There are only 2 other drug related offences and they are both for the simple possession of dangerous drugs.  He was fined for the one in 1993 and jailed for 4 months for the one in 1998.  

BACKGROUND AND MITIGATION

10.The defendant was born in the mainland in January 1959 and is 66 years old.  He was educated up to secondary level 1.  He was unemployed while living with his wife and 12-year old son prior to his arrest and remand.  

11.Mr. Mak Kin Ming, counsel for the defendant, submits that it is undeniable that the defendant was a courier and a small scale drug trafficker, but that there is no evidence to suggest that he was running a small packaging factory.  

SENTENCING

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

13.Given the relatively small quantity of midazolam, sentence for which will have a minimal impact on the final sentence, I will ignore it when arriving at the initial starting point.

14.However, it is trite law that trafficking in more than one type of dangerous drugs is an aggravating factor, and his sentence will have to be enhanced accordingly.

APPLYING HERRY JANE YUSUPH

15.The sentencing approach set out by the Court of Appeal in Herry Jane Yusuph[2] are applied with the updated sentencing guidelines in relation to heroin hydrochloride in the case of Huang Ruifang[3].

Step 1: The applicable guideline tariff bands

16.For the 43.2g of heroin, the updated applicable guideline tariff band is “5 to 8 years’ imprisonment”.

Step 2: The defendant’s role and culpability

17.Based on the summary of facts, there is insufficient evidence to prove that the defendant was involved in directly selling the drugs to others.  One reasonable inference is that the defendant’s role in relation to the seized drugs was that of a courier.  On that basis, the defendant will be sentenced as such and the tariff bands will be applied on an arithmetical basis.

Step 3: The relevant band within the guidelines

18.For 43.2g of heroin, based on the defendant’s role and culpability, I adopt a starting point of 7 years 6 months’ imprisonment.

Step 4: Aggravating factors

19.As mentioned above, the fact that the defendant had trafficked in two different types of dangerous drugs is an aggravating factor.

20.For this aggravating factor, I will enhance his sentence by 3 months, taking the notional sentence after trial up to 7 years 9 months.

21.The other aggravating factor is the defendant being a habitual offender, with 32 convictions from 20 court appearances, and that he committed the present offence about 1 year 7 months after his last discharge from prison for theft.  For this aggravating factor, bearing in mind that the last drug related conviction was back in 1998, I will enhance his sentence by 3 months, taking the starting point up to 8 years.  

Step 5: Mitigating factors

22.The defendant gave his age as 68 in his handwritten mitigation letter and relied on it as a mitigating factor.  However, according to his Hong Kong identity card, the defendant is 66 years 2 months and 14 days old as at 31 March 2025.  

23.In HKSAR v Lau Yuk-huen [2008] HKCU 864, CACC 37/2008, the Court of Appeal was of the view that the 66 year-old appellant cannot be regarded as old.

24.There is then the matter of the defendant’s previous experiences of breaching the law, suggesting that he must have known that conviction for a serious offence such as the present one will likely mean that he will be looking at a very lengthy term of imprisonment.  The defendant committed the offence ‘with eyes wide open’.

25.Lastly, the defendant will be well taken care of while imprisoned by our public medical services should that be needed, thus adding to the likelihood of him finish serving his sentence and rejoining society.  

26.There are, therefore, no mitigating factors apart from the defendant’s timely plea of guilty, for which he is granted a one-third discount, resulting in a sentence of 5 years 4 months.

Step 6: Totality

27.Taking a step back, I find this sentence fair, just and balanced in the circumstances of the case.  

FINAL SENTENCE

28.The defendant is sentenced to 5 years 4 months’ imprisonment after plea.

Ms. Rosa LO, SPP of Department of Justice, for the Prosecution/ HKSAR

Mr. MAK Kin-ming, instructed by Messrs. Wong & Co., assigned by D.L.A. for the defendant