HKSAR v. Chu Hoi Yan Amy

HCCC 91/2024

[2025] HKCFI 2216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 91 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.Defendant faces two counts of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3)  of the Dangerous Drugs Ordinance, Cap. 134.

2.The subject matter of the two counts of trafficking in dangerous drugs, taken together, involves cocktail of drugs.  The first count involves 0.31 grammes cocaine contained in 2 resealable plastic bags wrapped in a tissue paper found in the person of Defendant.  The second count further involves 29.23 grammes of methamphetamine hydrochloride contained in 3 resealable plastic bags, 15.84 grammes of ketamine contained in 33 resealable plastic bags and 4.03 grammes of cocaine contained in 18 resealable plastic bags seized in the premises of Defendant.

3.Defendant pleaded guilty to both counts in the Eastern Magistrates’ Court on 18 March 2024 and admitted the summary of facts.  The case was thus committed to the Court of First Instance for sentence.

4.This morning, she appears before me, having confirmed her pleas and the admission of facts.

FACTS

5.It is a classic stop and search case.  I shall adopt the summary of facts which had been admitted by the defendant as follows:-

6.Pursuant to intelligence, in the night of 16 February 2023, the police laid an ambush at the staircase on the 22/F of Yuk Kwai House, Kwai Chung Estate, Kwai Chung.  At around 8:05 pm, Defendant was seen walking out of the corridor that leads to Room 2201 (“the Room”)  and 4 other units.  D walked up to the lift lobby on the 22^nd floor and was then intercepted by the police.  Upon body search, dangerous drugs were found on the left front jacket pocket in relation to Charge 1 (E1).  Also, Defendant was at that time holding a mobile phone and 2 keys.  Defendant was arrested.  Under caution, she asked for a chance.

7.Defendant was later escorted to the Room.  The gate of the Room was not locked.  Defendant used one of the keys to unlock the door to the Room.  

8.Upon entry into the Room, police found 2 pink envelopes, 5 re-sealable plastic bags,  an electronic scale and a stack of empty resealable bags on the cabinet.  One of the pink envelopes contained 31 resealable plastic bags containing a total of 14.8 grammes of ketamine (E2)  while the other pink envelope contained 18 resealable plastic bags containing a total of 4.03 grammes of cocaine (E3).  As for the 5 resealable plastic bags, 3 of them contained 29.23 gramme of methamphetamine hydrochloride (E4), while the remaining 2 of them contained 1.04 grammes of ketamine (E5).

9.Defendant was again arrested.  Under caution, she said that she helped her boss to distribute these stuff.

10.A handbag of Defendant was found in the Room.  Inside the handbag, cash of HK$28,000 was found, which were made up of 5 HK$1,000 banknotes, 37 HK$500 banknotes and 45 HK$100 banknotes.

11.The estimated street value of E1-E5 is HK$27,592 or HK$28,641, depending on whether the cocaine is sold as powder or crack form.

12.The Housing Authority confirms that Defendant was the tenant of the Room.

BACKGROUND AND MITIGATIONS

13.Defendant is 66 years old.  She was born in Hong Kong and received education up to Form 4 level.  She is single and had been living alone in the public housing estate at Kwai Chung.  Defendant was working as a cleaner from 2021 to 2023 before her arrest and she was a drug addict for over 20 years.  She has a long list of criminal records and was brought before the court for no less than 28 occasions from 1996 to 2018 including 22 convictions for theft, one conviction for AOABH, one conviction for Attempted Fraud, 5 convictions for Possession of Part I poison, 5 convictions for Possession of Dangerous Drugs and also a similar record of Trafficking in DD in 2014 for which she was sentenced to 6 years and 9 months in the High Court.

14.In a mitigation letter written by Defendant, she expressed remorse and regret for what she had done in the past and admitted that in order to earn quick money, she has caused harm to the society.  Defendant said she becomes a Christian during this time in custody and was determined to stay away from the drugs and hopes to become a volunteer and do her best to turn into new leaf and give back to the society.  She asks the court to impose a lenient sentence on her.

CONSIDERATION OF SENTENCE

15.In sentencing the defendant, I shall follow the six-steps approach as mentioned in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

THE FIRST STEP – GRAVITY OF THE OFFENCE

16.The first step is to assess the gravity of the offence with reference to the type and quantity of the drug involved. 

17.Defendant pleaded guilty and is convicted of two trafficking charges, Count 1 and 2.  She was first arrested at the corridor leading to the Room where 0.31 grammes of cocaine related to Count 1 was found on her person.  She was then escorted to the Room where she is the registered tenant.  Inside the Room, a total of 15.84 grammes of ketamine, 29.23 grammes of Ice, and 4.03 grammes of cocaine related to Count 2 were found. 

18.In such circumstances, I consider the trafficking offences underlying these two counts arose from the same course of the criminal conduct.  It is therefore only fair that the aggregate amount of the drugs involved should be added altogether for fixing a global starting point.  

19.The present case therefore involves a total of 15.84 grammes of ketamine, 29.23 grammes of Ice, and 4.34 grammes of cocaine.

20.In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in a cocktail of drugs.  According to the case of HKSAR v Chan Yuk Leong, CACC 318/2013 (unrep., 8 April 2014), there are three means of cross-checking the appropriateness of the overall starting point in the case of a trafficking involving different types of dangerous drugs, namely the absurdity test, conversion test, and the ratio test.  I have directed counsels for the prosecution and defence before the hearing today to do the calculations.

21.According the calculation made by Mr. Glen Kong, Senior Public Prosecutor, to which Mr. W.F. Ching, counsel for defence did not object, the different starting points under the absurdity test, the conversion test and the ratio test are, respectively, 9.63 years, 8.55 years and 8.29 years. 

22.The starting point in relation to Count 1 alone will be around 2 years according to the sentencing tariff.  It would be unfair to sentence the defendant on the individual approach.  To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves an upward adjustment from the base drug.  In this case, ‘Ice’ was the more or most serious drug in terms of potency among all the drugs involved, and it also represented about 59.1% of the total drugs.  I will therefore use ‘Ice’ as the base drug to calculate the starting point.  According to the revised sentencing tariff laid down by the Court of Appeal in HKSAR v Huang Ruifang, CACC 106/2022 (unrep., 5 March 2025), between 10 grammes and 70 grammes : 7 to 11 years’ imprisonment.  Based on the quantity of Ice in this case alone which is 29.23 grammes, the starting point will be 8.28 years.

23.Taking into account the presence of 15.84 grammes of ketamine and 4.34 grammes of cocaine, which is equivalent to trafficking in around 3.23 grammes and 0.76 grammes of Ice respectively, because of the additional 3.99 grammes of Ice involved, the total equivalent quantity of Ice would come to 29.23 grammes + 3.99 grammes which is 33.22 grammes.  Thus, an upward adjustment from 8.28 years to 8.55 years is necessary.  Based on the above, I consider the result in the absurdity test is too high while the ratio test too low and both are unrealistic.  I shall adopt the result produced by the conversion test and the starting point of 8.55 years of imprisonment appropriate for trafficking in all the dangerous drugs involved in the present case.

THE SECOND AND THIRD STEPS – ROLE AND CULPABILITY & THE RELEVANT BAND DEFENDANT COMES

24.The second step is to assess the role and culpability of the defendant based upon the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it may, in appropriate circumstances, be necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the defendant. 

25.The assessment made in the second step is relevant in determining where the defendant falls within or outside the band.

26.The Court of Appeal reaffirmed that the bands are for the least culpable of drug traffickers.  As was held in the Herry Jane Yusuph at §59, and I quote,

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

27.In my judgment, however, the defendant’s role in the present case was more than a mere courier or storekeeper as submitted by Mr. Ching.  I consider her to fall under the category of an ‘actual or direct trafficker’, which is described in Herry Jane Yusuph at §61 as someone who is involved in the actual selling of dangerous drugs to the public.  Defendant should be considered as such based on her own admission after her arrest that she helped her boss to distribute these stuff, the staggering quantities of dangerous drugs found on her at the time of arrest and in the Room she rented, and the paraphernalia associated with drug trafficking that was found in the unit, including an electronic scale, and a large number of resealable plastic bags.  Also, Defendant was in possession of cash of HK$28,000 comprising different combination of banknotes at the time of arrest which is more or less the estimated street value of E1-E5.  As such, an enhancement of the sentence is required due to the heightened culpability based on her role.

28.Before determining an appropriate enhancement in the present case, I have referred myself to cases involving sentence enhancements based on the defendant’s more culpable role, while being mindful that each case depends on its own facts.

29.In HKSAR v Islam Azharul [2020] 1 HKLRD 644, Zervos JA considered an enhancement of six months’ imprisonment appropriate for a defendant who was involved in the packaging and dissemination of dangerous drugs by renting a room to store them.  The defendant in that case was also in possession of over 90 bags and packets of drugs at the time of his arrest and was found with a knife bearing traces of the drugs, as well as an electronic scale.  In HKSAR v Leung Chun-him [2023] HKCFI 2648, an enhancement of six months’ imprisonment was considered appropriate for a defendant who admitted to delivering dangerous drugs for others because he could not find any job during the pandemic.  He also admitted to being responsible for counting and packing the drugs in a warehouse under the instructions of a dangerous drug trafficking syndicate.  Similarly, in HKSAR v Leung Choi-ying, Cherry and Another [2024] HKCFI 72, an enhancement of six months’ imprisonment was considered appropriate for a defendant who admitted to being instructed to pick up a pack of dangerous drugs to repack it into eight to nine packs in a hotel room for sale to others.

30.Considering the cases above and defendant’s role and involvement in the present case, apart from delivering the drugs, she was obviously involved in repackaging or even selling of the drugs as well.  I consider a similar enhancement is required to reflect her heightened culpability.  Her overall sentence would therefore be increased from 8.55 years to 9 years of imprisonment.

THE FOURTH STEP – AGGRAVATING FACTORS

31.The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance the starting point.

32.As fairly submitted by Mr. Ching, the multiplicity of drugs in the present case, involving ‘Ice’, ketamine and cocaine, is an aggravating feature.  This multiplicity enables the trafficker to cater to a far wider market than if trafficking only one kind of drug, thereby heightening the potential harm to society.

33.In HKSAR v Wan Lau Mei, CACC 389/2013 (unrep., 27 March 2014), the defendant there was convicted of trafficking various quantities of different types of drugs, involving ketamine, ‘Ice’, heroin and cocaine.  The Court of Appeal considered a 6-month enhancement appropriate for the factor of multiplicity.  Similarly, in Islam Azharul, where the defendant trafficked in cocaine, herbal cannabis, cannabis resin and ‘Ecstasy’, the Court of Appeal considered that the multiplicity factor would warrant an enhancement of 6 months’ imprisonment.

34.Although Defendant has a bad criminal record, the present conviction remains only her second conviction of Trafficking in Dangerous Drugs, so I would not enhance the sentence this time.

35.Taking the above into account, I consider that a similar 6-month increase would be appropriate to reflect the presence of multiple drugs in this case.  Given the circumstances, the overall sentence will be increased from 9 years to 9 years and 6 months of imprisonment.

THE FIFTH STEP – MITIGATING FACTORS

36.The fifth step is to consider all mitigating factors.  As submitted by Mr. Ching, the defendant pleaded guilty to the charges at the earliest opportunity during the committal proceedings and made admissions at the scene after her arrest.  The defendant will be given a one-third discount for her timely and early plea.

37.Apart from that, in cases of trafficking in dangerous drugs, personal and family circumstances will count for little unless they are exceptional.  There is nothing in the paper to demonstrate that there is anything exceptional warranting any further mitigation.

38.Therefore, I will not reduce the sentence further apart from the one-third discount given for the defendant’s timely and early plea.  After applying such a discount, the defendant’s sentence is reduced from 9 years and 6 months to 6 years and 4 months of imprisonment.

THE SIXTH STEP – APPRAISAL OF THE OVERALL SENTENCE

39.The sixth and final step is to stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. 

40.In light of the fact that the offences defendant committed are serious and also the role she had played, I have no doubt that the resulting sentence of 6 months and 4 months is only fair, just and balanced in the circumstances.

ORDER

41.Charge 1 – 16 months’ imprisonment;

42.Charge 2 – 6 years and 4 months’ imprisonment;

43.Sentences on both charges to run concurrently.

Mr. Glen KONG, SPP of Department of Justice, for the HKSAR

Mr. CHING Wan-fung, instructed by Robertsons, assigned by The Director of Legal Aid, for the defendant