HKSAR v. Chan Hiu Tung

HCCC 94/2024

[2025] HKCFI 2700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 94 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.Defendant faces one count of “Trafficking in dangerous drugs”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134 (Charge 1)  and another count of “Possession of dangerous drugs” contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap. 134 (Charge 2).

2.The subject matter of Charge 1 involves cocktail of drugs, namely 100.32 grammes of a solid containing 94.2 grammes of cocaine and 12.2 grammes of a solid containing 9.88 grames of ketamine.  The subject matter of Charge 2 concerns 32 millilitres of a liquid containing traces of cocaine and 17 millilitres of a liquid containing traces of methamphetamine.

3.She pleaded guilty to both charges in the magistrate court on 21 March 2024 and admitted the summary of facts.  The case was thus committed to the Court of First Instance for sentence.

4.She first appeared before me on 25 February 2025, having confirmed her plea and the admission of facts.  The case was however further adjourned to this afternoon to enable the defence more time to prepare for further mitigation.

FACTS

5.It is a classic stop and search case.  Acting on information, on 25 October 2022, the police mounted an anti-narcotic operation and put Flat B, 13/F, Chengtu House, Tsuen Wan Centre, Tsuen King Circuit, Tsuen Wan, New Territories (“the Flat”)  under observation.  At about 2:19 p.m., Defendant came out from the Flat and was intercepted.  The police entered the Flat and found the subject matter of dangerous drugs in the bedroom.  Defendant was immediately arrested and cautioned.

6.As to the result of the search of the Flat and the admissions made by Defendant under caution at the scene and subsequently in the Video Recorded Interview (“VRI”)  in the police station, I shall adopt the summary of facts which had been admitted by the Defendant as follows:-

“2. A search was executed against the Flat upon the strength of a search warrant. The Flat was an apartment of about 400 square feet and comprised of two bedrooms, an open kitchen and a bathroom. The following items were found in the bedroom:

(a)  138 plastic packets, 7 glass tubes and 3 plastic bowls containing a total of 100.32 grammes of a solid containing 94.2 grammes of cocaine (subject matter of Count 1);

(b)  22 plastic bags containing 12.2 grammes of a solid containing 9.88 grammes of ketamine (subject matter of Count 1);

(c)  a glass bottle containing 32 millilitres of a liquid containing traces of cocaine (subject matter of Count 2);

(d)  a glass bottle containing 17 millilitres of a liquid containing traces of methamphetamine (subject matter of Count 2); and

(e)  a glass bottle that did not contain any dangerous drugs.

3. D was arrested. Under caution, she stated that the dangerous drugs, packing tools and paraphernalia all belonged to her.

4. A cautioned video recorded interview was conducted with D. Under caution, D stated, among other things, the following matters:

(a)  All dangerous drugs, packing tools and paraphernalia seized from the Flat were owned by her.

(b)  She was in the business of selling dangerous drugs. Normally, she would make a call to an unknown guy and would order dangerous drugs from him.

(c)  Each time, she would order ‘an orange (一個橙)’ i.e. to spend HK$16,000 - $17,000 to buy 24 to 25 grammes of cocaine.

(d)  Upon receiving the order, the guy would send her a QR code for her to pay the price in 7-11 Convenience Stores. She would then send the payment receipts to the unknown guy who would deliver the dangerous drugs to her by car.

(e)  She had deleted all the records and thrown away all the receipts already.

(f)  After returning to the Flat with the dangerous drugs she received, she would crush the dangerous drugs into small pieces with scissors or hammers, weigh them and use small plastic bags to wrap them into grains.

(g)  For 24 to 25 grammes of cocaine, she would be able to produce about 128 grains.

(h)  For each grain, there would be about 0.18 grammes of cocaine. She would sell each for HK$350.

(i)  Customers would call her and she would deliver the dangerous drugs to them by taxi or on foot. She worked alone.

(j)  She had deleted all the customers’ details from her phone and did not give the passcodes to the Police to examine her mobile phone.

(k)  She rented the Flat alone since 29 September 2022. The monthly rent was HK$11,800.

(l)  She did not have a job and lived in the Flat alone.

(m)  D identified the seized dangerous drugs when they were shown to her. She confirmed that the dangerous drugs involved were cocaine and ketamine for sale purpose.

(n)  Like the cocaine, she received the ketamine from the same unknown person.

(o)  She confirmed that the two glass bottles were apparatuses for her to consume cocaine and ice. She explained how she would consume cocaine and ice with those apparatuses.

(p)  She further confirmed that the electronic scales, bowls, spoons, plastic packing sheets, unused transparent re-sealable plastic bags and containers seized from the Flat were used by her as packing tools to pack the dangerous drugs.”

7.The estimated retail value of all the dangerous drugs seized  under Charge 1 is as follows:

(1)  Cocaine : HK$86,576 (powder)  or HK$168,738 (crack)

(2)  Ketamine : HK$7,832

BACKGROUND AND MITIGATIONS

8.Defendant is now 29 years old.  She was born in Hong Kong and received education in Hong Kong up to Form 2 level.  She worked as a saleslady and later as an office clerk.  She has been unemployed since 2021.  She is single but had three children: a ten-year-old daughter and two sons aged five and four.  The daughter is currently under the care of Social Welfare Department while the Defendant’s mother is taking care of her two sons.  In 2020, Defendant was first convicted of “Possession of dangerous drugs” and was sentenced to the DATC for rehabilitation. Mr. Michael Leung, counsel for Defendant, told me that due to emotional and family problems, Defendant went astray and became a drug abuser.  Defendant understands that she will need to serve a long prison sentence, which will cause her significant pain as she will be separated from her children.  She is remorseful now and she feels deeply sorry for her mother and her children.  She hopes that this imprisonment will give her a chance to start new.

9.Mr. Leung emphasized Defendant pleaded guilty to both charges at the earliest opportunity at the committal proceedings and she fully admitted her role at the scene and in the VRI after the arrest for which she should receive the one-third discount.

CONSIDERATION OF SENTENCE

Charge 1

10.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

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

12.Defendant pleaded guilty and was convicted of the two charges (Charges 1 and 2).  She was first intercepted outside her Flat and was then escorted back to the Flat by the police for a search.  Inside, a total of 94.2 grammes of cocaine, and 9.88 grammes of ketamine related to Charge 1 were found.

13.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 counsel for the prosecution and defence before the hearing today to do the calculations and what came out in the final results are, indeed, identical.

14.According the calculation made by Ms. Winnie Mok, Senior  Public Prosecutor, the different starting points under the absurdity test, the conversion test and the ratio test are, respectively, 9 years 5.3 months, 9 years 4.2 months and 9 years 2.1 months. 

15.It is obviously unfair to sentence the Defendant on the individual approach by adding the individual starting points in relation to cocaine and ketamine in Charge 1.  To achieve a reasonable and realistic sentence, I will adopt the combined approach which involves an upward adjustment from the starting point of the base drug.  Cocaine is the more or most serious drug in terms of potency among all the drugs involved, and it also represents more than 90% of the total drugs.  I will use cocaine as the base drug to calculate the starting point.  9.88 grammes of ketamine would be equivalent to 6.58 grammes of cocaine in sentence.

16.Taking the above into account, for 100.78 grammes of cocaine, I consider a starting point of 9 years and 4 months of imprisonment appropriate for trafficking in the dangerous drugs involved in the present case.

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

17.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. 

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

19.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.”

20.In my judgment, however, the Defendant’s role in the present case is not limited to that of a courier or storekeeper.  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.  As acknowledged by Mr. Leung in his written submission, the Defendant should be considered as such based on his own admissions at the scene after her arrest, the staggering quantities of dangerous drugs found inside the Flat at the time of arrest, and the paraphernalia associated with drug trafficking that was found in the unit, including scales, bowls, spoons, plastic packing sheets and a large number of unused small resealable plastic bags.  As such, an enhancement of the sentence is required due to her heightened culpability based on her role.

21.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.

22.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.  He 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. 

23.Considering the Defendant’s involvement in the present case, however, I do not consider a similar 6-month enhancement sufficient to reflect her heightened culpability.  In addition to being heavily involved in the storage, packaging, and dissemination of the dangerous drugs (as inferred from the paraphernalia associated with drug trafficking found in the Flat), Defendant also admitted that she bought the cocaine from an unknown male and that she repacked the cocaine into smaller grains and resell them and deliver to other customers personally to make profit.

24.In light of her admission and her role in trafficking of the cocaine, I would have thought that a 12 months’ increase would be more appropriate.  The sentence would therefore be increased from 9 years and 4 months to 10 years and 4 months of imprisonment.

THE FOURTH STEP – AGGRAVATING FACTORS

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

26.The presence of another drug in the present case, namely ketamine, 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.

27.In HKSAR v Wan Lau Mei, CACC 389/2013 (unrep., 27 March 2014), the defendant there was convicted of 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. 

28.In this case, there is only one other type of drug, and it is ketamine which is less serious. I consider that a 2-month’s increase would be appropriate given the circumstances.  Therefore, the sentence will be extended to 10 years and 6 months of imprisonment.

THE FIFTH STEP – MITIGATING FACTORS

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

30.Apart from that, Mr. Leung also submitted that the Defendant is now truly remorseful and she is a mother of three young children.  However, as the Court of Appeal made clear in Herry Jane Yusuph at §73, in cases of trafficking in dangerous drugs, personal and family circumstances will count for little unless they are exceptional.  I have carefully reviewed the mitigations put forward but there is nothing in the paper to demonstrate that there is anything exceptional warranting any further mitigation.

31.Therefore, I will not reduce the sentence on Charge 1 further apart from the one-third discount given for the Defendant’s plea.  After applying such a discount, the Defendant’s sentence is reduced from 10 years and 6 months to 7 years of imprisonment.

THE SIXTH STEP – APPRAISAL OF THE OVERALL SENTENCE

32.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. 

33.In my judgment, the final sentence of 7 years of imprisonment on the trafficking charge is, of course, harsh for Defendant.  However, in light of the above and the fact that the offence she committed is so serious, and also the role she had played, I have no doubt that the sentence is fair, just and balanced in the circumstances.

Charge 2

34.As to the liquid with traces of cocaine and methamphetamine which were found in the Flat and was possessed by Defendant for her own consumption, the quantity is small, only 32 and 17 milliliters.  However, as she has already received a lengthy prison sentence in Charge 1, there is no point to consider any non-custodial sentence for rehabilitation.  I would simply adopt a starting point of 12 months and reduce it by one-third to 8 months of imprisonment.  As for totality of sentence, since the presence of those small traces of cocaine and methamphetamine would have made no difference to the sentence in Charge 1 even if those are concerned with drug-trafficking, I shall order that the sentences on both charges to run concurrently. 

ORDER

35.Charge 1 -  7 years of imprisonment;

36.Charge 2  - 8 months of imprisonment;

37.Sentences on both charges to run concurrently.

38.Total sentence: 7 years of imprisonment.

Ms. MOK Wan-yin Winnie, SPP of Department of Justice, for the HKSAR

Mr. LEUNG Hung-kuk Michael, instructed by Chong & Yen, assigned by The Director of Legal Aid, for the defendant