COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed before me for sentence.
In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the type and quantity of the drugs involved, personal background of the defendant, and mitigation put forward on her behalf. I have also had regard to the sentencing principle and approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The facts of the case are simple. On 15 May 2023, when police officers searched a residential unit occupied by the defendant, dangerous drug and some drug-related paraphernalia were found. Upon arrest, the defendant said under caution that “Ah Wai” gave her the white powder and she helped him to sell it. The dangerous drug found was 136.25 grammes of a mixture containing 102.34 grammes of heroin hydrochloride.
In a subsequent video-recorded interview, the defendant confirmed the confession and gave more information of Ah Wai and where did she obtain the drug. She said the paraphernalia found were used for packaging of drugs. She lived in the unit and was the only person who possessed the key. She herself had been consuming drugs and each time would take around 0.2 grammes, costing her around $200. The money found in the unit was her own savings. She had not received any reward from Ah Wai.
The defendant is now 50 years old. She received education up to Form 3 in the mainland. She came to Hong Kong in 2001. She was unemployed at the time of the arrest. She was living alone. She has a son and a daughter, both living in the mainland with their grandparents.
She has one previous conviction record. In 2012, while charged with possession of a dangerous drug, she was sentenced to 4 months’ imprisonment, suspended for 18 months.
In mitigation, learned counsel for the defence, Ms Virginia Lau, stressed that the defendant pleaded guilty at the earliest opportunity and that she is remorseful. Ms Lau urged me to take into account that the defendant had a clear record and cooperated with the police throughout the course of the investigation. Ms Lau also said that the defendant now believes in God and has got rid of her drug addiction with the determination to turn a new leaf.
The defence produced certificates of the defendant’s attending some Christian course.
The drug involved in this case was heroin hydrochloride. Having heard counsel and had regard to the observation of the Court of Final Appeal in Seabrook v HKSAR [1999] 2 HKCFAR 184, I am of the view that the tariff set out in the recent case of HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138 should be applied.
In that case, the Court of Appeal remarks that a sentence of 8 to 12 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is between 50 and 200 grammes.
As regards the role of the defendant, the submission of Ms Lau was that she was primarily a storekeeper. I consider sentence on the basis that the defendant was a storekeeper as well as a distributor and in any case should occupy a low position in the hierarchy.
Ms Lau also asked the court to take into account that a small quantity of the drug found was intended for own consumption by the defendant. Despite the defendant did not testify on this matter and there is no medical report to support the assertion, taking into account that the defendant did say during the interview that she had been
consuming drugs, the previous conviction of the offence of possession of dangerous drugs and the fact that the drug was wholly found inside her home, I am prepared to accept the assertion.
It was held by the Court of Appeal in cases like HKSAR v Tam Ling Yuen, CACC 159/2015, HKSAR v Yung Shek Yung, CACC 314/2016, and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, that a discount for this reason should normally only be given when a significant proportion of the drug was intended for self‑consumption.
Bearing this in mind and at the same time bearing in mind this is the first time the defendant has committed this offence, I am persuaded to adjust the sentence slightly downward.
In all the circumstances, I consider a notional sentence after trial of 9 years and 3 months is appropriate.
The defendant pleaded guilty at the earliest opportunity and is, for this reason, entitled to a one-third discount. Taking into account the whole circumstances, including what counsel said on the defendant’s behalf, I am of the view that this is the extent of discount the defendant is entitled to.
In my judgment, the sentence to be imposed is a fair, just, and balanced one in all the circumstances of the case and of the defendant.
For these reasons, I sentence you to an immediate imprisonment term of 6 years and 2 months.