COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and one charge of possession of dangerous drug. She was committed before me for sentence. In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the drug involved, personal background of the defendant, and mitigation put forward on her behalf.
The facts of the case may be summarised as follows. On 28 August 2023, police officers intercepted the defendant when she was opening the metal gate of a residential flat. A search was conducted in the flat. Dangerous drug was found in various places in the flat.
The total quantity was 13.03 grammes of a crystalline solid containing 12.93 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, and I will call it ‘Ice’. The drug was hidden in a comb and put in a plastic bag placed on a table in the living room.
The defendant was arrested. Under caution, she admitted that she had helped others to deliver drugs to earn some quick money as she could not find a job after the pandemic. This relates to Charge 1. A relatively small quantity of ‘Ice’ was also found in a mini-safe inside the toilet, it is the subject matter of Charge 2.
I was told that the defendant is now 44 years of age. She has a son, 8 years old, now being looked after by her parents. She was educated up to junior secondary level. She was unemployed at the time of the arrest.
The defendant is not a first-time offender. In the year 2000, she was fined for possession of Part I poison. In 2010, for a charge of possession of dangerous drug, she was sentenced to suspended imprisonment and fined for shoplifting. In 2022, she was fined for criminal damage. She has never committed the offence of trafficking in dangerous drugs before.
Learned counsel for the defendant, Mr David Cheung, stressed that the defendant pleaded guilty at the earliest opportunity. He also told the court that the defendant committed the offence as she failed to find employment after the pandemic. Mr Cheung informed the court that defendant was a habitual drug user. The test report upon her remand shows positive result for amphetamine in her urine.
Mr Cheung also urged the court to accept that a proportion of the ‘Ice’ was intended for the defendant’s own consumption. It is said the defendant is not claiming that a large or substantial proportion of the drug seized was for this purpose, but she was asserting that at the time of arrest she was used to consuming up to about half a gramme daily.
The defence submitted a letter written by the defendant in which she expressed remorse. Also produce are letters from two workers of religious body. Both of them believe the defendant is full of remorse and pleads leniency on her behalf.
During remand, the defendant attended religious courses and received certificates. In consideration of the sentence, I have regarded to the sentencing approach as laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
As far as the trafficking charge is concerned, having 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 this case, the Court of Appeal held that for the offence of trafficking in dangerous drugs, if the narcotic content is 10 to 70 grammes of ‘Ice’, the sentence to be considered is 7 to 11 years’ imprisonment.
In the circumstance of the present case, I accept the submission of Mr Cheung that the role of the defendant was one of a courier and she occupied a low position in the hierarchy.
I note the defendant does not have a clear record, but this is the first time she is convicted of the offence of trafficking in a dangerous drug. The record does not amount to an aggravating feature. In all the circumstances, it is my view that a notional sentence after trial of 7 years and 2 months is appropriate.
In connection with the assertion that some of drug was for her own consumption, I have had regard to the Court of Appeal cases of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, and HKSAR v Tam Lei Yun, CACC 159/2015.
Whilst in relation to this claim the defendant elected not to testify, I note the following:
(1) The positive result to amphetamine of a test of her urine conducted when she was in remand, this supports the assertion.
(2) The defendant has a conviction of the offence of possession of a dangerous drug which was back in 2010.
(3) The dangerous drug which is the subject matter of the traffic charge was all found inside the flat, not on the person of the defendant.
(4) Upon arrest and under caution, the defendant admitted that she had helped others to deliver just to earn some quick money, without saying directly and expressly that any of these of this batch of drug was for her own consumption.
(5) She did say the inhaling device found in the toilet was for her to consume ‘Ice’.
(6) She had the ‘Ice’ which is the subject matter of Charge 2 for her own consumption, and the quantity was more than 1.5 grammes, and
(7) She was a CSSA recipient.
It was held by the Court of Appeal in cases like HKSAR v Tam Ling Yuen, Yeung Shek Yung, and Cheung Wai Man that a discount for these reasons should normally only be given when a significant proportion of the drug was intended for self-consumption. The citation of Yeung Shek Yung is CACC 314/2016, and therefore Cheung Wai Man is [2019] 1 HKLRD 817.
In all the circumstances, I am prepared to consider the matter on the basis that the defendant is a drug abuser. However, there is insufficient basis for me to find that a substantial proportion of the dangerous drug which is the subject matter of Charge 1 was for her own consumption. Besides, I have to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed having regard to the quantity asserted.
Moreover, my assessment is that the latent risk for whatever quantity of drug the defendant had intended to reserve for self-consumption was very high. In all the circumstances, I am of the view that the sentence should not be adjusted for the claim of self-consumption.
Charge 2 relates to possession of a relatively small quantity of ‘Ice’. Taking into account my judgment that the latent risk in relation to this batch of drug was high, I adopt 15 months as notional sentence after trial.
The defendant pleaded guilty to both charges before a magistrate, and is therefore entitled to a one-third discount for each charge.
Having considered the whole circumstances, including mitigation submission, I am of the view that one-third is the extent of discount the defendant is entitled to for each charge.
Further, having considered the circumstances of this case and the principles stated in the case of HKSAR v Ngai Yiu Ching, CACC 107/2011 and the totality principle, I consider it appropriate to order the two sentences to run wholly concurrently.
In my judgment, the overall sentence is a fair, just, and balance one in all the circumstances of the case and of the defendant.
For the reasons I have just mentioned I sentence you as follows: Charge 1, 4 years and 9 months; Charge 2, 10 months. I order the two sentences to run wholly concurrently.
As a result you are to serve a total sentence of 4 years and 9 months for the two charges.