HKSAR v. CHU WING KIU KIKKI

HCCC 210/2023

[2024] HKCFI 2403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 210 OF 2023

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REASONS FOR SENTENCE

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1.  Defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in dangerous drugs. She admits that on 1 May, 2022 at Flat E, 57/F, Tower 2, Hampton Place, No. 11 Hoi Fan Road, Tai Kok Tsui, Kowloon in Hong Kong (“the flat”), she unlawfully trafficked in dangerous drugs, namely, 82.02 grammes of a solid containing 68.9 grammes of cocaine. She was committed for sentence on 27 July 2023 and before me, she confirms her plea as well as her agreement to the Summary of Facts.

THE FACTS

2.  At about 10:25 hours on 1 May 2022, police mounted an anti-narcotics operation at the flat.  At about 11:16 hours of the same day, PC 15565 (“PW1”)  disguised as a building security officer and rang the doorbell of the flat.  Defendant opened the door.  PW1 immediately pushed open the door and enter the flat revealing his police identity.  Defendant stepped back and shouted “Hubby! Hubby!” Other officers also entered the flat to give assistance.  PW1 explained to Defendant the reason for entering the flat.  A male was found lying on the bed in one of the bedrooms.  

3.  Search warrant was executed.  The flat was searched and the police found 5 plastic bags contained in a blue book shaped box (E1)  on a grey/silver desk in a room near the bathroom containing the subject-matter of cocaine as particularized in the charge.  And in the drawer of the same grey/silver desk, the police also found 2 plastic bags containing a total of 78 plastic bags and also 1 electronic scale.

4.  Defendant was found in possession of cash HK$4,820 and one mobile phone.  She was arrested and cautioned for Trafficking in a dangerous drug.  Under caution, she said all the dangerous drugs in the blue box belonged to her and were for her own consumption.

5.  In a subsequent video-recorded interview, the defendant said that the male found in the flat was her boyfriend and they have been living in the flat for 3 months.  Her boyfriend had no knowledge of her drug habit, or the dangerous drugs found inside the flat.  

6.  She further told the police that a male asked her to keep the cocaine for him without a reward and he would take it back later.  She just kept the dangerous drugs for him and also for her own consumption.  She said she had consumed cocaine for about 4 months and her daily intake was 1-2 grammes.

7.  The defendant further said that the re-sealable plastic bags and electronic scale seized belonged to her.  She used them for carrying and weighing the cocaine as she did not wish to overdose.  The cash HK$4,820 seized was from her previous job.  She had no employment or other income.

8.  According to the Narcotics Bureau, the market retail value of the cocaine seized was HK$110,367.  

9.  In the committal proceedings, the defendant agreed with the summary of facts and accepted that she unlawfully trafficked the cocaine as particularized in the charge.

MITIGATION

10.  Defendant is now 26 years old, single.  She was educated up to F.4 level and she has a clear record.  Her parents divorced since she was 5 years old.  She was raised by her mother and has little contact with her father.  She had worked at odd jobs and her last employment before arrest was at a hair salon earning HK$18,000 per month.  She has been unemployed since 2020 due to the pandemic and was then supported by her boyfriend.  Due to bad influence, defendant became a drug addict.  She was tested positive in her urine test upon being remanded into jail custody. 

11.  Ms. So, counsel for the defendant, told the court that the defendant was told by a male trafficker to store the drugs in order to obtain some free drugs and she foolishly agreed to do so.  She was very remorseful and co-operative with the police since she was arrested.  The defendant’s mother had shown full support to her daughter.  She visits the defendants regularly since she has been in custody.  The defendant treasures the love and care of her mother, and she will seize the opportunity to reflect and reform herself while in custody.  A mitigation letter written by her mother was submitted to plead for leniency emphasizing that defendant is kindhearted and good natured.

12.  According to the tariff laid down by the Court of Appeal, Ms. So submitted that the present quantity of drugs is equivalent to a prison sentence of a starting point of around 8 years and 6 months.  Ms. So emphasized the defendant’s role as a mere storekeeper.  She also urged the court to consider further discount on account of her claim of self-consumption of the drugs.  She prays in aid the positive urine test result when defendant was remanded into jail custody.

13.  Ms. So further prayed in aid a letter written by Father Wotherspoon who states that Defendant had been proactive in assisting him in the anti-drug campaign work for Voice for Prisoners by sharing her story on the internet and social media.  

14.  Ms. So has said all she can say on behalf of Defendant.  She emphasized defendant’s role as being keeping the cocaine for another male while consuming a portion of the quantity to feed her drug habit.  In truth, not much can be said in mitigation for an offence of this nature.  The defendant’s best mitigation is her plea of guilty, for which she will be entitled to a full one-third discount.

SENTENCING

15.  It is well established that trafficking in a dangerous drug is a very serious offence which carries a maximum sentence of life imprisonment and a fine of HK$ 5 million.  I have considered the approach to sentencing those that traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  It was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho[2024] HKCA 150.

16.  In the approach to sentencing this Defendant, six steps have been identified which the court should take.  They are assessing the gravity of the offence and the applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors and, lastly, passing a sentence which is fair, just and balanced in all of the circumstances of the offence and the defendant.

17.  The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized.  

18.  The tariff for trafficking the drug cocaine is aligned to the tariff for trafficking heroin as set out in the authority of R v Lau Tak Ming & Others [1990] 2 HKLR 370.  The Court of Appeal has decided in that case that where between 50 and 200 grammes of heroin is trafficked, the starting point should be between 8 to 12 years’ imprisonment.  According to mathematical calculation, the appropriate sentence for 68.9 grammes of cocaine will be 8.5 years. 

19.  The second step of the six steps is to assess the defendant’s role and culpability based on the evidence.  Through her counsel, Defendant admitted that she was abusing drugs and was told to help a male to store the drugs in order to obtain free use of drugs.  She foolishly agrees to store all the cocaine seized by the police during the search of the flat.  I would therefore assess her role as a storekeeper, which is in the lower end of culpability. 

20.  Therefore, taking into account the third step of where within the guidelines the defendant should lie, his sentence will be determined by the relevant tariffs and the quantity of dangerous drugs involved.

21.  Accordingly, I find the appropriate starting point to be 8 years and 6 months’ imprisonment.

22.  The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors.  I do not find any aggravating factors.

23.  As for mitigating factors, I first turn to Defendant’s claim for self-consumption.  In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, it was held that depending on the circumstances, the discount for self consumption should fall somewhere between 10% and 25% of the basic starting point.  However, it is only applicable when it is established that a “significant proportion” of the total drugs was for self-consumption.  When a less than significant proportion of unquantifiable drugs is accepted as being for the defendant’s own consumption then a sentencing court has a discretion to award a discount from the starting point taken for sentence to reflect this fact (see HKSAR v Liu Ming Sze [2017] 1 HKLRD 297).  I was not told the exact quantity intended for Defendant’s own consumption but based on the mitigation submitted, in any event, it would not be a significant proportion especially when her role was only a storekeeper and she did not even pay a penny for the drugs.  However, since there is positive sign for self-consumption as evidenced by her urine test results, I am still prepared to exercise my discretion to first reduce 3 months from the starting point.

24.  The starting point would be further reduced by 2 months for her contribution to Father Wotherspoon’s campaign and an additional 1 month for her hitherto clear record.

25.  Lastly, because of the further mitigation I received, I am prepared to further reduce the sentence by 37%, which includes the one-third discount for the defendant’s plea of guilty.  This will result in a sentence of 63 months which is 5 years and 3 months’ imprisonment.  

26.  The last step to take is to stand back and look at the overall sentence in order to ensure that it is a fair, just and balanced sentence in all the circumstances of not only the offence but also the defendant.  I have no doubt that it is such a sentence.

27.  The defendant is therefore sentence to 5 years and 3 months’ imprisonment.