HKSAR v. HAN YIN HIU

HCCC 115/2024

[2025] HKCFI 471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 115 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs before Magistrate Ms. Stephanie Tsui and was committed, on 11 April 2024, to the Court of First Instance for sentence.

2.  Particulars of the offence are that the defendant on 2 April 2022, at room 2110, 21^st floor, Hoi Yan House, Hoi Fu Court, No.2 Hoi Ting Road, Tai Kok Tsui, Kowloon, unlawfully trafficked in a dangerous drug, namely, 8.63g of a crystalline solid containing 8.49g of methamphetamine hydrochloride (commonly known as “ice”).

SUMMARY OF FACTS

3.  Police officers conducted an anti-narcotics operation at Hoi Yan House, Hoi Fu Court, Mong Kok in the evening of 2 April 2022, laying ambush at a staircase on the 21^st floor at around 8:30pm.  Hoi Yan House is a public housing estate, with a man named Lau Kam Hung (劉金洪)  (“Lau”)  as the registered tenant of flat 2110.

4.  At around 9:20pm, a male and a female appeared on the 21^st floor and rang the doorbell of flat 2110 (“the flat”).  The defendant opened the door and gate of the flat, whereupon the police immediately intercepted her and entered the flat.  They found the said Lau lying in a bed inside the flat.

5.  The flat was around 150 square feet in size, with a kitchen and a bathroom but no bedroom.

6.  The defendant was searched.  6 re-sealable plastic bags containing a total 8.63g of crystalline solid was found from her brassiere.  She also had with her a mobile phone and HK$74 in cash.

7.  The defendant was arrested for trafficking in a dangerous drug, and she claimed under caution that the drugs were for her own consumption.

8.  In the subsequent video recorded interview, the defendant claimed that the ‘ice’ found on her were given to her for free by the said Lau.  She only made the acquaintance of Lau a few months ago.

9.  CCTV footages show the defendant arriving at the flat about an hour before her arrest.

10.  Upon search of the flat, more dangerous drugs were found.  They were to become the subject matter of one count of trafficking in dangerous drugs brought against the said Lau in HCCC 114/2024.  

11.  In April 2022, the average retail price for methamphetamine was HK$572 per gramme. The ‘ice’ found on the defendant could have been sold at street level to drug abusers for HK$4,936.36.

12.  By her admission to the summary of facts, the defendant had admitted that she was in possession of the ‘ice’ for the purpose of trafficking at the material time.

PREVIOUS CONVICTIONS

13.  The defendant has 6 previous convictions.  Her first 2 convictions were both for possession of dangerous drugs, for which she was fined $1,000 and put on probation respectively in 2005 and 2008.  She was in breach of the Probation Order and was ordered to be detained in the Drug Addiction Treatment Centre upon the discharge of the Order in May 2011.

14.  In September 2011, the defendant was convicted of one charge of trafficking in dangerous drugs in the District Court and sentenced to 42 months’ imprisonment.

15.  She was next sentenced 10 years later in 2021 for gambling in a gambling establishment on two occasions, for which she was fined.

16.  The defendant’s last conviction was in July 2022 for ill-treatment or neglect by those in charge of a child or young person, when she was sentenced to 2 months’ imprisonment.  She was last released from jail custody on 6 July 2022.  

BACKGROUND AND MITIGATION

17.  The defendant was born in September 1972 and is 52.  She was educated up to Secondary 5 level in mainland China.  She had been married twice but is now divorced and is not in contact with her ex-husbands.  

18.  The defendant raised her 25 year old daughter and 9 year old son as a single mother. Her parents who are both in their 70s live in Hunan Province with the defendant’s siblings.  

19.  The defendant was relying on CSSA before her arrest.  She used to live with her son but after her commission of the offence of neglecting him, her son has been staying at a children’s home.  

20.  The defendant stopped relying on CSSA and found a job at a games centre earning about $10,000 per month, hoping a steady income would allow her to be reunited her son eventually.  

21.  Since the defendant’s daughter was unemployed, the defendant was under financial pressure taking care of her family and was unable to make ends meet.  She foolishly tried to earn some quick money and committed the present offence.  

22.  Mr. Cheung for the defendant told the court that the defendant promises to find a job after her release and lead a law abiding life.  She has been taking part in church activities while in remand and has joined many career studies courses.  She had completed a Hygiene Manager Course, an Introduction to Child Development course, and a self-management of pain: Back and Neck course.

23.  Mitigation letters from Pastor Poon and Father John were submitted, both seeking leniency on behalf of the defendant.  

SENTENCING CONSIDERATIONS

24.  The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is that of life imprisonment and a fine of $5 million.  

APPLYING HERRY JANE YUSUPH

25.  The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1]are applied as follows.

Step 1: The applicable guideline tariff bands

26.  For 8.49g of “ice”, the applicable guideline tariff band is that of 3 to 7 years’ imprisonment.

Step 2: The defendant’s role and culpability

27.  Based on the summary of facts, the only reasonable inference is that the defendant was in possession of the dangerous drugs either as a courier or storekeeper, and she is to be sentenced on this basis.  

Step 3: The relevant band within the guidelines

28.  Based on my finding of the defendant’s role and culpability, I adopt a starting point of 6 years 5 months, which is an arithmetical application of the tariff.

Step 4: Aggravating factors

29.  This is the defendant’s second conviction for the offence of trafficking in a dangerous drug.  As Mr. Cheung rightly pointed out, this is an aggravating factor that must be considered by the court.  Given that the last similar conviction was more than 13 years ago, and there had not been any drug related convictions between that and the present conviction, I will exercise my discretion and enhance her sentence by 2 months, leading to a notional starting point of 6 years 7 months.  

Step 5: Mitigating factors

30.  I understand how difficult it must have been for the defendant to raise two children on her own.  Be that as it may, given the serious nature of the offence, in particular the need for the sentence to have a deterrent effect, I find that there are no mitigating factors that would justify a reduction in sentence apart from the defendant’s plea of guilty.

31.  Having said that, I am impressed by the defendant’s effort to improve herself while in remand and would exercise my discretion to grant her a 1 month reduction in sentence on this basis.

32.  The defendant pleaded guilty at the committal stage and is to be granted the full one-third discount, taking the sentence down to 52 months’ imprisonment. 

Step 6: Totality

33.  From the perspective of the totality sentencing principle, I find that in the circumstances, the final sentence is a fair, just and balanced sentence.  

FINAL SENTENCE

34.  The defendant is sentenced to 4 years 4 months’ imprisonment.