HKSAR v. SITI ALJASIAH

DCCC 1067/2025

[2026] HKDC 807

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO 1067 OF 2025

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant, a Form 8 holder, pleads guilty to two charges of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134.

2.  The dangerous drug in Charge 1 is:

81.40 grammes of herbal cannabis.

3.  The dangerous drugs in Charge 2 are:-

(i)  24.32 grammes of herbal cannabis;

(ii)  5.11 grammes of cocaine;

(iii)  4.00 grammes of 3,4-methylenedioxymethamphetamine (MDMA); and

(iv)  1.22 grammes of tetrahydrocannabinol (THC).

FACTS

4.  Briefly, the facts were that at about 1817 hours on 9 January 2025, the defendant was intercepted by the police when she was returning to her residence located at Room 10 (“the Room”), Flat B, 9/F, Yee On Mansion (“the Building”), No. 6A-6B O’Brien Road, Wan Chai.  Upon search, the dangerous drugs particularized in Charge 1 in 50 plastic bags were found in the defendant’s possession.

5.  The defendant was arrested for the offence of Trafficking in a Dangerous Drug.  Under caution, the Defendant said a friend of her gave her the cannabis for her to sell for profits.

6.  The police also found a key to the Room, an entrance access card for the Building and cash HK$2,000 on the Defendant.

7.  House search was conducted at the Room where the 4 types of drugs, particularized in Charge 2, herbal cannabis, cocaine, MDMA and THC respectively in 13 plastic bags, 11 plastic bags, 7 plastic bags and 8 bags, were found.

8.  Some notebooks depicting some business records were also seized in the Room.

9.  Under caution in a video recorded interview, the Defendant said she lived alone in the Room for about a month, and the rent was paid by a female friend of her but she did not have her friend’s contact details; only she had the key to the Room; she was aware of the drugs inside the Room, although she did not know what dangerous drugs they were;  her friend asked her to take care of the Room; and she wrote down the contents in the notebooks as per instructions.

10.  The approximate street value of the cocaine seized is HK$6,162 and the herbal cannabis is HK$20,932.

11.  At the material times, the defendant was in possession of the dangerous drugs seized for the purpose of unlawful trafficking.

CRIMINAL RECORD

12.  The defendant has a clear record.

THE DEFENDANT’S BACKGROUDN AND MITIGATION

13.  Mr Pannu, counsel for the Defendant, has written full mitigation on the defendant’s behalf.  Mr Pannu has ably set out the legal principles and also the guideline cases regarding the trafficking of cocaine, MDMA, cannabis and THC.

14.  The defendant is now 37 years old and is single.  She was born in Indonesia. She was educated in Indonesia through high school.  She came to Hong Kong legally in 2011 as a domestic helper, but after her contract ended, she filed for a non-refoulement claim in late 2021 or early 2022 and was released on a Form 8 document. Prior to her arrest, the defendant relied on an ISS allowance from the Government of around HK$1,800 and a room subsidy. That was not sufficient for her to survive in Hong Kong.

15.  Mr Pannu told the court that the Defendant is not a drug addict.  The defendant said she had a friend called Junaria, who was in some trouble, and as she also lost her ISS support, Junaria allowed her to stay at her place (the Room)  and requested her help in watching over the drugs and to assist in what she was asked to do.

16.  Mr Pannu said that the Defendant understood that her best mitigation is her early plea, remorse, and her clear record.

17.  Mr Pannu cited several cases and made submissions on what he considered to be the appropriate sentence for each charge and for overall culpability.

GUIDELINES AND ARITHMETIC STARTING POINT

18.  The sentencing guidelines in relation to the trafficking of herbal cannabis and cannabis resin were set out in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329.  For the quantity under 2,000 grammes, the relevant guideline band would be up to 16 months’ imprisonment, which is applicable to the quantity of drugs involved in this case (81.40 grammes in Charge 1 and 24.32 grammes in Charge 2).

19.  As for cocaine, in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, it was held that the guidelines for heroin trafficking in R v Lau Tak Ming and others [1990] 2 HKLR 370 was also applicable to the sentencing of cocaine trafficking.  In the case of Lau Tak Ming, trafficking in up to 10 grammes of heroin would attract a term of imprisonment between 2 and 5 years.  For 5.11 grammes of cocaine narcotic involved in this case, by arithmetic calculation within this guideline band, a starting point of 42 months’ imprisonment would be reached.

20.  The guidelines for trafficking in MDMA and ketamine were laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  Between 1 to 10 grammes of MDMA or ketamin, the starting point for sentence should be between 2 and 4 years’ imprisonment.  For 4.0 grammes of MDMA narcotic involved in this case, by arithmetic calculation within this guideline band, a starting point of 32 months’ imprisonment would be reached.

CONSIDERATION

21.  In sentencing the defendant, I have borne in mind the facts of the case, the background of the defendant and all the matters urged on the defendant’s behalf by her counsel.

DEFENDANT’S ROLE AND CULPABILITY

22.  Regarding the defendant’s role and culpability, in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, the Court of Appeal said, at para 60, “Absent an admission, or direct or circumstantial evidence, establishing that he is himself dealing with dangerous drugs to others, the courts have generally treated him as a courier or storekeeper, to which the guidelines apply arithmetically.”  In the present case, upon her arrest for Charge 1, the defendant under caution said she was involved in the sale of drugs for profits.  Upon further caution after the drugs particularized in Charge 2 were found, the defendant explained that the drugs were already in the Room and her friend paid the rent, her role was to watch over the drugs, and she also made the notes of sale on her friend’s instruction.  I accept the defence submission that the defendant was a storekeeper, a courier-cum-record keeper, with small-scale assistance in sales as well.

CHARGE 1

23.  For Charge 1, in view of the very small quantity of herbal cannabis involved (81.40 grammes)  and taking into account of the defendant’s role in this incident, I adopt a starting point of 3 months’ imprisonment.  The only mitigating factor is the Defendant’s timely plea. Full credit should be given to her for her plea.  After one-third discount, the Defendant is sentenced to 2 months’ imprisonment.

CHARGE 2

24.  Charge 2 involves four types of drugs.

25.  In view of the very small amount of the herbal cannabis (24.32 grammes)  and the THC (1.22 grammes)  involved in Charge 2, I am satisfied that they do not add to the culpability of the defendant in trafficking in the remaining cocaine and MDMA.

26.  Having excluded the herbal cannabis and THC, the total weight of the remaining cocaine narcotic to be calculated in this case is 5.11 grammes and the MDMA narcotic is 4.0 grammes.

27.  Adopting the “individual” approach to sentence based on the quantity alone, the arithmetic starting point for trafficking in 5.11 grammes of cocaine would be just over 42 months’ imprisonment and for 4.0 grammes of MDMA would be just over 32 months’ imprisonment.  By adding the two starting points, the overall starting point would be 74 months and which is clearly excessive.

28.  I am satisfied that the “combined” approach to sentence is appropriate.

29.  In HKSAR v Islam S M Majharul [2020] 3 HKLRD 146, the Court of Appeal set out the methodology to be used in sentencing a defendant who was found guilty of trafficking in multiple drugs: “24. The combined approach involves the calculation of the applicable sentence for the more or most serious drug (in terms of potency), and then adjusting the sentence upwards to take into account significant quantities of other (less serious)  drugs.”

30.  In this case, in terms of potency, cocaine is the most serious drug and I therefore take cocaine as the base drug for sentencing and make adjustments for the MDMA involved.  Taking cocaine as the base drug and taking into account of the role and culpability of the defendant who was not a mere courier or storekeeper but also involved in small-scale assistance in sales, I adopt a starting point of 45 months’ imprisonment (an increase of 3 months from arithmetic starting point of 42 months for the cocaine narcotic involved).

31.  It is now incumbent on me to determine by how much this starting point should be enhanced to allow for the quantity of MDMA.

32.  The Court of Appeal in HKSAR v Chan Yuk Leong CACC  318/2013 applied the 3 tests to cross-check the starting point in a charge involving multiple drugs.

Absurdity test

33.  In this case, the total quantity of cocaine (5.11 grammes)  and MDMA (4.0 grammes)  narcotics is 9.11 grammes.   By applying the absurdity test, if all the drugs were cocaine, the starting point based on quantity alone would be 56 months.

Conversion test

34.  By applying the “conversion test”, if the MDMA (4.0 grammes)  is to be converted to cocaine, the more serious drug, the total quantity of drugs would be equivalent to 7.33 grammes of cocaine and that would attract a starting point of about 50 months. 

Ratio test

35.  Applying the ratio test, given the total quantity of cocaine narcotic and MDMA narcotic is 9.11 grammes, the amount of cocaine involved represents just over 56% of the overall quantity whereas the amount of MDMA involved is almost 44%.  The overall arithmetic starting point would be just over 51 months’ imprisonment.

36.  Having applied the 3 means of cross-checking and taken all the abovesaid matters into account including that of the defendant’s role and culpability, I would increase the starting point of 45 months’ imprisonment by 3 months to 48 months to allow for the quantity of MDMA.

37.  As abovesaid, I do not increase the starting point by reason of the fact that the defendant was also trafficking in 24.32 grammes of herbal cannabis and 1.22 grammes of THC as listed in Charge 2, which can be regarded as very small amount and I would ignore it for sentencing purpose.

Aggravating factors

38.  The defendant was a Form 8 recognizance holder at the time of the offence.  As Mr Pannu rightly pointed out, the sentence should be enhanced (HKSAR v Ali Saif [2018] HKCA 358).

39.  I am satisfied trafficking in dangerous drugs affects the community at large and have a significant impact on Hong Kong’s reputation for order and security.  In my view, an enhancement of 6 months’ imprisonment sufficiently reflects the seriousness of the offence and the severity of the adverse impact that the offence has on Hong Kong.

40.  By reason of the defendant’s Form 8 status, I enhance the starting points by 6 months to 54 months.

41.  Another aggravating feature is the multiplicity of drugs.  The defendant trafficked in more than one type of dangerous drug including cocaine and MDMA. As held in Islam S M Majharul, trafficking in 2 or more dangerous drugs is an aggravating factor (also see HKSAR v Yim Hung Lui Ricky, CACC 266/2011).  Therefore, I further enhance the starting points by 3 months making the notional starting point to be 57 months.

Mitigating factor

42.  The only real mitigating factor in this case is the defendant’s timely pleas.  The defendant pleads guilty at the earliest opportunity and is entitled to a one third discount of her sentence, resulting in a final sentence of 38 months’ imprisonment for Charge 2.  I consider this sentence is fair, just and balanced in all the circumstances of the offence and of the defendant.

TOTALITY

43.  The two counts arose from a single course of conduct on the same day.  In my view, both offences can be said to be part of the same transaction.  As such, I order the sentences of Charges 1 and 2 be served concurrently with each other making a total of 38 months imprisonment.

44.  In summary, the Defendant is sentenced to a total term of 38 months’ imprisonment.