HKSAR v. CHEUNG YUK SIM

DCCC 1277/2023

[2025] HKDC 807

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1277 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The Defendant pleaded guilty to a charge of trafficking dangerous drugs, namely 20.75 grammes of a solid containing 20.12 grammes of cocaine.

Summary of facts

2.  On 27 May 2023, at around 0050 hours , the police intercepted a taxi in Sai Yee Street, Mongkok when the Defendant was a front seat passenger acting furtively.

3.  2 lots of drugs, cash and one mobile phone were found :-

(a)  from the Defendant’s right hand with a piece of tissue wrapped with 3 plastic bags containing 0.85 grammes of a solid containing 0.82 grammes of cocaine;

(b)  from her underpants, a transparent bag containing 69 plastic bags containing 19.9 grammes of a solid containing 19.3 grammes of cocaine;

(c)  from her sling bag, there were $32,251.2 and one mobile phone.

4.  Under caution, the Defendant said that all the drugs were for her own consumption. She bought the drugs for about 1,300 and $8,000 receptively about 2 hours before the arrest.

5.  The estimated street value of the drugs were about $22,232.60.

Criminal record

6.  The Defendant has one conviction of trafficking dangerous drugs in 2015 and was sentenced to 9 years imprisonment.

Mitigation

7.  The Defendant is now aged 26.  She used to live with her mother in Tsuen Wan.  However, her mother is extremely disappointed on her and refused to visit her in prison.

8.  The Defendant dropped out from school at Form 2 and started to mix with some undesirable friends who got her into trouble and ended up in prison for 9 years.

9.  After obtaining bail in another offence, the Defendant found a job in a sauna place, but the business has deteriorated sharply in 2023. The Defendant could not earn enough to support herself.  She took drugs again and committed the present offence while she was on bail for HCCC  411/2023.

10.  In her mitigating letter, she said that she is very remorseful for what she has done. Now she has found faith in Christianity and promised to stay clean in the future.

Sentence

11.  This is a case concerning 20.12 g of cocaine, as such, the Henry Jane Yusuph[1] case’s 6 steps approach in sentencing is applicable.

Step 1: the relevant guideline

12.  According to HKSAR v Huang Ruifang[2] that for the quantity of drugs in the present case, it falls into the sentencing bracket of 5 to 8 years imprisonment

Step 2: the Defendant’s role and culpability

13.  The role and culpability of the trafficker is an important consideration in identifying the starting point for this offence.

14.  The defence said that the Defendant was at the bottom of a courier chain.  I disagree.

15.  As said in HKSAR v Islam Shafiqul, McWalters JA held that:

“(the respondent)  asserted that the appellant’s role was more than that of a mere courier. Determining whether the appellant had a more culpable role in the commission of this offence depends on what can be inferred from the Summary of Facts which he admitted and which was used for his sentencing.” (From para 63 of the Henry Jane’s case)

16.  In the present case, the drugs were packed into 72 (69 + 3)  small packets.  Estimated street value was about $22,000.  All these small packets were ready for re-distribution and for sell.  She was the front seat passenger with 3 packets in her right hand.  The defence said that these 3 packets were for her own use.  Again, I disagree.  Why would she carry them in her hand when the other 69 packets were in her underpants?

17.  As she was the front seat passenger, that means when the window was down, she could pass on the drugs to the buyer (s).  In her sling bag, she also has a large sum of cash of about $32,000 with different demonizations bearing in mind that she made less than $10,000 per month.  This money was clearly related to drug trafficking.

18.   As said in paragraph 64 of the judgement of Henry Jane’s case “actual and direct trafficking of dangerous drugs to others on the street is more serious than where a Defendant’s purpose cannot be proved or explained”.

19.  I conclude that she is a direct street trafficker.  She will be sentenced as a direct trafficker.

20.  In such circumstances, the notional starting point should be enhanced by 6 months in view of her role and culpability.

Step 3: the relevant band within the guideline

21.  The starting point of 20.12 grammes of cocaine attract a sentence of 5 years 9 months.

Step 4: Aggravating factor

22.  The defence accepted that there are aggravating factors that warranted an upward adjustment of 3 months.  She committed the present offence while on bail for HCCC  411/2023 and one previous conviction of the same offence.

Step 5: Mitigating factor

23.  The Defendant committed the present offence due to financial circumstance.  It was clear from the case of Henry Jane that personal circumstances account for little in sentencing, not to mention that dire financial situation is never a mitigating factor to be considered.  Otherwise, it send a wrong message to the public especially to the drug syndicate. Nonetheless, the Defendant is entitled to 1/3 discount of her guilty plea. 

The sentence

24.  The starting point is  5 years 9 months plus 6 months ( for her role and culpability )  plus 3 months ( aggravating factors )  , that arrives at 78 months, given the 1/3 discount, the sentence reduces to 52 months.

Step 6: Totality

25.  The final stage of the sentencing process is to stand back and look at the overall sentence passed to make sure that it is fair and just.  Taking into account of the circumstances of the offence and the submission on behalf of the Defendant, I conclude that the sentence is appropriate and is not out of proportion to the Defendant’s overall criminality.

Sentence

26.  The Defendant is order to serve a period of 52 months, which is 4 years 4 months imprisonment.