HKSAR v. CHENG SHU YU

DCCC 1024/2024

[2025] HKDC 1342

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1024 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded the guilty to a charge of trafficking in a dangerous drug, namely, 6.85 g of cocaine.

Summary of facts

2.  At about 9:32 pm on 10 March 2024, the police arrived at Temple Mall South outside shop “HK Diner” to put the Defendant under observation.

3.  At about 9:50 pm, the Defendant was intercepted for a search, the Defendant took out a transparent bag containing:-

(a)  6 plastic bags containing a total of 0.77 g of a solid containing 0.65 g of cocaine.

(b)  24 plastic bags containing a total of 6.81 g of a solid containing 6.20 g of cocaine.

4.  The Defendant was arrested for the offence of trafficking in dangerous drugs.  Under caution, the Defendant admitted knowledge and ownership of the drugs being seized.

5.  In the video record of interview, the Defendant further said that:-

(a)  She was off duty at about 5 pm on that day. While she was on the way to the toilet, she was intercepted by police.

(b)  In the evening on 9 March 2024, the Defendant went to Kwun Tong Promenade for a walk due to low mood. A Chinese male approached her and asked her if she was unhappy. He also asked her if she wanted to earn money. She replied the positive.

(c)  The male then passed her the drugs and some tools, including two electronic scales. The Defendant put them inside her handbag.

(d)  The male told her that he would phone her if anyone “needed drugs”. She would only know the fee arrangement (remuneration)  when she received the call from him. She did not have anyway to contact the male.

(e)  She has not yet received any calls from anyone to buy drugs before she was arrested.

6.  The street value of the Cocaine was about $9,325.

Criminal record

7.  The Defendant has one record of possession of dangerous drugs in 2020.  She was placed on probation for 18 months.

Background

8.  The Defendant is now age 30. Single.  She previously worked as a waitress with a monthly earning about $15,000.

9.  In January 2024, the Defendant discovered that she was pregnant after she broke up with her boyfriend.  She had an abortion in China in mid-February 2024.  To finance this medical procedure, she borrowed $14,000 from friends. As a result of which, the Defendant felt depressed and relapsed to drug abuse.

Sentence

10.  When sentencing the Defendant, I take the 6 steps approach as set out in HKSAR v Herry Jane Yusuph[1].

Step 1: Assessment of the gravity of offense

11.  In the presenting case, there is one type of dangerous drugs.  That is 6.85 g of cocaine.  By applying the sentencing tariff for cocaine in HKSAR v Huang Ruifang[2], it is 2 to 5 years’ imprisonment for trafficking cocaine up to 10 g.

Step 2: The Defendant’s role and culpability

12.  I disagree with the defence that the Defendant was merely a courier for the following reasons :-

(a)  The Defendant said under caution that she wanted to earn money (bearing in mind she has a low income job and also owed her friends $14,000). The male who gave her the drugs, also provided her with two electronic scales. The electronic scale clearly is for the purpose to weight the amount of drugs. When the Defendant was arrested, those drugs were individually packed into 30 packets.

(b)  These 30 packages, were ready for distribution and for sale. The Defendant was intercepted in a public area.

(c)  As such, the Defendant had commercial and financial interest in selling those drugs to others to earn money.

13.  With all this evidence in mind, I conclude that the Defendant is a direct street trafficker.

14.  As said in the judgement of Herry Jane Yusuph’s case, that actual or direct trafficking of dangerous drugs to others on the streets is more serious than where a Defendant’s purpose cannot be proved or explained.

15.  At such, the notional starting point should be adjusted upward for six months.

Step 3: The relevant band within the guideline

16.  For a quantity of 6.85 g of cocaine, it attracts a sentence of four years’ imprisonment.  I adjust the starting point upward for six months in view of the Defendants role and capability.  The total sentence at this stage arrives at four years and six months[3].

Step 4: Aggravating factors

17.  I agree with the defence that there is no aggravating factor in the present case.

Step 5: Mitigating factor

18.  The Defendant committed the present offence because of her situation at that time, she broke up with her boyfriend and she has to go through an abortion.  She was in debt to her friends for $14,000.  No doubt, it was the lowest point in her life.  From all the letters before me, I know she has a very supportive family behind her.  However, as said in Herry Jane Yusuph’s case, personal circumstances will count for little, unless they are exceptional.  Financial pressure and personal matters cannot be regarded as mitigating factors in a crime as serious as the present one.

19.  The defence also said that a small portion of the drugs were for her own consumption and asked this court to exercise its discretion to reduce her sentence by relying on the following reasons:-

(a)  The urine test after her remand showed a cocaine positive result.

(b)  The medical report stated that in 2020, the probation officer referred her to the clinic for addiction problem and suspected mood disorder. The diagnosis were “Dysthemia, ketamine and cocaine used disorder”. The Defendant failed to attend follow-up sessions from 2023 to mid-2024. The psychiatrist has seen the Defendant in 2024 while she was in remand, it was reported that she had no depressive features.

(c)  Some of the district courts decisions do reduce part of the sentences for a claim that a small portion of drugs were for the defendants’ own consumption.

20.  In the case of HKSAR v. Wong Suet Hau[4], Ice [2002] 1 HKLRD 69 at paragraph 34 of the judgement which set out the factors to be considered whether the Defendant is entitled to claim of self-consumption.

21.  In the present case, the prosecution objected to such a claim.  On the other hand, the Defendant elected not to give evidence.  

(a)  The Defendant said that only a small portion is for her own use. Clearly, it failed a significant proportion requirement as stated in the case of Wong Suet Hau.

(b)  The fact that the Defendant is a drug user can also be a drug trafficker. She committed this present offence to earn money. In the present case, there were altogether 30 prepacked individual bags, which means they are ready for distribution and for sale. The Defendant did not say after arrest that a small portion of drugs was for her consumption in the record of interview;

(c)  There was no present of paraphernalia associated with the drugs were found.

(d)  The defence accepts that District Court decisions are not binding on me.

22.  With all the available evidence before me, I concluded that the Defendant’s claim for self-consumption is not made out, she is therefore not entitled to any deduction of sentence.

23.  Finally, I must say that the reason why I refuse to exercise my discretion is because trafficking in dangerous drugs is a very serious offense, it has such a negative and evil impact in our society, including the Defendant and her family. To exercise this discretion generously, it only gives the public a wrong message as the Defendant is not entitled to any further deduction of the sentence.

24.  However, I find the only meaningful mitigation is the timely plea from the Defendant.  As such, she is entitled to 1/3 discount from 4 years and 6 months to 3 years[5].

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 am of the view that a 3 years’ imprisonment is appropriate and is not out of proportion to the Defendant’s overall criminality.

26.  The Defendant is ordered to serve a period of 3 years’ imprisonment.