HKSAR v. SZE SUK FUNG

DCCC 848/2024

[2025] HKDC 2094

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 848 OF 2024

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REASONS FOR SENTENCE

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1.  Before me, Ms Sze faces three charges on a Charge Sheet as follows.

2.  Ms Sze pleaded guilty to Charge 1 but not guilty to Charges 2 and 3. Prosecution asked that Charges 2 and 3 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  After Ms Sze was convicted of Charge 1, I so ordered.

3.  Charge 1 is Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that she, on 26 October 2023, on a taxi bearing registration mark ST6509, outside Sheung Mei House, Sheung Tak Estate, Tseung Kwan O, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 15.61 grammes of a solid containing 11.57 grammes of cocaine, and 2.00 grammes of a solid containing 1.71 grammes of ketamine.

4.  Charge 2 is Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.

5.  Charge 3 is Possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.

Facts admitted by Ms Sze

6.  On 26 October 2023, at about 0024 hours, outside Sheung Mei House, Sheung Tak Estate, TKO, PC 8020 (PW1)  was alerted by the way in which a taxi ST6509 was driven.  PW1 intercepted the taxi.  Ms Sze was alone inside the taxi seated at the driver’s seat.  PW1 boarded the taxi and, in the presence of Ms Sze, found underneath the taxi intercom a black zipper bag which contained:

(a)  One transparent resealable plastic bag with an orange zipper containing 17 transparent resealable plastic bags with blue zippers containing a total of 4.84 grammes of a solid containing 4.14 grammes of cocaine;

(b)  Another transparent resealable plastic bag with an orange zipper containing 30 transparent resealable plastic bags with blue zippers containing a total of 8.53 grammes of a solid containing 5.49 grammes of cocaine; and

(c)  One smaller black zipper bag containing 3 transparent resealable plastic bags containing a total of 2.00 grammes of a solid containing 1.71 grammes of ketamine.

7.  Mr Sze was arrested for Trafficking in dangerous drugs.

8.  The taxi was further searched, in the presence of Ms Sze, by PC 25290 (PW2)  with the following discoveries:-

On the carpet under the driver’s seat

(a)  Another black bag containing (i)  one transparent resealable plastic bag with an orange zipper containing 4 transparent resealable plastic bags with blue zippers containing a total of 1.09 grammes of a solid containing 0.95 gramme of cocaine; (ii)  7 transparent resealable plastic bags with blue zippers containing a total of 1.15 grammes of a solid containing 0.99 gramme of cocaine; and (iii)  one empty transparent resealable plastic bag with a red zipper;

To the left of the driver’s seat

(b)  A black bag containing 6 empty transparent resealable plastic bags with orange zippers and 25 empty transparent resealable plastic bags.

9.  Ms Sze was also found to be in possession of cash of $5,730 and two mobile phones (each with a SIM card).

10.  The taxi has been leased to Ms Sze since 5 September 2023.  When it was handed over to Ms Sze, there was no drug in the taxi.

Criminal record

11.  Ms Sze has a clear record.

Antecedents

12.  Ms Sze is aged 45 (43 at the time of the offence), educated to F5 level.  She worked as a taxi driver.  Ms Sze’s mother (67)  is a retiree.  Ms Sze’s younger brother (42)  is working.

Mitigation

13.  Mr Raymond Yu of counsel assigned by the Director of Legal Aid mitigated on behalf of Ms Sze.  The following is a summary of the mitigation submissions.

14.  Ms Sze is single and is the eldest daughter from a grassroot family. Her parents divorced when she was a teenager.  Since then, she lived with her mother (in court to give her support)  and younger brother in rented housing in Yuen Long.

15.  Ms Sze’s divorced younger brother is a cross-border lorry driver. Because of the nature of his work, he left his young son under the care of Ms Sze since he was 2 years old.  Ms Sze therefore had to take care of her aged mother and young nephew.  She was the breadwinner of the family.

16.  After failure of her logistics business in about 2019 due to social unrest and COVID, Ms Sze turned to work as a supervisor in a facial mask company earning about $18,000 per month in 2020.  However, as the pandemic subsided, she became redundant.

17.  From 2022, Ms Sze became unemployed.  In 2023, she obtained a taxi driver licence.  In July 2023, she started driving a taxi.  The poor economy and other factors meant Ms Sze could only make $4,000 to $5,000 each month. Her frustrations of life led her to taking drugs.

18.  Two months before the offence, her drug supplier enticed her with reward of $1,000 for each delivery of drug.  Ms Sze eventually succumbed to the temptation.  This led to her arrest and conviction.  Ms Sze regrets for her misdeeds.

19.  Ms Sze pleaded guilty showing her remorse.  She has a clear record.

20.  Ms Sze acted on instructions from others, as a courier.  She played a relatively minor role.

21.  The total quantities of dangerous drugs are not substantial: 11.57 grammes of cocaine and 1.71 grammes of ketamine.

22.  The applicable tariff of trafficking in cocaine is recently set out in HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138, at para 62.  For trafficking in between 10 and 50 grammes, the sentence is 5 to 8 years’ imprisonment.  For the purpose of calculation under the cross-checking tests (see below), the corresponding sentence for up to 10 grammes of cocaine would be 2 to 5 years.

23.  The relevant sentencing tariff for trafficking in ketamine is laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, at para 95. For trafficking in between 1 and 10 grammes, the sentence is 2 to 4 years’ imprisonment.  For the purpose of calculation under the cross-checking tests (see below), the corresponding sentence for 10 to 50 grammes of ketamine would be 4 to 6 years.

24.  The arithmetical starting point for 11.57 grammes of cocaine is 5 years and 1 month.

25.  The arithmetical starting point for 1.71 grammes of ketamine is 2 years and 1 month[1].

26.  However, where there are more than one drug involved, instead of simply adding up the starting points of the two drugs, the applicable approach would be the combined approach, as stated in HKSAR v Yip Wai Yin & Anor CACC 80/2003 at para 9(3):

“The methodology of this ‘combined’ approach is first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious)  drugs…”

27.  In the case of HKSAR v Chan Yuk Leong CACC 318/2013, the Court of Appeal adopted 3 tests to cross-check the starting points in sentencing ie Absurdity test, Conversion test, and Ratio test.

28.  The three tests bear the following results:-

(a)  Absurdity test: 13.28 grammes of cocaine – 5 years and 2 months;

(b)  Conversion test: 11.87 grammes of cocaine – 5 years and 1 month; 33.71 grammes of ketamine – 5 years and 2 months;

(c)  Ratio test: (0.871 x 62 months)  for cocaine + (0.129 x 49 months)  for ketamine = c 54 months for cocaine + c 6.3 months for ketamine = c 60 months.

29.  The proper approach (six-step approach)  to sentencing drug trafficking offenders has been set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290:

(i)  Identify the relevant guideline band applicable to the quantity of drug concerned;

(ii)  Assessment of role and culpability of the defendant;

(iii)  Identify where in the relevant band of the guidelines the defendant comes;

(iv)  Aggravating factors;

(v)  Mitigating factors; and

(vi)  Totality: the overall sentence shall be fair, just and balanced to the defendant.

30.  Mr Yu submitted that in view of the three test results, the starting point should be between 5 years’ and 5 years 2 months’ imprisonment.

31.  Mr Yu submitted that even though cocktail drugs are involved, the court is invited not to enhance the sentence in view of Ms Sze’s clear record and of the fact that the starting point is already a high one.

32.  Mr Yu passed on the pleas of Ms Sze and her mother for a lenient sentence so Ms Sze may be released soon to resume her family responsibilities.

33.  Mr Yu submitted on behalf of Ms Sze a total of 3 mitigation letters written in Chinese respectively by Ms Sze herself, her mother, and her ex-employer.  The contents generally are that Ms Sze has deeply reflected on her serious mistakes and is very regretful; that she promises not to re-offend; that she is a diligent and serious worker.  The letter writers asked for a chance for reform and a lenient sentence for Ms Sze so she may re-unite with her family earlier.

34.  Mr Yu also submitted on behalf of Ms Sze a certificate of employment issued by another ex-employer and a Death Certificate of Ms Sze’s father who passed away in January 2023.

Sentence

35.  My results of the 3 cross-checking tests differ slightly from Mr Yu’s results and are as follows:-

(a)  Absurdity test: 13.28 grammes of cocaine – 62.952 months; 13.28 grammes of ketamine – 49.968 months;

(b)  Conversion test: 12.095 grammes of cocaine – 61.886 months; 34.065 grammes of ketamine – 62.439 months; and

(c)  Ratio test: (87% x 62.952)  for cocaine + (13% x 49.968)  for ketamine = 54.768 + 6.496 = 61.264 months.

36.  With respect to Mr Yu, I shall follow my own results.

37.  I will adhere to the six-step approach set out in Herry Jane Yusuph (supra).

38.  With the 11.57 grammes of cocaine (the more potent drug)  in this case alone, the arithmetical starting point according to the tariff would be 61.4 months.  Because of the presence of the ketamine (though by comparison not a large amount), the starting point before consideration of other factors must be higher; but it cannot be higher than 63 months which is the absurdity figure for cocaine.

39.  To be fair to both parties, I shall adopt an initial starting point of 62 months’ imprisonment.

40.  Looking at the evidence, Ms Sze appears to be no more than a courier of drugs.  So there is no need to enhance the starting point on the ground of any higher role or culpability.

41.  The presence of more than one type of serious drug is an aggravating factor which must be addressed by an increase of the starting point.  Hence, I increase the starting point by 3 months.

42.  Ms Sze pleaded guilty in good time earning for herself the customary 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentence reduction.  The best that I can do for Ms Sze in tempering justice with mercy is to ignore the decimal places and round down to the nearest whole month after taking the 1/3 discount.

43.  I stepped back to see if the sentence thus resulting from the above calculation is fair, just and balanced having regard to the overall circumstances of the offence and the offender.  This is a case where Ms Sze used a taxi to carry a huge number of plastic bags of cocaine for the purpose of delivery.  She did it for reward.  The presence of ketamine catered to a wider market and added more harm to the community.  I am satisfied that the sentence thus obtained is fair, just and balanced having regard to those circumstances.

(Ms Sze, please stand)

44.  For Charge 1, the sentence is 43 months’ imprisonment.