HKSAR v. SO KIN FUN (also known as SO KIN FAN)

HCCC 207/2023

[2024] HKCFI 1277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 207 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely 18.3 grammes of a crystalline solid containing 17.6 grammes of methamphetamine hydrochloride, ‘Ice’. He was committed for sentence on 24 July 2023 and today confirms his plea as well as his agreement to the Summary of Facts.

Facts and Mitigation

2.  On 16 August 2021, the defendant boarded a taxi at around 9:05pm along Pui Ching Road near Waterloo Road, Kowloon and asked the taxi driver to take him to Middle Road in Tsim Sha Tsui.  Later, he changed the destination to the Royal Garden Hotel in Tsim Sha Tsui East.  The taxi then turned into Mody Rd and arrived at a roadblock there.  The taxi was intercepted by the police for checking.  The defendant was found looking suspicious and acting furtively by avoiding eye contact with the police officer and pressing his right hand onto the bag that he was carrying.  The defendant was ordered to alight the taxi.  Upon search of the defendant, the police found 5 plastic bags containing the subject-matter, the dangerous drug of the charge, wrapped in tissue paper, inside the bag.

3.  Cash of HK$757.3 and 3 mobile phones were also found on him.  The defendant now admits that at the material time he was unlawfully trafficking in that amount of ‘Ice’. 

4.  The defendant is a man with 23 criminal records starting from 1988 to 2018.  Out of which, 20 are possession of DD or possession of equipment fit and intended for injecting DD.

5.  According to written mitigation, the defendant is now 59 years old, single and educated up to Form 4 level.  His father has passed away and his mother is now 95.  He is still single and he was last employed in a money exchange earning a monthly income of $18,000.  His best mitigation is his plea of guilty.  I have also seen a letter from the defendant. 

6.  Mr Yeung has said all he can say on behalf of the defendant.  The defendant is a self-confessed drug abuser.  Mr Yeung’s instructions are that the defendant bought this quantity of drugs because his friend asked him to deliver the dangerous drug to a place in Tsim Sha Tsui and he expected his friend to give him some dangerous drugs for free because of his assistance, The defendant did not expect any further reward for the delivery of the drugs.  However, Mr Yeung is not suggesting that any proportion of the drugs seized in this case was for his own consumption, and therefore this will not be taken into account in sentencing. 

Sentencing

7.  It is well established that trafficking in a dangerous drug is a very serious offence.  I have considered the approach to sentencing those that do traffic in dangerous drugs as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  That was very recently discussed and reiterated by the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150. 

8.  In the approach to sentencing, six steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly, passing a sentence which is fair, just and balanced in all the circumstances of both the offence and the defendant. 

9.  The first step is to assess the gravity of the offence and identify the applicable guideline according to the drugs seized.  The tariff for the drug methamphetamine hydrochloride is set out in the authority of HKSAR v Tam Yi-chun [2014] 3 HKLRD 691.  In that case, it was held that the sentence for trafficking between 10 to 70 grammes is 7 to 11 years’ imprisonment after trial. Here, we have 17.6 grammes of methamphetamine.  Mathematically speaking, that amount of ‘Ice’ attracts a starting point of 7 years and 6 months’ imprisonment. 

10.  The second step is to assess the defendant’s role and culpability based on the evidence.  The drugs were found in the bag that he was carrying whilst out in public.  In mitigation, the defendant now told me that he was delivering the whole quantity of Ice to a place in Tsim Sha Tsui according to the instruction of a friend in return for some free drugs.

11.  I am satisfied that his role is therefore a mere courier. 

12.  In light of his role and considering the third step of where within the guideline the defendant should lie, I will maintain the starting point of 7 years and 6 months.

13.  The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors.  I find neither any aggravating or any mitigating factors apply or exist in this case other than the defendant’s plea at the earliest opportunity.  Despite the defendant’s numerous criminal records in the past, this remains the first time that the defendant have committed the offence of trafficking in dangerous drugs and therefore I will not enhance the sentence for his past criminal records.

14.  The defendant is entitled to a discount of one-third from the starting point of 7 years and 6 months’ imprisonment on account of his plea and remorse.  Once that discount is applied, the starting point is reduced to 5 years’ imprisonment. 

15.  The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just and balanced in all the circumstances, not only the offence but also the defendant.  In this case, the sentence is not unfair, imbalanced or unjust. 

16.  Accordingly, the defendant is sentenced to 5 years’ imprisonment for this offence.