HKSAR v. LIU XIAORONG

HCCC 282/2024

[2025] HKCFI 2651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 282 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Defendant is charged with one count of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The subject matter of  the dangerous drugs involves cocktail of drugs concerning 54.91 grammes of cannabis, in herbal form, 10.42 grammes of a solid containing 6.84 grammes of cocaine, 0.62 gramme of a solid containing 0.52 grammes of ketamine and 45.70 grammes of a crystalline solid containing 45.09 grammes of methamphetamine hydrochloride.

3.  She pleaded guilty in the magistrate court on 2 September 2024 and also admitted the summary of facts.  The case was thus committed to the Court of First Instance for sentence.

4.  This morning, she appears before me, having confirmed her plea and the admission of facts.

FACTS

5.  I shall adopt the summary of facts which had been admitted by the Defendant as follows:-

6.  During an anti-narcotics operation by the police, in the afternoon on 21 February 2023, the police gained entry into Flat B, 41^st Floor, Tower 1, No. 8 Waterloo Road, Yaumatei (“the Flat”), in which the Defendant and 3 other persons were found.  Upon preliminary investigation, the Defendant claimed that she was the owner of the Flat and the 3 other persons were her friends.

7.  Upon conducting a search at the Flat with a search warrant, inter alias, at various parts of the Flat, the subject matter of the dangerous drugs of the case were seized by the police together with packing and trafficking paraphernalia such as plastic spoon, metal grinder, cigarette papers and the cigarette rolling machine, electronic scale, empty transparent re-sealable plastic bags and one paper titled “Goods List” and 2 bunches of cash, respectively in the sum of HK$5,790 and RMB$3,300.

8.  Defendant was arrested for the offence of “Trafficking in dangerous drugs”.  Under caution, she said, “I have outstanding debt and I don’t have money to treat my disease, so I traffic in drugs”.

9.  The Defendant attended a Video-Recorded Interview (VRI)  on 22 February 2023 and admitted that she bought the drugs from a male in Yaumatei for HK$10,000 in order to earn quick money to repay her gambling debts.  The exhibits found were drugs and drug-packing paraphernalia.  The Goods List was for recording the “ICE”, “Coke”. cannabis and “Ma Gu” and the money found in the safe was partly from selling drugs and partly from her salary.  One of the customers did not have Hong Kong dollars and paid her Renminbi.

10.  The estimated market price of the herbal cannabis involved was HK$10,707.45, the estimated market price of cocaine was in the range of HK$8,221 (cocaine powder) to HK$10,712 (crack cocaine), the estimated market price for the ketamine is HK$282 and the estimated market price of “ICE” is HK$22,210.

BACKGROUND AND MITIGATIONS

11.  Defendant is 58 years old.  She was born in the mainland and received education up to Form One level in China.  She is a divorcee and has two daughters (aged 38 and 31 years old)  and a granddaughter aged 7 years old.  She lives alone in Hong Kong and her other family members are in China.  She has a clear record in Hong Kong. The Defendant joined the work force including working as a waitress.  Her last employment before arrest was a nightclub supervisor and she earned around HK$18,000 per month.

12.  Ms. So, counsel of the D, informed me that due to the poor relationship with her ex-husband and eventually the divorce, the D was emotional and she foolishly resorted to gambling with her friends in Macau which caused her to incur debts.  Further, her health was deteriorating and she needed money to treat her disease.  During the COVID pandemic, her salary was affected as the operation of the night club was limited.  Feeling troubled and overwhelmed with the situations, she foolishly agreed to earn quick money when her friends suggested.  She also consumed the drugs occasionally when she felt tired and uncomfortable.  

13.  She pleaded guilty to the offence at the earliest opportunity at the committal proceeding and she fully admitted her role at the scene and in the VRI after the arrest. 

CONSIDERATION OF SENTENCE

14.  In sentencing the defendant, I shall follow the six-steps approach as mentioned in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

THE FIRST STEP – GRAVITY OF THE OFFENCE

15.  The first step is to assess the gravity of the offence with reference to the type and quantity of the drug involved. 

16.  The present case involves various types of dangerous drugs as stated in the charge.

17.  In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in a cocktail of drugs.  According to the case of HKSAR v Chan Yuk Leong, CACC 318/2013 (unrep., 8 April 2014), there are three means of cross-checking the appropriateness of the overall starting point in the case of trafficking involving different types of dangerous drugs, namely the absurdity test, conversion test, and the ratio test.  I have directed counsel for the prosecution and defence before the hearing today to do the calculations and what came out in the final results are indeed identical.

18.  According the calculation made by the prosecution to which the defence does not take issue, the different starting points under the absurdity test, the conversion test and the ratio test are, respectively, 9 years and 10 months, 9 years and 6.2 months and 9 years and 6 months  respectively. 

19.  It is obviously unfair to sentence the Defendant on the individual approach which comes to a starting point of 14 years and 5.6 months’ imprisonment in total.  To achieve a more reasonable and realistic sentence, I will adopt the combined approach which involves an upward adjustment from the starting point of the base drug.  ‘ICE’ was the more or most serious drug in terms of potency among all the drugs involved, and it represented about 86% of the total drugs.  I will use ‘ICE’ as the base drug to calculate the starting point.

20.  Taking the above into account, I consider a starting point of 9 years and 6 months of imprisonment appropriate for trafficking in the dangerous drugs involved in the present case.

THE SECOND AND THIRD STEPS – ROLE AND CULPABILITY & THE RELEVANT BAND DEFENDANT COMES

21.  The second step is to assess the role and culpability of the defendant based upon the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it may, in appropriate circumstances, be necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the defendant. 

22.  The assessment made in the second step is relevant in determining where the Defendant falls within or outside the band.

23.  The Court of Appeal reaffirmed that the bands are for the least culpable of drug traffickers.  As was held in the Herry Jane Yusuph at §59, and I quote,

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

24.  In my judgment, however, the Defendant’s role in the present case was not limited to that of a courier or storekeeper.  I consider her to fall under the category of an ‘actual or direct trafficker’, which is described in Herry Jane Yusuph at §61 as someone who is involved in the actual selling of dangerous drugs to the public.  The Defendant should be considered as such based on her own admissions in the VRI after her arrest, the staggering quantities of different dangerous drugs found in the Flat she rented, and the paraphernalia associated with drug trafficking that was found, including electronic scale, empty transparent re-sealable plastic bags, cigarette rolling machine and grinding machine.  As such, an enhancement of the sentence is required due to her heightened culpability based on her role.

25.  Before determining an appropriate enhancement in the present case, I have referred myself to cases involving sentence enhancements based on the Defendant’s more culpable role, while being mindful that each case depends on its own facts.

26.  In HKSAR v Islam Azharul [2020] 1 HKLRD 644, Zervos JA considered an enhancement of six months’ imprisonment appropriate for a defendant who was involved in the packaging and dissemination of dangerous drugs by renting a room to store them.  He was also in possession of over 90 bags and packets of drugs at the time of his arrest and was found with a knife bearing traces of the drugs, as well as an electronic scale.  In HKSAR v Leung Chun-him[2023] HKCFI 2648, an enhancement of six months’ imprisonment was considered appropriate for a defendant who admitted to delivering dangerous drugs for others because he could not find any job during the pandemic.  He also admitted to being responsible for counting and packing the drugs in a warehouse under the instructions of a dangerous drug trafficking syndicate. 

27.  Considering the Defendant’s involvement in the present case, I consider a similar 6-month enhancement is warranted to reflect her heightened culpability.  The sentence would therefore be increased to 10 years of imprisonment.

THE FOURTH STEP – AGGRAVATING FACTORS

28.  The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance the starting point.

29.  The multiplicity of drugs in the present case, involving ‘ICE’, cannabis, ketamine and cocaine, is an aggravating feature.  This multiplicity enables the trafficker to cater to a far wider market than if trafficking only one kind of drug, thereby heightening the potential harm to society.

30.  In HKSAR v Wan Lau Mei, CACC 389/2013 (unrep., 27 March 2014), the defendant there was convicted of trafficking various quantities of different types of drugs, involving ketamine, ‘ICE’, heroin and cocaine.  The Court of Appeal considered a 6-month enhancement appropriate for the factor of multiplicity.  Similarly, in Islam Azharul, where the defendant trafficked in cocaine, herbal cannabis, cannabis resin and ‘Ecstasy’, the Court of Appeal considered that the multiplicity factor would warrant an enhancement of 6 months’ imprisonment.

31.  Taking the above into account, I would have thought that a similar 6-month increase would be appropriate given the circumstances.  However, after taking into account the already lengthy sentence that will be imposed, in the end I have decided to enhance the sentence by only 3 months.  Therefore, the sentence will be extended to 10 years and 3 months’ imprisonment.

THE FIFTH STEP – MITIGATING FACTORS

32.  The fifth step is to consider all mitigating factors.  As submitted by Ms. So, the Defendant pleaded guilty to the charge at the earliest opportunity during the committal proceedings and made admissions at the scene after her arrest.  The Defendant will be given a one-third discount for her timely and early plea.

33.  Apart from that, Ms. So also submitted that the Defendant is a person of hitherto good character with no prior criminal conviction.  However, as the Court of Appeal made clear in Herry Jane Yusuph at §73, in cases of trafficking in dangerous drugs, personal and family circumstances will count for little unless they are exceptional.  There is nothing in the paper to demonstrate that there is anything exceptional warranting any further mitigation.

34.  Therefore, I will not reduce the sentence further apart from the one-third discount given for the Defendant’s timely and early plea.  After applying such a discount, the Defendant’s sentence is reduced from 10 years and 3 months to 6 years and 10 months of imprisonment.

THE SIXTH STEP – APPRAISAL OF THE OVERALL SENTENCE

35.  The sixth and final step is to stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. 

36.  In my judgment, the final sentence may be harsh for the Defendant, as a fresh offender.  However, in light of the above and the fact that the offence she committed is serious, and also the role she has played in the offence, I have no doubt that the sentence is fair, just and balanced in the circumstances.