HKSAR v LO PUI SHAN

HCCC 5/2020

[2025] HKCFI 3408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 5 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the 1st count of trafficking in a dangerous drug and the 2nd count of failing to surrender to custody, and admitted the Summary of Facts put forward by the prosecution.

2.  The particulars of offence of the 1st count state that on 31 August 2018, at Room 2, 6th Floor, Sun Hotel, No. 211, Portland Street, Mong Kok, Kowloon, in Hong Kong, together with Poon Yat-shing, the defendant unlawfully trafficked in a dangerous drug, namely 51.15 grammes of a crystalline solid containing 46.70 grammes of methamphetamine hydrochloride (commonly known as ‘Ice’). 

3.  The particulars of offence of the 2nd count state that on 31 August 2022, in Hong Kong, the defendant being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by court. 

4.  The Summary of Facts regarding the 1st count admitted by the defendant provides, inter alia, as follows. 

5.  On 31 August 2018, at around 6.13 pm, police officers gained entry to Room 2, 6th Floor, Sun Hotel, No. 211 Portland Street, Mong Kok, Kowloon, Hong Kong (the “Room”) for investigation and search.  The defendant was the only person inside the Room.  She looked nervous and refused to get out of the bed which she was lying on when the police officers entered. 

6.  A search was conducted when the defendant finally agreed to leave the bed, whereupon nine resealable plastic bags containing a total of 51.15 grammes of a crystalline solid containing 46.70 grammes of methamphetamine hydrochloride (collectively “E1”) was seized from underneath the pillow on the bed.  One piece of paper bearing Chinese characters “Fei Fei”, digits “3.67” and “8.32”, one box containing numerous empty resealable plastic bags and one electronic scale were seized from a table inside the Room. 

7.  The defendant was then arrested and cautioned, under which she claimed the dangerous drug belonged to her boyfriend. 

8.  At the time of arrest, the defendant had one mobile phone with a SIM card and cash of HK$11,370 and 100 Renminbi with her. 

9.  In a subsequent video recorded interview under caution, the defendant admitted, inter alia, that:

(1) E1 was dangerous drug ‘Ice’;

(2) E1 was delivered by a man called “Kit Chi” about two days ago to the Room;

(3) her boyfriend’s name was Poon Yat-shing (“Poon”);

(4) the Room was rented by Poon;

(5) she assisted Poon in putting the ‘Ice’ into the pillow;

(6) Poon had the phone number of Kit Chi;

(7) when Poon received E1 from Kit Chi, it had been packed into the bags as they were seized;

(8) Poon weighed each bag and found the weight did not match the digits written on the papers that were seized together with E1;

(9) she saw Poon and Kit Chi weighing the bags of E1 together. She also wrote the digits on the papers as instructed by Poon to record the actual weights of the dangerous drug. Poon asked her to do so because her handwritings were better;

(10) she also helped Poon in weighing the ‘Ice’ and deducting the weight of the plastic bags to get the net weight of the ‘Ice’;

(11) she overheard the ‘Ice’ would be sold at about $9,000 per ounce;

(12) she had stayed in the Room for about 20 days, during which someone would purchase ‘Ice’ and someone would come to inhale ‘Ice’ together. She did not participate in inhaling ‘Ice’;

(13) the customers would call Poon and the defendant. 20 per cent of the customers would call the defendant’s mobile, which was the mobile phone seized from her to enquire about purchasing dangerous drug. The remaining 80 per cent of the customers would call Poon; and

(14) she also accompanied Poon in delivering ‘Ice’ as there would be less chance of Poon being stopped and searched with a female companion.

10.  The estimated street value of E1 was around HK$27,211. 

11.  Regarding the personal background of the defendant, the defendant is 42 years old and single.  She was 36 at the time of the offence the subject of Count 1.  The defendant has one previous conviction.  She was convicted of one charge of theft in August 2014, for which she was fined $2,000. 

12.  Before her arrest in 2018, the defendant was living with her parents and younger brother. 

13.  According to the defendant, she had several jobs between 2020 and her re‑arrest in 2024, such as being a waitress and a salesperson at a convenience store. 

14.  The defendant admits that she had abused ‘Ice’ for about a year when she was younger, at about 24 years of age.  She has not taken any dangerous drugs since, not when she helped her boyfriend Poon in dealing with the drugs back in 2018, nor afterwards up until the present. 

15.  The defendant attended a psychological assessment on 6 August 2020 and was found to have low average intelligence and her adaptive functioning was in the borderline range.  The psychologist’s comment on the defendant was, “Her borderline adaptive functioning, cognitive deficits, and psychiatric illness collectively can be disadvantageous to judicious decision making and judgment in everyday life, particularly when she is in an unwell mental condition”. 

16.  The defendant is said to be extremely remorseful for her misdeeds. 

17.  Regarding the 1st count, the sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  The first step is to identify the relevant sentencing band (or bracket) applicable to the quantity of drug concerned.  The second step is an assessment of the role and culpability of the defendant based on evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes.  It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant.  The fourth step is to consider aggravating factors which bear on the “notional sentence after trial”.  The fifth step is to have regard to any matter of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”.  The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just, and balanced sentence”. 

18.  Regarding the first step, for 46.70 grammes of methamphetamine hydrochloride, the applicable guideline tariff band is that of 7 to 11 years’ imprisonment: see HKSAR v Huang Ruifang [2025] HKCA 234, at paragraph 66. 

19.  Second, concerning the defendant’s role and culpability, I accept that the defendant was mainly a courier and storekeeper of the drug, as described in paragraph 59 of Herry Jane Yusuph, supra.  Although the defendant admits to have taken some of the customers’ phone calls enquiring about purchasing the drug, the actual trafficking was essentially carried out by Poon.  From the facts admitted by the defendant, she did not appear to even know the price at which the drug was sold (as opposed to overhearing from Poon that the ‘Ice’ would be sold at about $9,000 per ounce). 

20.  Third, for 46.70 grammes of methamphetamine hydrochloride, an arithmetical approach towards the guidelines would lead to a notional sentence after trial of 9 years and 5 months’ imprisonment.  I would adopt that as the notional sentence after trial in this case, based on my finding of the defendant’s role and culpability under step 2 above. 

21.  Fourth, I consider that there is no aggravating factor which would enhance the notional sentence after trial. 

22.  Fifth, I consider that the only mitigating factor which may reduce the defendant’s sentence is her guilty plea, albeit not entered at the first opportunity. 

23.  As explained in the defendant’s mitigation submissions and the Summary of Facts, back on 31 August 2018, the defendant was arrested and charged with the offence of trafficking in a dangerous drug.  When the defendant was brought before the Eastern Magistracy, the defendant indicated she would plead not guilty to the charge and the case was committed for trial.  At the second pre-trial review on 31 August 2022, the defendant did not turn up nor at the trial scheduled to commence thereafter. 

24.  The defendant was re‑arrested on 26 August 2024.  Since then, the defendant has indicated that she would plead guilty to the trafficking charge and also to the additional charge of failing to surrender to custody.  The defendant would also admit to the facts upon which the charges were based. 

25.  In HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 at paragraph 32, Mr Justice Lunn VP, said this: 

“Mr Beel [who was counsel acting for the appellant] was correct to concede that the usual range of discount afforded to a defendant who has absconded is about 20 per cent to 25 per cent...Within the usual range, the Judge has a discretion in determining the discount appropriate to the circumstances of any particular case.”

26.  In the present case, the defendant was at large for nearly 2 years after jumping bail. She was re‑arrested, as opposed to surrendering herself to the authorities.  In all the circumstances of this case, I consider that the appropriate discount to be afforded to the defendant for her guilty plea should be 23 per cent.  I can see no other reason for further reducing her sentence arising from her personal circumstances. 

27.  Accordingly, applying a 23 per cent discount to the notional sentence after trial, the defendant’s sentence on the 1st count is reduced to 7 years and 3 months’ imprisonment. 

28.  As regard the sentence for the 2nd count of failing to surrender to custody, I would adopt a starting point for sentence of 6 months’ imprisonment.  I would afford the defendant a full one-third discount for her timely guilty plea.  This results in a sentence of 4 months’ imprisonment.  Indeed, such a sentence was approved in the Lo Kam Fai case, ibid at paragraph 46. 

29.  In principle, the offence the subject of Count 2 was a wholly distinct and separate offence from that of trafficking in a dangerous drug.  Thus, sentence imposed for the former offence ought to be ordered to be served consecutively.  This would result in a total sentence of 7 years and 7 months’ imprisonment. 

30.  Having regard to the principle of totality of sentence, I am satisfied that a sentence of 7 years and 7 months’ imprisonment is a fair, just, and balanced sentence in the circumstances of the present case and the circumstances of the defendant. 

31.  Defendant, you are accordingly sentenced to 7 years and 3 months’ imprisonment on the 1st count, and 4 months’ imprisonment on the 2nd count, which is to run consecutively to the sentence on the 1st count,

thus resulting in a total sentence of 7 years and 7 months’ imprisonment.