HKSAR v. HIDAYATI

DCCC 543/2024

[2025] HKDC 520

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 543 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 counts of Trafficking in Dangerous Drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  On 23 August 2023 around 3:30 pm, an anti-narcotics operation was conducted by the police near Shop 73B (the Shop)  on the Ground Floor of Chung King Mansions in Nathan Road, Tsim Sha Tsui.

3.  CCTV footage showed that around 4:10 pm that day, a male (the Male)  walked towards the defendant who was sitting on a chair (the Chair)  outside the Shop. After a while, the defendant searched for something near the Chair, then went into the Shop with something in her hand. The Male followed her into the Shop. The defendant came out of the Shop again and returned to the Shop after searching for something near the Chair. The Male then left of the Shop. The defendant later came out of the Shop, her hand holding what appeared to be cash which she immediately handed over to a male who was sitting on another chair outside the Shop.

4.  Around 4:11 pm, the Male, carrying a black bag (the Bag), was stopped by the police near the lift lobby of Block B of Chung King Mansions. When he was being taken to the lift lobby for enquiry, the Male dropped the Bag to the floor which was later picked up by the police and found to contain a transparent resealable plastic bag containing 2.52 grammes of cannabis in herbal form (subject matter of the 1^st charge).

5.  The defendant was arrested and cautioned outside the Shop. The police later seized from her 2 mobile phones and cash of HK$2,522 and RMB¥100.

6.  During a search of the vicinity outside the Shop, the police found 2 opened cardboard boxes near the Chair. The following items were found inside these cardboard boxes:

(i)  a paper cup containing a piece of tissue paper and a transparent resealable plastic bag containing 0.34g of a solid containing 0.26g of cocaine;

(ii)  a paper cup containing 4 transparent resealable plastic bags containing a total of 2.21g of a powder containing 1.72g of cocaine;

(iii)  a paper cup containing a piece of tissue paper and 5 transparent resealable plastic bags containing 4.58g of a solid containing 3.65g of cocaine;

(iv)  a paper cup containing a transparent resealable plastic bag containing 5.04g of cannabis in herbal form;

(v)  a paper cup containing a piece of tissue paper and a transparent resealable plastic bag containing 0.73g of cannabis in herbal form;

(vi)  a paper cup containing a transparent resealable plastic bag containing 2.52g of cannabis in herbal form;

(vii)  a paper cup containing a transparent resealable plastic bag containing 0.53g of tablet fragments containing 0.09g of 3, 4-methylenedioxymethamphetamine (MDMA)  and 2 tablets and 1.22g of tablet fragments containing a total of 0.49g of MDMA ;

(viii)  an electronic scale; and

(ix)  2 paper cups containing a total of 3 bundles of transparent resealable plastic bags.

7.  The estimated street value of: i)  the herbal cannabis found in the Bag was HKS481.32; ii)  the cocaine, the herbal cannabis and the MDMA found in the cardboard boxes were HK$7,718.73, HK$1,583.39 and HK$378 respectively.

8.  In a video-recorded interview, the defendant under caution admitted that she had picked up from the floor near the Chair a plastic cup containing something which she passed to the Male inside the Shop. In the course of doing so, the Male told her to put “this weed” into the Bag, which she did. The Male then gave her cash of around HK$300. She further admitted that she was the person in the abovementioned CCTV footage, and that the Bag seized by the police was the Bag provided by the Male.

9.  At all material times, the defendant was a Form 8 holder.

Defendant’s Background

10.  The defendant is 43 years old. She was born in Indonesia and was educated up to junior high school level. She is married. Her husband and their 2 children aged 16 and 12 years respectively reside in Indonesia. She had worked as a domestic helper in Hong Kong between 2016 and 2022.

11.  She has no previous conviction.

Mitigation

12.  Regarding the defendant’s background, her counsel Mr McGowan further pointed out that when the defendant was 16, her mother passed away and the responsibility of looking after and supporting her 5 younger siblings fell upon her shoulders. After she got married, she became practically the sole breadwinner of her own family. She had worked as a domestic helper both in Singapore and in Hong Kong. After finishing her last contract here in 2022, the defendant was not able to find further employment. She stayed on and made an asylum claim shortly before her arrest. Her financial situation made her vulnerable.  She committed the offences to support an acquaintance, something she deeply regrets doing and for which she tenders her deep apologies.

13.  After her arrest, she cooperated fully with the police and admitted her role. She also indicated her guilty pleas to the court at the first available opportunity.

14.  In her mitigation letter, the defendant elaborated on her personal background, the circumstances leading to her commission of the offences, and expressed her regrets and remorse.

15.  As regards sentencing, Mr McGowan referred to the six-step approach to sentencing for trafficking in dangerous drugs laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and advanced his mitigation according to those steps.

16.  HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 was referred to for trafficking in herbal cannabis sentencing guidelines, which indicate that trafficking in up to 2 kg of the drug would attract a sentence of up to 16 months. Mr McGowan suggested that for the small quantity of herbal cannabis involved in the 1^st charge, 3 months’ imprisonment would suffice.

17.  As for cocaine, the guidelines are defined in AG v Pedro Nel Rojas [1994] 2 HKLRD 69 and R v Lau Tak Ming [1990] 2 HKLR 370. Trafficking in up to 10 grammes of the drugs would attract a sentence of 2 to 5 years.

18.  For MDMA, for 0.58 gramme, the sentence would be within discretion of the sentencer.

19.  With regard to the defendant’s role and culpability, Mr McGowan submitted that her role was a classic “retail shopkeeper” dealing in small quantities from a limited stock and she was at the bottom of the chain.

20.  In deciding where in the relevant sentencing band the defendant came in respect of the 2^nd charge, Mr McGowan worked out “mathematically” a sentence of 33.8 months for cocaine, suggested 3 months for herbal cannabis, and that, in the exercise of the court’s discretion, a slight upward adjustment be made on account of the small quantity of MDMA, rendering a total sentence of 38 months for trafficking in the mixture of drugs for this charge. In his oral submissions, Mr McGowan admitted that his calculation was wrong, and he did not dispute that the correct figure should be 44 months for cocaine.

21.  Dealing with aggravating factors, counsel accepted that trafficking in 3 different types of drugs and the defendant being a Form 8 holder are both aggravating factors. Counsel suggested that no more than 6 months be enhanced for both factors, arguing that the present offences cannot really be described as “serious”, so that this court can depart from what the Court of Appeal in HKSAR v Ali Saif [2018] 6 HKC 19 indicated about enhancement for Form 8 offenders when it said, “However, we  should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court.”

22.  As for mitigating factors, Mr McGowan pointed out that the defendant’s timely plea and cooperation during the arrest and investigation are most significant. He also asked the court to consider the defendant’s clear record and her personal circumstances. 

23.  For the final step of assessing totality, counsel submitted that the sentence for the 1^st charge should run concurrently with that for the 2^nd charge, as can the Cocktail/Form 8 enhancements.

Sentencing considerations

24.  As Mr McGowan rightly pointed out, according to the revised guidelines for trafficking in cannabis resin and herbal cannabis laid down by the Court of Appeal in Nguyen Thang Loi, the appropriate sentencing band for the amount of herbal cannabis in respect of both charges is “Under 2,000g – up to 16 months”.

25.  Sentencing guidelines for trafficking in heroin as set out in Lau Tak Ming are applicable to trafficking in cocaine. According to those guidelines, for 5.63 grammes, the appropriate band is “up to 10 grammes of narcotics: 2 to 5 years’ imprisonment”.

26.  As for MDMA, the applicable sentencing band is that of “Up to 1g – within the sentencer’s discretion”.[1]

27.  In view of the small quantity of herbal cannabis involved in the 1^st charge, a sentence calculated arithmetically by applying the relevant quantity to the appropriate band would result in a sentence which is unrealistically low and which cannot reflect the gravity of the offence.

28.  The CCTV footage showed the defendant selling what later turned out to be a packet of herbal cannabis to the Man. Her role was more serious than that of a courier or storekeeper, upon which the sentencing guidelines were based. It was held in Herry Jane Yusuph that “the defendant who could be shown to be dealing in dangerous drugs to others, in the sense of actual or direct trafficking – such a defendant was not a courier or storekeeper, and was in a more serious position”.

29.  Given the quantity of the drug and the defendant’s role, I would adopt 3 months’ imprisonment as the starting point for the 1^st charge.

30.  As for the 2^nd charge involving a slightly larger quantity of herbal cannabis, ie 8.29g, I would adopt the same starting point of 3 months.

31.  For the cocaine in the 2^nd charge, calculated arithmetically, 5.63g of cocaine would result in a sentence of 3 years 8 months. Given the defendant’s role, which is more serious than being a courier or storekeeper even though she was clearly acting as just a pawn, I would increase it to 3 years 9 months’ imprisonment.

32.  In view of the minute quantity of 0.58g of MDMA in the 2^nd charge, I would exercise my discretion not to impose any additional penalty for trafficking in this amount of MDMA.

33.  The drugs involved in the 2^nd charge are disparate in quantity and potency, for which an “individual approach” in sentencing may be more appropriate. This approach involves applying the guidelines relevant to each drug and adding up the resultant sentences. Such an adding exercise would result in a total of 4 years. I would reduce this total to 3 years 11 months to ensure a just and balanced notional starting point for the 2^nd charge.

34.  As admitted by defence counsel, trafficking in a cocktail of drugs and being a Form 8 holder are both aggravating factors. Insofar as enhancement for the Form 8 holder factor is concerned, I see no reason to depart from what the Court of Appeal said in Ali Saif regarding enhancement of no less than 6 months for this kind of offence “in any case in the District or High Court” (emphasis supplied). I would enhance the sentence by 6 months for this factor, and 1 month for trafficking in three different kinds of drugs. The notional starting point for the 2^nd charge is thereby raised to 4 years 6 months.

35.  The defendant’s early plea of guilty is the only effective mitigation, for which she will be given a one-third discount in sentence. This discount covers her clear record and cooperation with the police.

36.  After this discount, the defendant will receive a sentence of 2 months’ imprisonment for the 1^st charge and 3 years’ imprisonment for the 2^nd charge, both sentences are to run concurrently with each other.