HKSAR v. KWOK SIN YING

HCCC 360/2023

[2024] HKCFI 1684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 360 OF 2023

________________________

________________________

__________________________________

Transcript of the Audio Recording
of the Sentence in the above Case

__________________________________

COURT: The defendant pleaded guilty to one count of trafficking in a dangerous drug on 9 November 2023 and was committed to the Court of First Instance for sentence. Today, the defendant confirms her plea and admission of the Summary of Facts. On 17 October 2022, the defendant was arrested on Wan Tau Kok Lane, Tai Po, New Territories, unlawfully trafficking in a dangerous drug, namely 47 grammes of a solid containing 43.6 grammes of cocaine.

On the material day at about 9 pm, police officers were on anti-narcotic patrol in Tai Po area when they spotted the defendant pressed her hand over her right front shorts’ pocket when she was near them. Moments later, she swiftly walked away, attracting attention to herself. Finding her suspicious, she was intercepted by the police. She did not co-operate initially when intercepted but eventually was led to one side for a body search.

A search of her right front shorts’ pocket revealed a plastic bag containing 23.5 grammes of a solid containing 22.1 grammes of cocaine and another plastic bag wrapped in a tissue containing 23.5 grammes of a solid containing 21.5 grammes of cocaine. Both bags weighed the same.

The defendant now admits that at the time of her arrest, the cocaine had a street value of $40,561, or if it had been converted into crack cocaine, $79,054. She also admits possessing this amount of cocaine for the purposes of unlawful trafficking.

Mitigation

The defendant is now 24 years old, educated to Form 1 level in Hong Kong and has, since leaving school, worked in various professions including a trainee hairstylist, a waitress, and an apprentice chef. At the time of her arrest, she was working as a waitress with a monthly salary of $15,000 a month. She is single and living with her mother and sibling. Her parents divorced when she was young.

Mr Hui has said all he can say on behalf of the defendant in mitigation. She had a clear record. That in itself carries little weight when the offence is one of trafficking in dangerous drugs.

I have been told that undesirable friends introduced her to cocaine when she was 19 years old. She was a habitual abuser as a result. On the day of her arrest, her drug supplier offered her a reward for delivering the cocaine of this charge to Tai Po. Her reward would be some of that very same cocaine but she was stopped by the police before she delivered the drugs.

I have seen a letter written by the defendant who expresses remorse and regrets disappointing her mother. She also regrets being tempted into taking drugs and engaging in drug trafficking activity.

Trafficking Guidelines

I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

In the approach to sentencing, a number of steps have been identified which the court should take, such as assessing the gravity of the offence and applicable guidelines, 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 the offence and the defendant.

The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized. The sentencing guidelines for cocaine is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming which are directed at trafficking heroin, are equally to be applied in cases of cocaine trafficking. The starting point for trafficking between 10 to 50 grammes will be between 5 to 8 years’ imprisonment. Mathematically speaking, the total weight of 43.6 grammes of cocaine will attract a starting point of 7 years and 6 months’ imprisonment.

The second step of the six steps is to assess the defendant’s role and culpability. I accept on the facts she was acting as a courier who was arrested whilst delivering the drugs. There is no evidence to indicate otherwise and that was her role. Therefore, I will determine a starting point to be according to the quantity of dangerous drugs and the relevant tariffs, which I have said is 7 years and 6 months’ imprisonment.

Considering the third step of where within the guidelines the defendant should lie, I will take that starting point as appropriate.

The fourth and fifth steps require me to consider whether there are any aggravating factors or any mitigating factors. I find neither exist here for the purposes of sentencing. There is no evidence that a substantial part of the drugs would be for her own consumption or gifted to her. Therefore there will be no additional discount for that mitigation.

The defendant pleaded guilty at the earliest opportunity and is entitled to a one-third discount. After I apply that discount, the starting point of 7 years and 6 months’ imprisonment is reduced to 5 years’ imprisonment.

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 of the circumstances of not only this offence but also the defendant. I find this 5 years’ imprisonment is not so harsh a sentence that it is unfair, imbalanced, or unjust.

Accordingly, the defendant is sentenced to 5 years’ imprisonment.