HKSAR v. CHEUK HOI MAN

HCCC 264/2024

[2025] HKCFI 2650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 264 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Defendant faces a single charge of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The subject matter of the dangerous drug involves 145.5 grammes of a crystalline solid containing 144.3 grammes of methamphetamine hydrochloride (commonly known as “ICE”).

3.  She pleaded guilty in the magistrate court on 15 August 2024 and also admitted the summary of facts.  The case was 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.  It is a classic stop and search case.  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 on 11 January 2023, the police laid an ambush at Flat B, 11^th Floor, Hey Home, No.161 Yee Kuk Street, Sham Shui Po (“the Flat”).  At around 1:19am on 12 January 2023, when the Defendant was leaving the Flat, she was immediately intercepted by the police.  Defendant resisted but was quickly subdued and she was escorted back to the Flat for a search.  Upon search at the Flat, inter alias, one black bag were found on the tables between the television and sofa in the living room containing following items:

(a)  3 plastic bags containing a total of 145.5 grammes of a crystalline solid containing 144.3 grammes of “ICE”;

(b)  One electronic scale;

(c)  One calculator; and

(d)  A large number of empty transparent re-sealable plastic bags.

7.  Defendant was arrested.  Under caution, she said that those on the table were all “ICE” and asked for a chance.

8.  Defendant subsequently attended a Video Recorded-Interview on 12 January 2023.  Under caution, she said inter alia, the following:

(1)  She wanted to earn “quick” money due to financial need;

(2)  She bought the 3 bags of “ICE” from a male with HK$1,000 cash at Yen Chow Street Park about a week ago;

(3)  She bought the drugs for resale, but she had not resold any of them;

(4)  She was not a drug addict;

(5)  The calculator found was for calculating the weight of the drugs;

(6)  The electronic scale found was given by the said male and was for weighing the drugs when they were resold;

(7)  The empty transparent re-sealable plastic bags were given by the said male and were for repacking the drugs;

(8)  She rented the Flat from about October 2022 and she lived there alone. Only she had the keys to the Flat; and

(9)  No one else had attended the Flat since she rented the Flat.

9.  The estimated market price of the ICE involved was HK$91,665 (calculated at HK $630/gram).

10.  Examination of the Defendant’s urine samples revealed negative result for all sorts of dangerous drugs.

BACKGROUND AND MITIGATIONS

11.  Defendant is 35 years old.  She received education in Hong Kong up to Form 3 level.  She is single but she has a 10 years old son.  Defendant separated with the son’s father when the son was only one year old and she lived on CSSA. When the son started to attend school, she worked as a salesperson and a waitress earning HK$14,000 per month.  Defendant had been the sole provider of her son without financial help from the son’s father.  Defendant has one criminal record for Possession of Part I Poison back in 2005 for which she was put on Probation Order for 12 months and she is not a drug addict.  Ms. So, counsel for Defendant, told me that the Defendant committed the offence foolishly due to financial pressure and poor judgment.  She participated in the trade in order to earn some quick money but she was yet to earn any profit before she was arrested.

12.  Ms. So emphasized that Defendant pleaded guilty at the earliest opportunity at the committal proceeding and she fully admitted her role at the scene after the arrest for which she should receive the one-third discount.

CONSIDERATION OF SENTENCE

13.  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

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

15.  The Defendant pleaded guilty and was convicted of the trafficking charges.  The present case involves a total of 144.3 grammes of ‘ICE’.

16.  In determining the proper starting point, I refer myself to the most recent guideline laid down by the Court of Appeal in Huang Ruifang [2025] HKCA 234 where for quantities between 70-300 grammes, the tariff is between 11 and 15 years.  Upon pure calculation, the sentence should be 12.29 years.

17.  Taking the above into account, I consider a starting point of 12 years and 3.5 months) of imprisonment appropriate for trafficking in the dangerous drug involved in the present case.

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

18.  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, it would 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. 

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

20.  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.”

21.  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.  Defendant should be considered as such based on her own admissions at the VRI after her arrest, the quantities of dangerous drugs found in the Flat she rented at the time of arrest, and the paraphernalia associated with drug trafficking that was found in the Flat, including electronic scale and a large number of small re-sealable plastic bags.  As such, an enhancement of the sentence is required due to her heightened culpability based on her role.

22.  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.

23.  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. 

24.  Considering the Defendant’s involvement in the present case, I consider a similar 6-month enhancement might not be sufficient to reflect her heightened culpability as she was actually trying to resell the ICE for profits.

25.  However, after taking into account the already lengthy sentence that will be imposed and the fact that she had not resold any of the drugs before arrest, in the end I have decided to increase the sentence by only about 6 months to reflect the heightened culpability of the Defendant by virtue of her role.  The sentence would therefore be increased to 12 years and 9 months of imprisonment.

THE FOURTH STEP – AGGRAVATING FACTORS

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

27.  The only criminal record of Defendant is of a different offence and was spent so I would not enhance the sentence.

THE FIFTH STEP – MITIGATING FACTORS

28.  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 and in the VRI after her arrest.  The Defendant will be given a one-third discount for her timely and early plea.

29.  Apart from that, Ms. So also prayed in aid that the Defendant is not a drug addict, and that she is fully determined to turn a new leaf and also the mitigation letters and asks for a lenient sentence in order to take care of her son.  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.

30.  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 12 years and 9 months to 8 years and 6 months’ imprisonment.

THE SIXTH STEP – APPRAISAL OF THE OVERALL SENTENCE

31.  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. 

32.  In my judgment, the final sentence of 8 years and 6 months’ imprisonment on the trafficking charge is, of course, harsh for the Defendant.  However, in light of the above and the fact that the offence she committed is serious, and also the role she played, I have no doubt that the sentence is fair, just and balanced in the circumstances.

ORDER

33.  8 years and 6 months’ imprisonment.