HKSAR v. WONG NGA WING

HCCC 304/2024

[2025] HKCFI 4028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 304 OF 2024

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REASONS FOR SENTENCE

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INTRODUCTION

1.  Defendant is charged with one count 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 34 grammes of a crystalline solid containing 33.9 grammes of methamphetamine hydrochloride (also commonly known as “ICE”).

3.  She pleaded guilty in the magistrate court on 19 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.  According to the Summary of Facts which has been admitted by the Defendant, this is a classic stop and search case:-

6.  At about 9:35 pm on 7 September 2023, at No. 302A Portland Street, Mong Kok, Kowloon, police saw the Defendant standing next to a male who was riding an electric skateboard.  The Defendant was carrying a sling bag and holding cash in her hands.  Upon seeing the police, the male immediately fled away.  The Defendant, on the other hand, immediately walked towards Nathan Road.  The Defendant was eventually intercepted for a search and the police found:-

(1) One plastic bag containing 13.6 grammes of methamphetamine hydrochloride in the front pocket of her trousers;

(2) One plastic bag containing:-

(i) 4 plastic bags containing a total of 6.8 grammes of methamphetamine hydrochloride;

(ii) one tissue paper bag containing one plastic bag, containing 13.5 grammes of methamphetamine hydrochloride from the sling bag.

7.  The total quantity of methamphetamine hydrochloride seized from the Defendant is therefore 33.9 grammes.

8.  At the time of arrest, the Defendant had cash of HK$11,252 and two mobile phones on her person.

9.  The Defendant was then arrested and cautioned for the offence of “trafficking in a dangerous drug.”  Under caution, she claimed that she came to know a male at a bar.  She wanted to buy the dangerous drug in question for her own consumption.  The male then gave the same to her free.

10.  In the subsequent video-recorded interview (VRI), the Defendant explained further under caution that the dangerous drug found on her belonged to her and was “ICE”.  The ICE was given to her by an unknown male (“X”) in a bar several months ago for free and X also taught her how to consume “ICE”.  At the material time of the offence, she went to Mong Kok and received a call from X asking her to wait for someone at Portland Street who would give her some money.  Later, a male riding on an electric skating board approached her and asked her for a bag of a dangerous drug.  He also stated that he would pay for it later but he left without taking the bag of dangerous drug.  One of the mobile phones found on her was given to her by X and the cash found on her was her own savings.

11.  The estimated market price of the ICE seized was about HK$16,796.

BACKGROUND AND MITIGATIONS

12.  Defendant is 23 years old.  She was born in Hong Kong and received education up to Form 4 level. She is single and she lived with her father in a public housing unit before her arrest. 

13.  Ms. Lai, counsel for the Defendant, informed me that the Defendant has struggled with dyslexia since childhood, which affected her education.  Her father, now aged 59, who used to be a scaffolder, is now forced to retire due to an industrial accident and is now living on disability allowance of about $2,000 per month.  Her mother has suffered from depression and committed suicide when the Defendant was only 11.  Since then, the Defendant’s father was diagnosed with bipolar disorder, and has exhibited violent behavior towards the Defendant.  

14.  Since the Defendant was 16, she has worked as a chef, earning a daily salary of $700.  I was told that the Defendant is not a drug addict and had been contributing $3,000 monthly to support her father and she also paid the monthly rent of the public housing unit where she resided with her father.

15.  Ms. Lai stressed that the Defendant was influenced by the bad elements and committed the offence. Since 2021, during the pandemic, she lost her full time job and could only engage in part-time jobs.  In her desperation to support her family’s finances, she succumbed to temptation and committed the present offence.  She now recognizes the serious consequence of her act and she has a clear record.  The Defendant is deeply remorseful and asks for leniency from the court.

CONSIDERATION OF SENTENCE

16.  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

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

18.  The present case involves 33.9 grammes of ICE.  According to the recent revised guideline laid down by the Court of Appeal in Huang Ruifang [2025] HKCA 234, between 10 and 70 grammes, the sentencing tariff is between 7 and 11 years.  Therefore, a pure arithmetic calculation of the proper starting point is 8.59 years or 8 years 7.1 months for trafficking in the dangerous drug involved in the present case.

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

19.  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. 

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

21.  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.”

22.  Ms. Lai submitted that the Defendant is within the band of courier or storekeeper, being the lowest rank in the hierarchy.  I disagree.  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 quantities of the dangerous drugs found on her person, and the cash that was found.  As such, an enhancement of the sentence is required due to her heightened culpability based on her role.

23.  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.

24.  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. 

25.  Considering the Defendant’s involvement in the present case, I consider around a similar 6-month enhancement is warranted to reflect her heightened culpability.  The sentence would therefore be increased to 9 years 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.  I agree with Ms. Lai that there is no existing aggravating factor.

THE FIFTH STEP – MITIGATING FACTORS

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

29.  Ms. Lai also submitted for my consideration the mitigation letters written by the Defendant, Defendant’s father and paternal aunt in her support.  She also reminded me 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.

30.  Lastly, Ms. Lai prays in aid a letter from Father Wotherspoon acknowledging the effort that the Defendant has contributed in the programme.  The Court of Appeal had already approved that such efforts should be encouraged in the public interest but in any event, it would not warrant any further reduction more than three months.  After applying the one-third discount, the Defendant’s sentence is reduced from 9 years to 6 years of imprisonment and I shall give a further discount of 3 months on account of her participation in the programme.  The final sentence is therefore 5 years and 9 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, while 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 roles she played, I have no doubt that the sentence is fair, just and balanced in the circumstances.