A A
B B
DCCC 705/2024
C [2025] HKDC 824 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 705 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I CHU HOI LING (D1) I
YAU CHUN KIT (D2)
J J
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K Before: His Honour Judge Tam in Court K
Date: 14 May 2025
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Present: Ms Chung Wing Sze Natalie, Public Prosecutor, for HKSAR
M Mr Kan Wing Fai Terry, instructed by Adrian Yeung & M
Cheng, assigned by the Director of Legal Aid, for the 1st
N N
defendant
O Ms Po Hi Hau Rachel, instructed by Kwok, Ng & Chan, O
assigned by the Director of Legal Aid, for the 2nd defendant
P P
Offences: [1] Trafficking in a dangerous drug (販運危險藥物)
Q Q
[2] Trafficking in dangerous drugs (販運危險藥物)
R [3] Possession of apparatuses fit and intended for the smoking R
or inhalation of a dangerous drug (管有適合於及擬用作吸
S S
食或吸服危險藥物的器具)
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[4] Possession of a dangerous drug (管有危險藥物)
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C --------------------------------------- C
REASONS FOR SENTENCE
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F F
1. Before me, D1 and D2 jointly face 4 charges on a Charge
G Sheet as follows. G
H H
2. Charge 1 is Trafficking in a dangerous drug, contrary to
I section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. I
Particulars are that they, on 6 February 2024, at 19th Floor, Sand Martin
J J
House, Sha Kok Estate, Sha Tin, New Territories, in Hong Kong,
K unlawfully trafficked in a dangerous drug, namely 0.58 gramme of a solid K
containing 0.51 gramme of cocaine.
L L
M 3. Charge 2 is Trafficking in dangerous drugs, contrary to M
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
N N
Particulars are that they, on the same date, at Room 1907, Sand Martin
O House aforesaid, in Hong Kong, unlawfully trafficked in dangerous drugs, O
namely 20.60 grammes of a solid containing 18.12 grammes of cocaine
P P
and 1.47 grammes of a crystalline solid containing 1.46 grammes of
Q methamphetamine hydrochloride. Q
R R
4. Charge 3 is Possession of apparatuses fit and intended for the
S smoking or inhalation of a dangerous drug, contrary to section 36(1) and S
(2) of the Dangerous Drugs Ordinance, Cap 134. Particulars are that they,
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on the same date, at Room 1907 aforesaid, in Hong Kong, had in their
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A A
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possession apparatuses, namely two inhaling devices, fit and intended for
C the smoking or inhalation of a dangerous drug, namely methamphetamine. C
D D
5. Charge 4 is Possession of a dangerous drug, contrary to
E section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. E
Particulars are that they, on the same date, at Room 1907 aforesaid, in
F F
Hong Kong, had in their possession a dangerous drug, namely 97 millilitres
G of a liquid upon drying contain 0.58 gramme of a solid containing 0.38 G
gramme of methamphetamine.
H H
I 6. D1 pleaded guilty to all 4 charges. D2 pleaded guilty to I
Charges 3 and 4 but not guilty to Charges 1 and 2.
J J
K 7. Prosecution asked that Charges 1 and 2 as against D2 be left K
on court file not to be proceeded with without the leave of this court or the
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Court of Appeal. I so ordered.
M M
Facts admitted by D1 and D2
N N
O 8. On 6 February 2024, at around 1625 hours, D1 left the flat O
(“the Flat”) known as Room 1907, Sand Martin House, Sha Kok Estate,
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Shatin. Police officers nearby intercepted her.
Q Q
9. Upon search, one tissue paper containing 2 transparent
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resealable plastic bags containing 0.58 gramme of a solid containing 0.51
S gramme of cocaine (E1) was found in D1’s right hand. Two mobile phones S
were seized from D1.
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10. D1 was arrested for “Trafficking in a dangerous drug”. Under
C caution, D1 admitted she sold dangerous drug to earn money for the C
purpose of raising her children and she asked for a second chance.
D D
E 11. D2 was inside the Flat. Upon search of the kitchen of the Flat, E
the police found and sezied:
F F
G From on top of the kitchen wardrobe G
H H
(a) A white container containing 24 transparent resealable
I plastic bags containing a total of 3.17 grammes of a I
solid containing 2.62 grammes of cocaine (E2);
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K (b) One transparent resealable plastic bag containing 3 K
transparent resealable plastic bags containing a total of
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0.84 gramme of a solid containing 0.73 gramme of
M cocaine (E3); M
(c) 17 transparent resealable plastic bags containing a total
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of 4.81 grammes of a solid containing 4.22 grammes of
O cocaine (E4); O
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(d) One transparent resealable plastic bag containing 22
Q transparent resealable plastic bags containing a total of Q
6.25 grammes of a solid containing 5.50 grammes of
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cocaine (E5);
S S
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A A
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(e) One transparent resealable plastic bag containing 0.63
C gramme of a crystalline solid containing 0.63 gramme C
of methamphetamine hydrochloride (E6);
D D
E (f) One transparent resealable plastic bag containing 0.84 E
gramme of a crystalline solid containing 0.83 gramme
F F
of methamphetamine hydrochloride (E7);
G G
(g) One green glass bottle inserted with (i) one plastic
H H
straw/one segment of plastic tube and (ii) one glass tube,
I containing 27 millilitres of a liquid, which upon drying, I
was found to contain 0.21 gramme of a solid containing
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0.14 gramme of methamphetamine (E9);
K K
(h) One silver plastic bottle (with a metal tube) inserted
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with (i) one glass tube with one end shaped as a bulb
M and (ii) one plastic straw, containing 70 millilitres of a M
liquid, which upon drying, was found to contain 0.37
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gramme of a solid containing 0.24 gramme of
O methamphetamine (E10); O
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(i) One lighter and one plier and one clamp; and
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(j) Cash of $400.
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From inside the left cabinet of the kitchen wardrobe
C C
(k) One transparent resealable plastic bag containing 5.53
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gramnmes of a solid containing 5.05 grammes of
E cocaine (E8); and E
F F
(l) 3 measuring cups.
G G
From inside the right cabinet of the kitchen wardrobe
H H
I (m) One black electronic scale; and I
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(n) 3 plastic bags containing multiple empty transparent
K resealable plastic bags. K
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12. D1 was further arrested for “Trafficking in dangerous drugs”.
M Under caution, D1 admitted she sold the dangerous drugs for the purpose M
of improving the living standard of her children.
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O 13. Next, D1 was arrested for “Possession of apparatuses fit and O
intended for the inhalation of dangerous drug” regarding E9-10. Under
P P
caution, D1 admitted the drug-inhaling apparatuses were for her self-
Q consumption use. Q
R R
14. Upon search of D2, one mobile phone was seized from him.
S At around 1738 hours, D2 was arrested for “Possession of apparatuses fit S
and intended for the inhalation of dangerous drug” regarding E9-10.
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15. In total, E1-8 are 69 plastic bags containing 21.18 grammes
C of a solid containing 18.63 grammes of cocaine (ie E1-5 & 8) and 2 plastic C
bags containing containing 1.47 grammes of a crystalline solid containing
D D
1.46 grammes of methamphetamine hydrochloride (ie E6-7).
E E
16. The estimated street value of the seized dangerous drugs is
F F
around $28,189.83.
G G
17. During D1’s cautioned VRI conducted in the small hours of 7
H H
February 2024, she stated:
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(a) She resided in the Flat with D2; she was going to
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deliver the seized cocaine E1 on 6 February 2024;
K K
(b) She knew what the seized dangerous drugs were and
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where they were placed inside the Flat; the two seized
M inhaling apparatuses (ie E9-10) were for her self- M
consumption of methamphetamine;
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O (c) The mobile phone with a ‘Hello Kitty’ phone case O
seized from her was used for Whatsapp communication
P P
with her drug trafficking boss; she roughly received
Q around 12 grammes of cocaine from her boss each time; Q
R R
(d) Her boss gave instructions on the time, place, and
S method of delivery of dangerous drugs to the S
customer(s); D1 usually took taxi; the customers would
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-8-
A A
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either pay cash to D1 or pay directly to her boss via FPS
C or Alipay; C
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(e) Each plastic bag of dangerous drug would be sold for
E around $200 to $300; she would receive around $80 to E
$100 as reward for each bag sold;
F F
G (f) On 6 February 2024, at about 0700 hours, in Tsz Wan G
Shan, an unknown male gave her about 30-40
H H
transparent resealable plastic bags of about 12 grammes
I of cocaine; and I
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(g) The cash of $400 seized was crime proceeds.
K K
18. During D2’s cautioned VRI conducted in the small hours on
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7 February 2024, he stated that he was residing in the Flat with D1 and her
M daughter. M
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19. D1’s DNA was detected on E9 and D2’s DNA was detected
O on E10. O
P P
20. D1 now admits that she had E1 to E8 in her possession for the
Q purpose of unlawful trafficking. Q
R R
21. D1 and D2 now admit that they had joint possession of the
S dangerous drug methamphetamine in E9-10, which were inhaling devices S
fit and intended for the smoking or inhalation of a dangerous drug, namely
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methamphetamine.
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Criminal records
C C
22. D1 has one previous conviction of possession of dangerous
D D
drug in 2013.
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23. D2 has 6 previous convictions, 4 of which are similar.
F F
G Antecedents G
H H
24. D1 is aged 34 (33 at the time of the offences), educated to F5
I level, has previously been a salesperson until 2021. D1 lived in public I
housing in Shatin with her daughter (15) whose father has broken up with
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D1. D1 also has a son (3) with D2 and this child is being taken care of by
K a foster family. K
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25. D2 is aged 37 (36 at the time of the offences), educated to F5
M level, unemployed since 2020. D2 was living with D1 and D1’s daughter M
in public housing in Shatin. D1 and D2 have a son (3) within their
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relationship.
O O
Mitigation
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Q D1 Q
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26. Mr Terry Kan of counsel assigned by the Director of Legal
S Aid mitigated on behalf of D1. The following is a summary of the S
mitigation submissions.
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27. D1 pleaded guilty. She is remorseful. She promises not to re-
C offend. She asks the court to give her a chance. Apart from a daughter, C
she also has a son (14) with the same ex-boyfriend. She wishes to leave
D D
prison sooner so she could take care of the afore-mentioned daughter and
E son. E
F F
28. During remand in custody, she took 4 Christian courses and
G passed the exams (certificates submitted). She also took two English G
courses organized by CUSCS (records submitted). D1 wishes to equip
H H
herself more so that she could contribute to society when released.
I I
29. For Charges 1 and 2, Mr Kan admitted in court on behalf of
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D1 that her role was an actual/direct trafficker.
K K
30. Mr Kan reminded the court of the six-step approach of
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sentencing in drug trafficking cases set out in HKSAR v Herry Jane Yusuph
M [2021] 1 HKLRD 290 and further elaborated in HKSAR v Lee Ming Ho M
[2024] 1 HKLRD 1186. One of the salient features of this sentencing
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approach is the moving away from a rigid arithmetical approach, with
O starting points and sentences based purely on narcotic content, to a more O
discretionary approach involving an assessment of the defendant’s role and
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culpability. However, the quantity of the dangerous drug involved remains
Q the primary determinant in sentencing. Q
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31. For Charge 1, the drug was 0.51 gramme of cocaine.
S S
32. Cocaine and heroin are equated for sentencing purposes and
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the tariffs fixed for heroin in R v Lau Tak Ming [1990] 2 HKLR 370 apply
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to cocaine. This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC
C 342. For the quantity of 0.51 gramme of cocaine, the relevant guideline C
band is up to 10 grammes for which the sentence is between 2 and 5 years’
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imprisonment.
E E
33. For Charge 1, on a strictly arithmetical approach, 0.51
F F
gramme of cocaine would attract a starting point of 2 years and 1 month’s
G imprisonment. G
H H
34. For Charge 2, the drugs were 18.12 grammes of cocaine and
I 1.46 grammes of ICE. For the quantity of 18.12 grammes of cocaine, the I
relevant guideline band is 10 to 50 grammes for which the sentence is
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between 5 and 8 years’ imprisonment.
K K
35. The starting point for up to 10 grammes of ICE falls within
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the band of 3 to 7 years’ imprisonment (HKSAR v Tam Yi Chun [2014] 3
M HKLRD 691). M
N N
36. For Charge 2, on a strict arithmetical approach, 18.12
O grammes of cocaine would attract a starting point of 5 years and 7 months’ O
imprisonment; and 1.46 grammes of ICE would attract a starting point of
P P
3 years and 7 months’ imprisonment.
Q Q
37. Mr Kan invited the court to add the 0.51 gramme of cocaine
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from Charge 1 to the 18.12 grammes of cocaine from Charge 2. Reason is
S that Charge 1 was part and parcel of Charge 2 in the present case. Total S
quantity of cocaine added up to 18.63 grammes.
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38. In the case of HKSAR v Cheung Wai Man [2019] 1 HKLRD
C 817 at para 39, there were lengthy discussions on both the individual C
approach and combined approach. It was submitted that in the
D D
circumstances of this case, the combined approach is to be preferred.
E E
39. In HKSAR v Chan Yuk Leong, CACC 318/2013, three tests
F F
were laid down to calculate the combined starting points and to cross-check
G the sentence by the three tests, namely, absurdity test, conversion test and G
ratio test, so that the ultimate sentence will be within range.
H H
I 40. Using the three tests, Mr Kan obtained the following results:- I
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(a) Absurdity test – 5 years 9 months (ie 69 months) for
K 20.09 grammes of cocaine; 7 years 8 months (ie 92 K
months) for 20.09 grammes of ICE;
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M (b) Conversion test – 6 years 2 months (ie 74 months) for M
7.96 grammes (converted + actual) of ICE; and
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O (c) Ratio test – 92 x 7.27% (ICE) plus 69 x 92.73% O
(Cocaine) = 70.7 months.
P P
Q 41. Mr Kan submits that it would not be wrong to take a starting Q
point of 70 months for Charge 2, and to order the sentence on Charge 1 to
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run wholly concurrently with that on Charge 2.
S S
42. The next step is to assess the defendant’s role and culpability.
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The guidelines are based on the courier or storekeeper ie the person who
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was delivering, distributing, or conveying the drugs in question for a dealer;
C or storing the consignment of drugs on behalf of himself or someone else C
(see para 59 of Herry Jane Yusuph).
D D
E 43. It was admitted by Mr Kan that D1 in this case was an E
actual/direct trafficker.
F F
G 44. Mr Kan suggested adding 2 months to the starting point to G
reflect the above factor and the fact that two different kinds of drugs were
H H
trafficked in.
I I
45. It was submitted that there were no other aggravating factors
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in this case.
K K
46. Mr Kan reminded the court that as far as mitigating factors are
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concerned, personal circumstances generally count for little for this offence.
M M
47. Mr Kan also reminded the court to take into account totality
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before determining the sentence for Charge 2.
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48. For Charge 3, it was submitted that a sentence of 3 months’
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imprisonment after a plea of guilty (4 ½ months as starting point) would
Q be usual (see R v Law Sing, HCMA 890/1996). Q
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49. For Charge 4, the dangerous drug was 0.38 gramme of ICE.
S S
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50. It was submitted that a starting point of 6 months’
C imprisonment would reflect the criminality of Charge 4 (see HKSAR v C
Muhammad Ali Pahat, HCMA 342/2022).
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E 51. D1 pleaded guilty to the charges entitling her to 1/3 E
sentencing discount. There are also some special circumstances on paper
F F
which, subject to the court’s acceptance, might entitle D1 to a sentencing
G discount of 40-45% (inclusive of the 1/3 aforesaid). G
H H
52. Upon consideration of the totality principle, Mr Kan asks that
I the sentences on Charges 1 and 2 be made to run concurrently. He further I
asks for the same treatment as regards Charges 3 and 4. He asks that a
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small proportion not exceeding half of the sentences on Charges 3 and 4 be
K made to run consecutively to the sentences on Charges 1 and 2. K
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D2
M M
53. Ms Rachel Po of counsel assigned by the Director of Legal
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Aid mitigated on behalf of D2. The following is a summary of the
O mitigation submissions. O
P P
54. D2 previously lived with D1 and her daughter. D1 and D2
Q have a son who is under the care of Social Welfare Department. D2 now Q
lives with his parents (both over 60), who provide emotional and financial
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support to D2.
S S
55. Formerly a construction worker earning $18,000 monthly, D2
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faced reduced work and layoffs following Covid-19 outbreak in 2020. In
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2023, he experienced chronic bladder pain and frequent urination,
C exacerbating stress leading to a relapse into drugs. C
D D
56. On the night before the offences, D2 was preoccupied with
E video games until the early hours of 6 February 2024, after which he fell E
asleep. He recalled D1 briefly leaving the flat and then returning. D2
F F
awoke when police arrived and only then became aware of the drugs during
G the kitchen search. G
H H
57. D2 expresses remorse for his actions. He aspires to be a
I responsible father to his son and a supportive figure to D1’s teenage I
daughter. D2’s parents are supportive to him.
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K 58. D2 has sought medical treatment for his bladder condition K
while on remand.
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M 59. Since his release on bail on 8 April 2025, D2 said he has M
remained drug-free, demonstrating a genuine commitment to rehabilitation.
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O 60. For Charge 3, R v Law Sing [1996] 4 HKC 477 established a O
3-month imprisonment term for possession of drug-related apparatuses
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following a guilty plea.
Q Q
61. For Charge 4, HKSAR v Mok Cho Tik [2001] 1 HKC 261
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suggests a starting point of 12-18 months’ imprisonment for possession of
S dangerous drugs by a bona fide user. However, the court emphasized S
flexibility, with the quantity of drugs being the primary factor. In the
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present case, the two bottles containing 0.38 gramme of methamphetamine,
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A A
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used solely for personal consumption, pose no risk of dissemination.
C Further, D2 has no previous conviction for drug trafficking offence. C
D D
62. It was submitted that a starting point of 6 months’
E imprisonment would reflect the criminality of Charge 4 (see HKSAR v E
Muhammad Ali Pahat, referred to by D1).
F F
G 63. D2 has 6 previous convictions 4 of which were related to drug G
possession committed prior to the present incident.
H H
I 64. D2 frankly admitted to relapse in 2021 following his son’s I
birth. A social welfare protection order was imposed due to D2’s drug
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abuse. From September 2022 to January 2024, D2 attended regular
K counselling at Hong Kong SKH Welfare Council Neo-Horizon, K
undergoing 45 urine tests with only one positive result in early 2024 (see
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official letter dated 29 April 2025 submitted). While susceptible to relapse,
M it was submitted that D2 is not a persistent offender. It was submitted that M
a starting point of 6 months for Charge 4 would be appropriate.
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O 65. Given the offences arose from the same incident, and because O
of totality, the court was invited to impose concurrent sentences.
P P
Q 66. After considering Fu Man Kit and Superintentent of Tai Lam Q
Correctional Institution [2022] 1 HKLRD 219 and HKSAR v Cheng Tsz
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Ho & Anor [2024] HKCA 885 at the invitation of the court, it was
S submitted1, inter alia, that: S
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1
Prosecution made similar written submissions, on the invitation of the court.
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A A
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(a) Rule 69 of the Prison Rules (Cap 234A) (sentence
C remission) falls under CSD’s authority, not the court; C
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(b) Common law precludes sentencing judges from
E factoring in remission to avoid inflating sentences; and E
F F
(c) If, however, the rules governing sentence reduction
G result in unfair outcome for the prisoner, the court will G
not ignore it (para 11 of Cheng Tsz Ho), suggesting that
H H
the court will consider the good behavior during
I remand when determining sentence. I
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67. Ms Po informed the court of the following remand history of
K D2. D2 was remanded from 8 February 2024 to 8 April 2025, totaling 424 K
days. On 19 June 2024, while on remand, D2 was sentenced to 4 months’
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imprisonment (122 days) for “possession of dangerous drug” in a separate
M case at Kowloon City Magistracy (KC/380/18). Assuming his good M
behavior, his actual term for that case would be reduced by 1/3, resulting
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in 81 days served (122 – 41 days) (subject to confirmation by prosecution).
O Consequently, the remaining remand period was 343 days (424 – 81 days). O
P P
68. Ms Po suggested a starting point of 4 ½ months for Charge 3;
Q and a starting point of 6 months for Charge 4. Q
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69. The court is urged to impose a lenient sentence, allowing for
S D2’s immediate release to continue his rehabilitation. S
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Sentence
C C
70. At the outset, I declare that I will discard the apparent
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aggravating factor of joint enterprise in relation to Charges 3 and 4 for two
E reasons. First, they are simply joint possession for individual use offences. E
Secondly, D1 and D2 were cohabitees so it would not have been unnatural
F F
for them to jointly possess these items without adding to their individual
G criminality. G
H H
71. I will deal with D2 first because it is much simpler to deal
I with. For the offences that D2 has been convicted of, before sentencing I
him to an imprisonment sentence, I will have to obtain a DATC report
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(section 54A of the Dangerous Drugs Ordinance, Cap 134, refers) and for
K that reason, I will have to remand him in custody for a period not exceeding K
3 weeks.
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M 72. D2 has been remanded in custody for this case for a period of M
about 343 days.
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O 73. There are two aggravating factors in relation to D2. First, he O
committed the present offences whilst on, and jumping, bail for another
P P
case of possession of dangerous drug (KC/380/18), a case he committed in
Q 2017 but was not sentenced until 19 June 2024, probably because he was Q
not re-arrested until the date of arrest of the present case. Secondly, he is
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a repeat offender of possession of dangerous drug.
S S
74. If I were to sentence D2 to a term of imprisonment, for Charge
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3, I would likely have sentenced him to 4 months’ imprisonment; and for
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B B
Charge 4, I would likely have sentenced him to 5 months’ imprisonment
C (HKSAR v Muhammad Waqas [2019] 4 HKLRD 323, 338-339, at paras C
62-64, considered), in both cases, taking into account the aggravating
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factors and his pleas of guilty. I should add that, apart from the pleas of
E guilty, there are no other mitigating factors of weight which would have E
caused me to reduce his notional sentences further.
F F
G 75. However, these theoretical sentences are not commensurate G
with the time in custody that D2 has already spent.
H H
I 76. In the premises, I will not sentence D2 to any further terms of I
imprisonment, thus dispensing with the need to remand him further for
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obtaining a report. I will simply fine him for both charges. The fines that
K I will impose will have taken into account the aggravating factors and his K
pleas of guilty.
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M 77. Now, back to D1. Needless to say, trafficking in a dangerous M
drug is a serious offence anywhere in the world. It is made more serious
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where more than one type of serious drug is involved, as here.
O O
78. Herry Jane Yusuph (supra) sets out the six-step approach to
P P
sentencing an offender in such situations.
Q Q
79. For Charge 1 of trafficking in 0.51 gramme of cocaine, the
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arithmetical starting point according to the tariff is 25.84 months’
S imprisonment. The relevant sentencing band in the tariff for up to 10 S
grammes of the drug has not been disturbed by the recent case of HKSAR
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v Huang Ruifang [2025] HKCA 234.
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A A
B B
C 80. For Charge 2 of trafficking in 18.12 grammes of cocaine and C
1.46 grammes of methamphetamine hydrochloride ie ICE, I accept the
D D
submission that the amount of cocaine under Charge 1 should be added to
E that here to form a total amount of cocaine of 18.63 grammes for the E
purpose of calculation and ultimately sentence. For the drug ICE, the
F F
traditional tariff for the sentencing band for up to 10 grammes of the drug
G has also not been disturbed by the case of Huang Ruifang (supra). G
H H
81. I also accept the submission that the combined approach of
I sentencing is more appropriate than the individual approach; and for that I
purpose, I will need to consider, inter alia, the results of the three cross-
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checking tests, namely, absurdity test, conversion test, and ratio test, before
K finalizing the appropriate starting point for Charge 2. K
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82. The results of the three tests, according to my own
M calculations2, are as follows:- M
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(a) Absurdity test: 20.09 grammes of cocaine – 69 months;
O 20.09 grammes of ICE – 92 months; O
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(b) Conversion test: 23.9 grammes of cocaine – 72.5
Q months; 8.0 grammes of ICE – 74.8 months; and Q
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(c) Ratio test: 92.73% x 69 months (cocaine) + 7.27% x 92
S months (ICE) = 70.67 months. S
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2
The sentencing bands in the relevant traditional tariffs have not been disturbed by the case of Huang
Ruifang (supra).
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V V
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A A
B B
C 83. Based on the above figures, I regard 71 months’ imprisonment C
as a fair initial starting point for Charge 2 and I will adopt it. Because of
D D
the presence of more than one type of serious drug, I will enhance the
E starting point by 2 months (see HKSAR v Islam SM Majharul [2020] 3 E
HKLRD 146, 157, at para 27(3) & (4)).
F F
G 84. Next, I will consider the role and culpability of D1 in the act G
of trafficking. Under caution at the scene, D1 admitted she sold (sic) the
H H
dangerous drugs for purpose of improving her children’s living standard.
I Under cautioned VRI, D1 said she was a deliverer of dangerous drugs as I
per her boss’s order; she would sometimes receive cash from customers;
J J
she would receive reward of $80 to $100 for each bag of drugs sold; the
K cash of $400 seized from the kitchen was crime proceeds. K
L L
85. At the crime scene, a plier, a clamp, 3 measuring cups, an
M electronic scale and multiple empty transparent resealable plastic bags M
were found.
N N
O 86. Based on these undisputed facts, and despite the “exculpatory” O
statement (to which I gave no weight) under cautioned VRI that about 12
P P
grammes of cocaine in 30 to 40 transparent resealable plastic bags were
Q taken by her to the scene after collection of the same from an unknown Q
male in the morning of the day of arrest, I draw the only reasonable
R R
inference that D1 was at the scene operating a packaging and distribution
S centre for dangerous drugs (see Herry Jane Yusuph (supra) at 320-322, S
paras 61-64). Mr Kan for D1 was at pains to persuade me away from this
T T
U U
V V
- 22 -
A A
B B
finding but he was ready to concede that D1 was an actual/direct trafficker.
C In the end, for the purpose of sentencing, it really makes little difference. C
D D
87. For this reason, for Charge 2, I will further enhance the
E starting point by 2 months to reach a final starting point of 75 months’ E
imprisonment. I am of the considered view that by adding only a total of
F F
4 months to the initial starting point by reason of the fact of two drugs and
G the role and culpability of D1, the enhancement is by no means excessive G
and the final starting point for Charge 2 thus arrived at is fair, just and
H H
balanced.
I I
88. For the same reason ie for the role and culpability of D1, I will
J J
enhance the starting point of Charge 1 by a small margin to reach the final
K starting point of 27 months’ imprisonment. K
L L
89. For Charge 3, I will adopt a starting point of 4 ½ months’
M imprisonment (Law Sing (supra) considered). M
N N
90. For Charge 4, I will adopt a starting point of 6 months’
O imprisonment (Muhammad Waqas (supra) considered). O
P P
91. D1 pleaded guilty in good time, earning for herself the
Q customary 1/3 sentencing discount. Q
R R
92. For the special circumstances on the papers relating to D1, I
S will grant her a further sentencing discount resulting, together with the S
earlier discount of 1/3, in a cumulative sentencing discount of 40%.
T T
U U
V V
- 23 -
A A
B B
93. There are no other mitigating factors of substance from D1 to
C justify any further reduction in her sentences. C
D D
94. By the approach with which I calculated and considered the
E sentence on Charge 2, the sentence on Charge 1 is subsumed into the E
sentence on Charge 2. For this reason, I will order the sentences of Charges
F F
1 and 2 to run concurrently.
G G
95. The drug subject of Charge 4 was extracted from the inhaling
H H
devices subject of Charge 3. I am satisfied that the sentences in relation
I thereto ought to run concurrently as well. I
J J
96. Charges 1 and 2 as a group relates to a different criminal
K activity as that relating to the group encompassing Charges 3 and 4. K
Although they took place at the same place and time (roughly, in the case
L L
of Charge 1), in principle, the two groups ought to attract consecutive
M sentences. M
N N
97. However, before determining the final aggregate sentence, I
O will need to consider totality and this incidentally is also the final step in O
the Herry Jane Yusuph approach. In essence, I will need to take a step back
P P
and consider what sentence is just, fair and balanced in the overall
Q circumstances of the offence3 and the offender. In this case, there are a Q
large number of plastic bags containing a large amount of cocaine. Hence,
R R
the scale of the trafficking operation could not be described as small. The
S possession charges are an offshoot really and I will not order other than a S
T T
3
or offences as the case may be
U U
V V
- 24 -
A A
B B
small consecutive sentence to the main trafficking sentence to arrive at
C what I believe to be an appropriate overall sentence for D1. C
D D
(D1 and D2, please stand)
E E
98. For Charge 1, D1 is sentenced to 16 months’ imprisonment4.
F F
G 99. For Charge 2, D1 is sentenced to 45 months’ imprisonment. G
H H
100. For Charge 3, D1 is sentenced to 2 months and 21 days’
I imprisonment; D2 is sentenced to a fine of $1,000, to be deducted from his I
bail money.
J J
K 101. For Charge 4, D1 is sentenced to 3 months and 18 days’ K
imprisonment; D2 is sentenced to a fine of $1,500, to be deducted from his
L L
bail money.
M M
102. In the case of D1, I order that the sentences on Charges 1 and
N N
2 are to run concurrently. I also order that the sentences on Charges 3 and
O 4 are to run concurrently. I further order that one month of the sentences O
on Charges 3 and 4 are to run consecutively to the sentences on Charges 1
P P
and 2, making an aggregate sentence in the case of D1 of 46 months’
Q imprisonment. Q
R R
S ( Isaac Tam ) S
District Judge
T T
4
Rounded down to whole figure
U U
V V
A A
B B
DCCC 705/2024
C [2025] HKDC 824 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 705 OF 2024
F F
G ---------------------------- G
HKSAR
H H
v
I CHU HOI LING (D1) I
YAU CHUN KIT (D2)
J J
----------------------------
K Before: His Honour Judge Tam in Court K
Date: 14 May 2025
L L
Present: Ms Chung Wing Sze Natalie, Public Prosecutor, for HKSAR
M Mr Kan Wing Fai Terry, instructed by Adrian Yeung & M
Cheng, assigned by the Director of Legal Aid, for the 1st
N N
defendant
O Ms Po Hi Hau Rachel, instructed by Kwok, Ng & Chan, O
assigned by the Director of Legal Aid, for the 2nd defendant
P P
Offences: [1] Trafficking in a dangerous drug (販運危險藥物)
Q Q
[2] Trafficking in dangerous drugs (販運危險藥物)
R [3] Possession of apparatuses fit and intended for the smoking R
or inhalation of a dangerous drug (管有適合於及擬用作吸
S S
食或吸服危險藥物的器具)
T T
[4] Possession of a dangerous drug (管有危險藥物)
U U
V V
-2-
A A
B B
C --------------------------------------- C
REASONS FOR SENTENCE
D D
---------------------------------------
E E
F F
1. Before me, D1 and D2 jointly face 4 charges on a Charge
G Sheet as follows. G
H H
2. Charge 1 is Trafficking in a dangerous drug, contrary to
I section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. I
Particulars are that they, on 6 February 2024, at 19th Floor, Sand Martin
J J
House, Sha Kok Estate, Sha Tin, New Territories, in Hong Kong,
K unlawfully trafficked in a dangerous drug, namely 0.58 gramme of a solid K
containing 0.51 gramme of cocaine.
L L
M 3. Charge 2 is Trafficking in dangerous drugs, contrary to M
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
N N
Particulars are that they, on the same date, at Room 1907, Sand Martin
O House aforesaid, in Hong Kong, unlawfully trafficked in dangerous drugs, O
namely 20.60 grammes of a solid containing 18.12 grammes of cocaine
P P
and 1.47 grammes of a crystalline solid containing 1.46 grammes of
Q methamphetamine hydrochloride. Q
R R
4. Charge 3 is Possession of apparatuses fit and intended for the
S smoking or inhalation of a dangerous drug, contrary to section 36(1) and S
(2) of the Dangerous Drugs Ordinance, Cap 134. Particulars are that they,
T T
on the same date, at Room 1907 aforesaid, in Hong Kong, had in their
U U
V V
-3-
A A
B B
possession apparatuses, namely two inhaling devices, fit and intended for
C the smoking or inhalation of a dangerous drug, namely methamphetamine. C
D D
5. Charge 4 is Possession of a dangerous drug, contrary to
E section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. E
Particulars are that they, on the same date, at Room 1907 aforesaid, in
F F
Hong Kong, had in their possession a dangerous drug, namely 97 millilitres
G of a liquid upon drying contain 0.58 gramme of a solid containing 0.38 G
gramme of methamphetamine.
H H
I 6. D1 pleaded guilty to all 4 charges. D2 pleaded guilty to I
Charges 3 and 4 but not guilty to Charges 1 and 2.
J J
K 7. Prosecution asked that Charges 1 and 2 as against D2 be left K
on court file not to be proceeded with without the leave of this court or the
L L
Court of Appeal. I so ordered.
M M
Facts admitted by D1 and D2
N N
O 8. On 6 February 2024, at around 1625 hours, D1 left the flat O
(“the Flat”) known as Room 1907, Sand Martin House, Sha Kok Estate,
P P
Shatin. Police officers nearby intercepted her.
Q Q
9. Upon search, one tissue paper containing 2 transparent
R R
resealable plastic bags containing 0.58 gramme of a solid containing 0.51
S gramme of cocaine (E1) was found in D1’s right hand. Two mobile phones S
were seized from D1.
T T
U U
V V
-4-
A A
B B
10. D1 was arrested for “Trafficking in a dangerous drug”. Under
C caution, D1 admitted she sold dangerous drug to earn money for the C
purpose of raising her children and she asked for a second chance.
D D
E 11. D2 was inside the Flat. Upon search of the kitchen of the Flat, E
the police found and sezied:
F F
G From on top of the kitchen wardrobe G
H H
(a) A white container containing 24 transparent resealable
I plastic bags containing a total of 3.17 grammes of a I
solid containing 2.62 grammes of cocaine (E2);
J J
K (b) One transparent resealable plastic bag containing 3 K
transparent resealable plastic bags containing a total of
L L
0.84 gramme of a solid containing 0.73 gramme of
M cocaine (E3); M
(c) 17 transparent resealable plastic bags containing a total
N N
of 4.81 grammes of a solid containing 4.22 grammes of
O cocaine (E4); O
P P
(d) One transparent resealable plastic bag containing 22
Q transparent resealable plastic bags containing a total of Q
6.25 grammes of a solid containing 5.50 grammes of
R R
cocaine (E5);
S S
T T
U U
V V
-5-
A A
B B
(e) One transparent resealable plastic bag containing 0.63
C gramme of a crystalline solid containing 0.63 gramme C
of methamphetamine hydrochloride (E6);
D D
E (f) One transparent resealable plastic bag containing 0.84 E
gramme of a crystalline solid containing 0.83 gramme
F F
of methamphetamine hydrochloride (E7);
G G
(g) One green glass bottle inserted with (i) one plastic
H H
straw/one segment of plastic tube and (ii) one glass tube,
I containing 27 millilitres of a liquid, which upon drying, I
was found to contain 0.21 gramme of a solid containing
J J
0.14 gramme of methamphetamine (E9);
K K
(h) One silver plastic bottle (with a metal tube) inserted
L L
with (i) one glass tube with one end shaped as a bulb
M and (ii) one plastic straw, containing 70 millilitres of a M
liquid, which upon drying, was found to contain 0.37
N N
gramme of a solid containing 0.24 gramme of
O methamphetamine (E10); O
P P
(i) One lighter and one plier and one clamp; and
Q Q
(j) Cash of $400.
R R
S S
T T
U U
V V
-6-
A A
B B
From inside the left cabinet of the kitchen wardrobe
C C
(k) One transparent resealable plastic bag containing 5.53
D D
gramnmes of a solid containing 5.05 grammes of
E cocaine (E8); and E
F F
(l) 3 measuring cups.
G G
From inside the right cabinet of the kitchen wardrobe
H H
I (m) One black electronic scale; and I
J J
(n) 3 plastic bags containing multiple empty transparent
K resealable plastic bags. K
L L
12. D1 was further arrested for “Trafficking in dangerous drugs”.
M Under caution, D1 admitted she sold the dangerous drugs for the purpose M
of improving the living standard of her children.
N N
O 13. Next, D1 was arrested for “Possession of apparatuses fit and O
intended for the inhalation of dangerous drug” regarding E9-10. Under
P P
caution, D1 admitted the drug-inhaling apparatuses were for her self-
Q consumption use. Q
R R
14. Upon search of D2, one mobile phone was seized from him.
S At around 1738 hours, D2 was arrested for “Possession of apparatuses fit S
and intended for the inhalation of dangerous drug” regarding E9-10.
T T
U U
V V
-7-
A A
B B
15. In total, E1-8 are 69 plastic bags containing 21.18 grammes
C of a solid containing 18.63 grammes of cocaine (ie E1-5 & 8) and 2 plastic C
bags containing containing 1.47 grammes of a crystalline solid containing
D D
1.46 grammes of methamphetamine hydrochloride (ie E6-7).
E E
16. The estimated street value of the seized dangerous drugs is
F F
around $28,189.83.
G G
17. During D1’s cautioned VRI conducted in the small hours of 7
H H
February 2024, she stated:
I I
(a) She resided in the Flat with D2; she was going to
J J
deliver the seized cocaine E1 on 6 February 2024;
K K
(b) She knew what the seized dangerous drugs were and
L L
where they were placed inside the Flat; the two seized
M inhaling apparatuses (ie E9-10) were for her self- M
consumption of methamphetamine;
N N
O (c) The mobile phone with a ‘Hello Kitty’ phone case O
seized from her was used for Whatsapp communication
P P
with her drug trafficking boss; she roughly received
Q around 12 grammes of cocaine from her boss each time; Q
R R
(d) Her boss gave instructions on the time, place, and
S method of delivery of dangerous drugs to the S
customer(s); D1 usually took taxi; the customers would
T T
U U
V V
-8-
A A
B B
either pay cash to D1 or pay directly to her boss via FPS
C or Alipay; C
D D
(e) Each plastic bag of dangerous drug would be sold for
E around $200 to $300; she would receive around $80 to E
$100 as reward for each bag sold;
F F
G (f) On 6 February 2024, at about 0700 hours, in Tsz Wan G
Shan, an unknown male gave her about 30-40
H H
transparent resealable plastic bags of about 12 grammes
I of cocaine; and I
J J
(g) The cash of $400 seized was crime proceeds.
K K
18. During D2’s cautioned VRI conducted in the small hours on
L L
7 February 2024, he stated that he was residing in the Flat with D1 and her
M daughter. M
N N
19. D1’s DNA was detected on E9 and D2’s DNA was detected
O on E10. O
P P
20. D1 now admits that she had E1 to E8 in her possession for the
Q purpose of unlawful trafficking. Q
R R
21. D1 and D2 now admit that they had joint possession of the
S dangerous drug methamphetamine in E9-10, which were inhaling devices S
fit and intended for the smoking or inhalation of a dangerous drug, namely
T T
methamphetamine.
U U
V V
-9-
A A
B B
Criminal records
C C
22. D1 has one previous conviction of possession of dangerous
D D
drug in 2013.
E E
23. D2 has 6 previous convictions, 4 of which are similar.
F F
G Antecedents G
H H
24. D1 is aged 34 (33 at the time of the offences), educated to F5
I level, has previously been a salesperson until 2021. D1 lived in public I
housing in Shatin with her daughter (15) whose father has broken up with
J J
D1. D1 also has a son (3) with D2 and this child is being taken care of by
K a foster family. K
L L
25. D2 is aged 37 (36 at the time of the offences), educated to F5
M level, unemployed since 2020. D2 was living with D1 and D1’s daughter M
in public housing in Shatin. D1 and D2 have a son (3) within their
N N
relationship.
O O
Mitigation
P P
Q D1 Q
R R
26. Mr Terry Kan of counsel assigned by the Director of Legal
S Aid mitigated on behalf of D1. The following is a summary of the S
mitigation submissions.
T T
U U
V V
- 10 -
A A
B B
27. D1 pleaded guilty. She is remorseful. She promises not to re-
C offend. She asks the court to give her a chance. Apart from a daughter, C
she also has a son (14) with the same ex-boyfriend. She wishes to leave
D D
prison sooner so she could take care of the afore-mentioned daughter and
E son. E
F F
28. During remand in custody, she took 4 Christian courses and
G passed the exams (certificates submitted). She also took two English G
courses organized by CUSCS (records submitted). D1 wishes to equip
H H
herself more so that she could contribute to society when released.
I I
29. For Charges 1 and 2, Mr Kan admitted in court on behalf of
J J
D1 that her role was an actual/direct trafficker.
K K
30. Mr Kan reminded the court of the six-step approach of
L L
sentencing in drug trafficking cases set out in HKSAR v Herry Jane Yusuph
M [2021] 1 HKLRD 290 and further elaborated in HKSAR v Lee Ming Ho M
[2024] 1 HKLRD 1186. One of the salient features of this sentencing
N N
approach is the moving away from a rigid arithmetical approach, with
O starting points and sentences based purely on narcotic content, to a more O
discretionary approach involving an assessment of the defendant’s role and
P P
culpability. However, the quantity of the dangerous drug involved remains
Q the primary determinant in sentencing. Q
R R
31. For Charge 1, the drug was 0.51 gramme of cocaine.
S S
32. Cocaine and heroin are equated for sentencing purposes and
T T
the tariffs fixed for heroin in R v Lau Tak Ming [1990] 2 HKLR 370 apply
U U
V V
- 11 -
A A
B B
to cocaine. This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC
C 342. For the quantity of 0.51 gramme of cocaine, the relevant guideline C
band is up to 10 grammes for which the sentence is between 2 and 5 years’
D D
imprisonment.
E E
33. For Charge 1, on a strictly arithmetical approach, 0.51
F F
gramme of cocaine would attract a starting point of 2 years and 1 month’s
G imprisonment. G
H H
34. For Charge 2, the drugs were 18.12 grammes of cocaine and
I 1.46 grammes of ICE. For the quantity of 18.12 grammes of cocaine, the I
relevant guideline band is 10 to 50 grammes for which the sentence is
J J
between 5 and 8 years’ imprisonment.
K K
35. The starting point for up to 10 grammes of ICE falls within
L L
the band of 3 to 7 years’ imprisonment (HKSAR v Tam Yi Chun [2014] 3
M HKLRD 691). M
N N
36. For Charge 2, on a strict arithmetical approach, 18.12
O grammes of cocaine would attract a starting point of 5 years and 7 months’ O
imprisonment; and 1.46 grammes of ICE would attract a starting point of
P P
3 years and 7 months’ imprisonment.
Q Q
37. Mr Kan invited the court to add the 0.51 gramme of cocaine
R R
from Charge 1 to the 18.12 grammes of cocaine from Charge 2. Reason is
S that Charge 1 was part and parcel of Charge 2 in the present case. Total S
quantity of cocaine added up to 18.63 grammes.
T T
U U
V V
- 12 -
A A
B B
38. In the case of HKSAR v Cheung Wai Man [2019] 1 HKLRD
C 817 at para 39, there were lengthy discussions on both the individual C
approach and combined approach. It was submitted that in the
D D
circumstances of this case, the combined approach is to be preferred.
E E
39. In HKSAR v Chan Yuk Leong, CACC 318/2013, three tests
F F
were laid down to calculate the combined starting points and to cross-check
G the sentence by the three tests, namely, absurdity test, conversion test and G
ratio test, so that the ultimate sentence will be within range.
H H
I 40. Using the three tests, Mr Kan obtained the following results:- I
J J
(a) Absurdity test – 5 years 9 months (ie 69 months) for
K 20.09 grammes of cocaine; 7 years 8 months (ie 92 K
months) for 20.09 grammes of ICE;
L L
M (b) Conversion test – 6 years 2 months (ie 74 months) for M
7.96 grammes (converted + actual) of ICE; and
N N
O (c) Ratio test – 92 x 7.27% (ICE) plus 69 x 92.73% O
(Cocaine) = 70.7 months.
P P
Q 41. Mr Kan submits that it would not be wrong to take a starting Q
point of 70 months for Charge 2, and to order the sentence on Charge 1 to
R R
run wholly concurrently with that on Charge 2.
S S
42. The next step is to assess the defendant’s role and culpability.
T T
The guidelines are based on the courier or storekeeper ie the person who
U U
V V
- 13 -
A A
B B
was delivering, distributing, or conveying the drugs in question for a dealer;
C or storing the consignment of drugs on behalf of himself or someone else C
(see para 59 of Herry Jane Yusuph).
D D
E 43. It was admitted by Mr Kan that D1 in this case was an E
actual/direct trafficker.
F F
G 44. Mr Kan suggested adding 2 months to the starting point to G
reflect the above factor and the fact that two different kinds of drugs were
H H
trafficked in.
I I
45. It was submitted that there were no other aggravating factors
J J
in this case.
K K
46. Mr Kan reminded the court that as far as mitigating factors are
L L
concerned, personal circumstances generally count for little for this offence.
M M
47. Mr Kan also reminded the court to take into account totality
N N
before determining the sentence for Charge 2.
O O
48. For Charge 3, it was submitted that a sentence of 3 months’
P P
imprisonment after a plea of guilty (4 ½ months as starting point) would
Q be usual (see R v Law Sing, HCMA 890/1996). Q
R R
49. For Charge 4, the dangerous drug was 0.38 gramme of ICE.
S S
T T
U U
V V
- 14 -
A A
B B
50. It was submitted that a starting point of 6 months’
C imprisonment would reflect the criminality of Charge 4 (see HKSAR v C
Muhammad Ali Pahat, HCMA 342/2022).
D D
E 51. D1 pleaded guilty to the charges entitling her to 1/3 E
sentencing discount. There are also some special circumstances on paper
F F
which, subject to the court’s acceptance, might entitle D1 to a sentencing
G discount of 40-45% (inclusive of the 1/3 aforesaid). G
H H
52. Upon consideration of the totality principle, Mr Kan asks that
I the sentences on Charges 1 and 2 be made to run concurrently. He further I
asks for the same treatment as regards Charges 3 and 4. He asks that a
J J
small proportion not exceeding half of the sentences on Charges 3 and 4 be
K made to run consecutively to the sentences on Charges 1 and 2. K
L L
D2
M M
53. Ms Rachel Po of counsel assigned by the Director of Legal
N N
Aid mitigated on behalf of D2. The following is a summary of the
O mitigation submissions. O
P P
54. D2 previously lived with D1 and her daughter. D1 and D2
Q have a son who is under the care of Social Welfare Department. D2 now Q
lives with his parents (both over 60), who provide emotional and financial
R R
support to D2.
S S
55. Formerly a construction worker earning $18,000 monthly, D2
T T
faced reduced work and layoffs following Covid-19 outbreak in 2020. In
U U
V V
- 15 -
A A
B B
2023, he experienced chronic bladder pain and frequent urination,
C exacerbating stress leading to a relapse into drugs. C
D D
56. On the night before the offences, D2 was preoccupied with
E video games until the early hours of 6 February 2024, after which he fell E
asleep. He recalled D1 briefly leaving the flat and then returning. D2
F F
awoke when police arrived and only then became aware of the drugs during
G the kitchen search. G
H H
57. D2 expresses remorse for his actions. He aspires to be a
I responsible father to his son and a supportive figure to D1’s teenage I
daughter. D2’s parents are supportive to him.
J J
K 58. D2 has sought medical treatment for his bladder condition K
while on remand.
L L
M 59. Since his release on bail on 8 April 2025, D2 said he has M
remained drug-free, demonstrating a genuine commitment to rehabilitation.
N N
O 60. For Charge 3, R v Law Sing [1996] 4 HKC 477 established a O
3-month imprisonment term for possession of drug-related apparatuses
P P
following a guilty plea.
Q Q
61. For Charge 4, HKSAR v Mok Cho Tik [2001] 1 HKC 261
R R
suggests a starting point of 12-18 months’ imprisonment for possession of
S dangerous drugs by a bona fide user. However, the court emphasized S
flexibility, with the quantity of drugs being the primary factor. In the
T T
present case, the two bottles containing 0.38 gramme of methamphetamine,
U U
V V
- 16 -
A A
B B
used solely for personal consumption, pose no risk of dissemination.
C Further, D2 has no previous conviction for drug trafficking offence. C
D D
62. It was submitted that a starting point of 6 months’
E imprisonment would reflect the criminality of Charge 4 (see HKSAR v E
Muhammad Ali Pahat, referred to by D1).
F F
G 63. D2 has 6 previous convictions 4 of which were related to drug G
possession committed prior to the present incident.
H H
I 64. D2 frankly admitted to relapse in 2021 following his son’s I
birth. A social welfare protection order was imposed due to D2’s drug
J J
abuse. From September 2022 to January 2024, D2 attended regular
K counselling at Hong Kong SKH Welfare Council Neo-Horizon, K
undergoing 45 urine tests with only one positive result in early 2024 (see
L L
official letter dated 29 April 2025 submitted). While susceptible to relapse,
M it was submitted that D2 is not a persistent offender. It was submitted that M
a starting point of 6 months for Charge 4 would be appropriate.
N N
O 65. Given the offences arose from the same incident, and because O
of totality, the court was invited to impose concurrent sentences.
P P
Q 66. After considering Fu Man Kit and Superintentent of Tai Lam Q
Correctional Institution [2022] 1 HKLRD 219 and HKSAR v Cheng Tsz
R R
Ho & Anor [2024] HKCA 885 at the invitation of the court, it was
S submitted1, inter alia, that: S
T T
1
Prosecution made similar written submissions, on the invitation of the court.
U U
V V
- 17 -
A A
B B
(a) Rule 69 of the Prison Rules (Cap 234A) (sentence
C remission) falls under CSD’s authority, not the court; C
D D
(b) Common law precludes sentencing judges from
E factoring in remission to avoid inflating sentences; and E
F F
(c) If, however, the rules governing sentence reduction
G result in unfair outcome for the prisoner, the court will G
not ignore it (para 11 of Cheng Tsz Ho), suggesting that
H H
the court will consider the good behavior during
I remand when determining sentence. I
J J
67. Ms Po informed the court of the following remand history of
K D2. D2 was remanded from 8 February 2024 to 8 April 2025, totaling 424 K
days. On 19 June 2024, while on remand, D2 was sentenced to 4 months’
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imprisonment (122 days) for “possession of dangerous drug” in a separate
M case at Kowloon City Magistracy (KC/380/18). Assuming his good M
behavior, his actual term for that case would be reduced by 1/3, resulting
N N
in 81 days served (122 – 41 days) (subject to confirmation by prosecution).
O Consequently, the remaining remand period was 343 days (424 – 81 days). O
P P
68. Ms Po suggested a starting point of 4 ½ months for Charge 3;
Q and a starting point of 6 months for Charge 4. Q
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69. The court is urged to impose a lenient sentence, allowing for
S D2’s immediate release to continue his rehabilitation. S
T T
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A A
B B
Sentence
C C
70. At the outset, I declare that I will discard the apparent
D D
aggravating factor of joint enterprise in relation to Charges 3 and 4 for two
E reasons. First, they are simply joint possession for individual use offences. E
Secondly, D1 and D2 were cohabitees so it would not have been unnatural
F F
for them to jointly possess these items without adding to their individual
G criminality. G
H H
71. I will deal with D2 first because it is much simpler to deal
I with. For the offences that D2 has been convicted of, before sentencing I
him to an imprisonment sentence, I will have to obtain a DATC report
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(section 54A of the Dangerous Drugs Ordinance, Cap 134, refers) and for
K that reason, I will have to remand him in custody for a period not exceeding K
3 weeks.
L L
M 72. D2 has been remanded in custody for this case for a period of M
about 343 days.
N N
O 73. There are two aggravating factors in relation to D2. First, he O
committed the present offences whilst on, and jumping, bail for another
P P
case of possession of dangerous drug (KC/380/18), a case he committed in
Q 2017 but was not sentenced until 19 June 2024, probably because he was Q
not re-arrested until the date of arrest of the present case. Secondly, he is
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a repeat offender of possession of dangerous drug.
S S
74. If I were to sentence D2 to a term of imprisonment, for Charge
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3, I would likely have sentenced him to 4 months’ imprisonment; and for
U U
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A A
B B
Charge 4, I would likely have sentenced him to 5 months’ imprisonment
C (HKSAR v Muhammad Waqas [2019] 4 HKLRD 323, 338-339, at paras C
62-64, considered), in both cases, taking into account the aggravating
D D
factors and his pleas of guilty. I should add that, apart from the pleas of
E guilty, there are no other mitigating factors of weight which would have E
caused me to reduce his notional sentences further.
F F
G 75. However, these theoretical sentences are not commensurate G
with the time in custody that D2 has already spent.
H H
I 76. In the premises, I will not sentence D2 to any further terms of I
imprisonment, thus dispensing with the need to remand him further for
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obtaining a report. I will simply fine him for both charges. The fines that
K I will impose will have taken into account the aggravating factors and his K
pleas of guilty.
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M 77. Now, back to D1. Needless to say, trafficking in a dangerous M
drug is a serious offence anywhere in the world. It is made more serious
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where more than one type of serious drug is involved, as here.
O O
78. Herry Jane Yusuph (supra) sets out the six-step approach to
P P
sentencing an offender in such situations.
Q Q
79. For Charge 1 of trafficking in 0.51 gramme of cocaine, the
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arithmetical starting point according to the tariff is 25.84 months’
S imprisonment. The relevant sentencing band in the tariff for up to 10 S
grammes of the drug has not been disturbed by the recent case of HKSAR
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v Huang Ruifang [2025] HKCA 234.
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A A
B B
C 80. For Charge 2 of trafficking in 18.12 grammes of cocaine and C
1.46 grammes of methamphetamine hydrochloride ie ICE, I accept the
D D
submission that the amount of cocaine under Charge 1 should be added to
E that here to form a total amount of cocaine of 18.63 grammes for the E
purpose of calculation and ultimately sentence. For the drug ICE, the
F F
traditional tariff for the sentencing band for up to 10 grammes of the drug
G has also not been disturbed by the case of Huang Ruifang (supra). G
H H
81. I also accept the submission that the combined approach of
I sentencing is more appropriate than the individual approach; and for that I
purpose, I will need to consider, inter alia, the results of the three cross-
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checking tests, namely, absurdity test, conversion test, and ratio test, before
K finalizing the appropriate starting point for Charge 2. K
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82. The results of the three tests, according to my own
M calculations2, are as follows:- M
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(a) Absurdity test: 20.09 grammes of cocaine – 69 months;
O 20.09 grammes of ICE – 92 months; O
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(b) Conversion test: 23.9 grammes of cocaine – 72.5
Q months; 8.0 grammes of ICE – 74.8 months; and Q
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(c) Ratio test: 92.73% x 69 months (cocaine) + 7.27% x 92
S months (ICE) = 70.67 months. S
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2
The sentencing bands in the relevant traditional tariffs have not been disturbed by the case of Huang
Ruifang (supra).
U U
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A A
B B
C 83. Based on the above figures, I regard 71 months’ imprisonment C
as a fair initial starting point for Charge 2 and I will adopt it. Because of
D D
the presence of more than one type of serious drug, I will enhance the
E starting point by 2 months (see HKSAR v Islam SM Majharul [2020] 3 E
HKLRD 146, 157, at para 27(3) & (4)).
F F
G 84. Next, I will consider the role and culpability of D1 in the act G
of trafficking. Under caution at the scene, D1 admitted she sold (sic) the
H H
dangerous drugs for purpose of improving her children’s living standard.
I Under cautioned VRI, D1 said she was a deliverer of dangerous drugs as I
per her boss’s order; she would sometimes receive cash from customers;
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she would receive reward of $80 to $100 for each bag of drugs sold; the
K cash of $400 seized from the kitchen was crime proceeds. K
L L
85. At the crime scene, a plier, a clamp, 3 measuring cups, an
M electronic scale and multiple empty transparent resealable plastic bags M
were found.
N N
O 86. Based on these undisputed facts, and despite the “exculpatory” O
statement (to which I gave no weight) under cautioned VRI that about 12
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grammes of cocaine in 30 to 40 transparent resealable plastic bags were
Q taken by her to the scene after collection of the same from an unknown Q
male in the morning of the day of arrest, I draw the only reasonable
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inference that D1 was at the scene operating a packaging and distribution
S centre for dangerous drugs (see Herry Jane Yusuph (supra) at 320-322, S
paras 61-64). Mr Kan for D1 was at pains to persuade me away from this
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A A
B B
finding but he was ready to concede that D1 was an actual/direct trafficker.
C In the end, for the purpose of sentencing, it really makes little difference. C
D D
87. For this reason, for Charge 2, I will further enhance the
E starting point by 2 months to reach a final starting point of 75 months’ E
imprisonment. I am of the considered view that by adding only a total of
F F
4 months to the initial starting point by reason of the fact of two drugs and
G the role and culpability of D1, the enhancement is by no means excessive G
and the final starting point for Charge 2 thus arrived at is fair, just and
H H
balanced.
I I
88. For the same reason ie for the role and culpability of D1, I will
J J
enhance the starting point of Charge 1 by a small margin to reach the final
K starting point of 27 months’ imprisonment. K
L L
89. For Charge 3, I will adopt a starting point of 4 ½ months’
M imprisonment (Law Sing (supra) considered). M
N N
90. For Charge 4, I will adopt a starting point of 6 months’
O imprisonment (Muhammad Waqas (supra) considered). O
P P
91. D1 pleaded guilty in good time, earning for herself the
Q customary 1/3 sentencing discount. Q
R R
92. For the special circumstances on the papers relating to D1, I
S will grant her a further sentencing discount resulting, together with the S
earlier discount of 1/3, in a cumulative sentencing discount of 40%.
T T
U U
V V
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A A
B B
93. There are no other mitigating factors of substance from D1 to
C justify any further reduction in her sentences. C
D D
94. By the approach with which I calculated and considered the
E sentence on Charge 2, the sentence on Charge 1 is subsumed into the E
sentence on Charge 2. For this reason, I will order the sentences of Charges
F F
1 and 2 to run concurrently.
G G
95. The drug subject of Charge 4 was extracted from the inhaling
H H
devices subject of Charge 3. I am satisfied that the sentences in relation
I thereto ought to run concurrently as well. I
J J
96. Charges 1 and 2 as a group relates to a different criminal
K activity as that relating to the group encompassing Charges 3 and 4. K
Although they took place at the same place and time (roughly, in the case
L L
of Charge 1), in principle, the two groups ought to attract consecutive
M sentences. M
N N
97. However, before determining the final aggregate sentence, I
O will need to consider totality and this incidentally is also the final step in O
the Herry Jane Yusuph approach. In essence, I will need to take a step back
P P
and consider what sentence is just, fair and balanced in the overall
Q circumstances of the offence3 and the offender. In this case, there are a Q
large number of plastic bags containing a large amount of cocaine. Hence,
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the scale of the trafficking operation could not be described as small. The
S possession charges are an offshoot really and I will not order other than a S
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3
or offences as the case may be
U U
V V
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A A
B B
small consecutive sentence to the main trafficking sentence to arrive at
C what I believe to be an appropriate overall sentence for D1. C
D D
(D1 and D2, please stand)
E E
98. For Charge 1, D1 is sentenced to 16 months’ imprisonment4.
F F
G 99. For Charge 2, D1 is sentenced to 45 months’ imprisonment. G
H H
100. For Charge 3, D1 is sentenced to 2 months and 21 days’
I imprisonment; D2 is sentenced to a fine of $1,000, to be deducted from his I
bail money.
J J
K 101. For Charge 4, D1 is sentenced to 3 months and 18 days’ K
imprisonment; D2 is sentenced to a fine of $1,500, to be deducted from his
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bail money.
M M
102. In the case of D1, I order that the sentences on Charges 1 and
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2 are to run concurrently. I also order that the sentences on Charges 3 and
O 4 are to run concurrently. I further order that one month of the sentences O
on Charges 3 and 4 are to run consecutively to the sentences on Charges 1
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and 2, making an aggregate sentence in the case of D1 of 46 months’
Q imprisonment. Q
R R
S ( Isaac Tam ) S
District Judge
T T
4
Rounded down to whole figure
U U
V V