HKSAR v. Mak Ka Ho

DCCC 924/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 924 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty today to one charge of trafficking in a dangerous drug, contrary to Section 4 of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars are that on 26 August this year outside Ping Shek Estate in Kowloon Bay, the defendant unlawfully trafficked a total of 80 grammes of a solid containing 61.2 grammes of ketamine.

3.This was a stop-and-search case.  At about 5.20 pm, police officers saw the defendant, thought he looked suspicious and stopped him.  Their suspicions were accurate and in the defendant’s underpants they found 18 packets of ketamine.  Three of the 18 packets were bigger bags and the rest were 15 smaller ones. 

4.The street value of this quantity of ketamine was estimated to be around $7,500.

5.The defendant told the police, under caution, that he had bought the ketamine for around $4,000, the drugs were for his own consumption and he needed a few grammes of ketamine every few hours.  When he was stopped, he was actually on his way home, but had taken the wrong bus.

6.Today, he admits he was trafficking that quantity of drugs, but in mitigation it was submitted he was an addict then and part of the drugs was for self-consumption.

7.The prosecution do not object to this submission.

8.The defendant has one previous conviction.  He, in 2013, was sentenced to a Drug Addiction Treatment Centre for possession of dangerous drugs. 

9.He was arrested again in June 2015 for possession of dangerous drugs.  That drug case will be tried in January 2016.  When he was stopped and searched on 26 August, he was actually on court bail for that possession of dangerous drugs offence.

10.The defendant is 22 years old.  He does come from a broken family; his parents divorced when he was young.  He has lived with his father and his younger brother since the divorce.  I have been told he has not had much parental supervision since he was young.

11.He left school after Form 2, which is a recipe for disaster.  It meant that he ended up hanging around undesirable peers.  He admits that he has been dabbling with dangerous drugs seriously since he was 15 years old.

12.I have had a letter from the defendant expressing his remorse.  It says he will turn over a new leaf and would like to quit his drug habit.

13.If the defendant does not stay away from that crowd of friends, he will find it hard to stay away from drugs.  If the defendant does not do something now about his drug addiction, he will spend the rest of his life in and out of prison.  He has to exercise some willpower to turn over a new leaf.

14.Where trafficking ketamine is concerned, the authority is Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323. Guidelines from the Court of Appeal:  in this case, the applicable starting point would be, where between 50 to 300 grammes is involved, a 6 to 9-year starting point would be appropriate.

15.I accept the mitigation put forward that part of the dangerous drugs would be for self-consumption.  The defendant would not have been sent to DATC in 2013 if he was not a drug addict.  I accept that he clearly did not quit the habit after DATC.

16.For this mitigation, I also referred myself to the authority of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  The Court of Appeal there discussed a discount from a basic starting point where part of the drugs is accepted to be for self-consumption.  Depending on the facts, a discount can fall between 10 to 25 per cent.  Obviously, the court should not overlook the latent risk factor that a portion of the dangerous drugs for the defendant’s own consumption may still be given to or shared with others.

17.I also referred myself to a more recent authority, HKSAR v Tsang Chung Keung, CACC 165/2014.  There, the Court of Appeal looked at previous sentences where discounts are given for this specific mitigation and discussed how much of a discount has been considered appropriate.

18.I take into account the facts of this case, your plea today, mitigation put forward, the fact you have no previous for trafficking in dangerous drugs, and the accepting mitigation that part of the dangerous drugs was for self-consumption. 

19.I will take a starting point of 6 years’ imprisonment.

20.I reduce that by 15 months, which is just over 20 per cent, for that mitigation.

21.Therefore, the starting point will be one of 57 months.

22.You have pleaded guilty.  You are entitled to a discount of one-third from that starting point.

23.After that discount is applied, for this offence, you are sentenced to 3 years and 2 months’ imprisonment.

COURT: Do you understand that sentence?

DEFENDANT: Yes, I do.