HKSAR v. Mak Kai Fat

DCCC 152/2018

[2018] HKDC 1582

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 152 OF 2018

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Reasons for Sentence

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Charges and facts

1.The Defendant pleads guilty to 2 charges of trafficking in dangerous drugs.  In the early morning on 1 November 2017, the police were on patrol near Harbour Plaza Resort City in Tin Shui Wai.  They saw the Defendant and a female LAM get off from a private vehicle.  LAM went to the toilet of the hotel. 

2.Finding them suspicious, the police kept them under observation and intercepted them for search after LAM came out from the toilet.  The Defendant’s trouser pocket carried a package containing 26 plastic bags containing 10.90 grammes of a solid containing 1.43 grammes of ketamine (“E1”).  The Defendant was arrested for drug trafficking. This relates to the 1^st Charge.

3.With his consent, the police searched the private car, which was registered in his own name.  The boot of the car had a pocket containing 18 plastic bags containing 3.75 grammes of a solid containing 2.64 grammes of cocaine (“E2”). The Defendant was arrested for drug trafficking.  This relates to the 2^nd Charge.

4.He had 2 mobile phones and about $1,900 cash on him. 

5.He said under caution that E1 and E2 were purchased for self-use. 

6.In the subsequent video-recorded interview, he said under caution, inter alia, that:

(1) He had the only key of the car;

(2) He put E2 into the boot of the car;

(3) He forgot to put E1 away;

(4) He bought the dangerous drugh in such amount for a cheaper price;

(5) He divided them into small packets for limiting the dosage;

(6) His dose was one small package of E1 and one granule of E2;

(7) He could not recall when and where he had bought the dangerous drugs.

7.The street values of E1 and E2 were estimated to be $675 and $2,429 respectively.

8.At all material times, he possessed E1 and E2 for the purpose of unlawful trafficking. 

Mitigation

9.He is 36 years of age. He was a transportation worker at the time of arrest.  He was remorseful for what he had done, and in particular, for not being able to see his father at his last moment.  His mother suffered a minor stroke when he was detained.

10.He had no records for drug trafficking.   

Sentencing considerations

11.HKSAR v Yip Wai-yin [2004] 3 HKC 367 illustrates the “Individual” approach versus the “Combined” approach in sentencing cocktail drugs.  The latter approach is often, though not invariably, regarded as the correct approach.  It involves the calculation of the applicable sentence first based on the more or most serious drug (in terms of potency), and then the quantities of other (less serious) drugs. 

12.Trafficking in 1 – 10 grammes of ketamine shall warrant 2 – 4 years (SJ v Hii Siew-cheng [2007] 1 HKLRD 1).  Trafficking in up to 10 grammes of cocaine shall warrant 2 – 5 years(R v Lau Tak-ming [1990] 2 HKLR 370).   

Sentencing the Defendant

13.Adopting the “Combined” approach, I consider for each charge the starting point of 3 years (calculation wise, a combination of 2 years 6 months for the cocaine and 6 months for the ketamine).  After a one-third discount, the sentence is 2 years for each charge on a wholly concurrent basis.