HKSAR v. Mak Kwok Choi

DCCC 592/2018

[2019] HKDC 210

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 592 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to a charge of dangerous drug trafficking, involving 1.91 grammes of plant mixture containing 1.70 grammes of cannabis in herbal form and 2.26 grammes of a crystalline solid containing 1.92 grammes of methamphetamine hydrochloride (“Ice”). 

2.At around 6:00 p.m. on 2 May 2018, the police were on an anti-narcotics operation at Ming Lai House, Choi Wan (2) Estate, Ngau Chi Wan, Kowloon when they noticed the Defendant exiting Room 1110 ("the Flat"). They intercepted him outside the Flat and brought him back to the Flat.  

3.One transparent resealable plastic bag containing suspected cannabis in herbal form (Exhibit 1) and two transparent resealable plastic bags containing suspected Ice (Exhibit 2) were found from his right trouser pocket.

4.The Government Chemist subsequently confirmed that Exhibit 1 contained 1.91 grammes of plant mixture containing 1.70 grammes of cannabis in herbal form and Exhibit 2 contained a total of 2.26 grammes of a crystalline solid containing 1.92 grammes of Ice.

5.An electronic scale and a resealable transparent plastic bag containing 19 empty resealable transparent plastic bags were found on the table in the living room of the Flat.

6.He had a mobile phone and cash of HKS3,675 on him.  He was arrested for trafficking in a dangerous drug. Under caution, he said that the cannabis and Ice were for self-consumption.

7.The estimated street value of Exhibit 1 was around HK$520 and that of Exhibit 2 was around HK$1,220. The total value was around HK$1,740.

8.Two video-recorded interviews were conducted on the same day, during which he mentioned the following under caution:

(a) Exhibit 1 was cannabis and Exhibit 2 was Ice, and they were for self-consumption;

(b) He bought Exhibits 1 and 2 from an unknown male called "Ah Ming" at Fife Street in Mongkok for HKS1,000 at about 6 p.m. the day before. He then placed them inside his right trouser pocket and went home directly. He did not take the drugs out from the trousers after he had gone home;

(c) He was taking out the garbage when the police intercepted him outside the Flat and he was wearing the same trousers as the day before;

(d) The electronic scale was left there by his friend about a year ago and he bought those empty resealable plastic bags in Sham Shui Po about a week ago. The electronic scale was for weighing the drugs and he would put 0.5g of drugs into the empty resealable plastic bags for his consumption. He would consume a packet of drugs per day;

(e) He was unemployed but was not a CSSA recipient. He relied on his savings and support from his mother.

Mitigation

9.He is 54 years of age, of F. 1 education level.  He had many criminal records, amongst them 2 for possession of dangerous drugs (sentenced in 1999 to 10 months and in 2016 to 8 months respectively) and 1 for dangerous drug trafficking (sentenced in 2011 to 4 years).   

10.He lived with his mother and two teenage children before arrest.  He committed the present offence to make some money to alleviate his family’s financial burden.

Sentencing considerations

11.As stated in AG v Ching Kwok-hung [1991] 2 HKLR 125, later emended in HKSAR v Capitania [2004] HKCU 926, trafficking of “Ice” of up to 10 grammes shall be 3 – 7 years' imprisonment.

12.For trafficking in below 2,000 grammes of cannabis herbal, the sentence may be up to 4 months (HKSAR v Chor Lui HCMA 535/2001).  

Sentencing this Defendant

13.Based on the Combined Approach (under which the cannabis herbal herein was of insignificant quantity) I take a starting point of 3 years 3 months.  The only mitigating factor is his timely plea of guilty.  After a one-third discount for it, the sentence is 2 years 2 months.