HKSAR v. Mak Fung Yuen Vincent

DCCC 103/2019

[2019] HKDC 893

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 103 OF 2019

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. He is found to have trafficked in a combination of drugs that is 8.08 grammes of ketamine and 6.04 grammes of cocaine.

2.The facts show that the offence was committed by the defendant at his home and resulted out of the discovery of the drugs by the defendant’s mother.  It was on 9 November 2018.  She found a plastic bag on the defendant’s bed and under his pillow, and the drug was found in a bag containing various smaller bags.  The police were called by the defendant’s mother, and the defendant told the police that he had been given the drugs for him to deliver.  He would get $600 for doing that.  He was holding the drugs and he was to be contacted to deliver them to somebody else later.

3.The street value of the various drugs is the cocaine is $11,166 and the ketamine is $6,080.

4.Defendant admitted he was in possession of these drugs for the purpose of unlawful trafficking in them.

5.The defendant’s background is that he is still a young man -  he is 20 years old.  A significant feature of his background is that he had a previous conviction of trafficking in a dangerous drug.  That was imposed some 4 years ago in 2015 and was a sentence of 52 months’ imprisonment.  He would have been about 16 when that sentence was imposed.  He was released from that term of imprisonment on 25 September 2017, so he was out of prison for just over a year.

6.His background, that he was born in the Mainland.  He has no major health issues, not addicted to drugs.  At the time of his arrest, he was working as a chef in a Japanese restaurant, but the defendant clearly has not resumed normal life again after his release from custody.  The defendant appears to have succumbed to the temptation of trafficking the drugs again.  There is a danger of a person of his age who has been in custody for so long is he will be completely institutionalised.

7.Now, turning to the question of sentence.  The starting point for sentence in cases such as this is largely governed by the imposition of guideline sentencing. 

8.Here is a combination of drugs to be trafficked. As far as the cocaine is concerned, the total narcotic value of the cocaine is 6.04 grammes.  The tariff for cocaine up to 10 grammes is 2 to 5 years’ imprisonment.  As far as the ketamine is concerned, the quantity of drug is 8.08 grammes of ketamine and the tariff for ketamine under 10 grammes is between 2 to 4 years’ imprisonment. The total of both drugs is 14.12 grammes.

9.The court is asked to take what is described as the “mixed approach”, which is to assess the most serious of the drugs or that of the larger quantity. 

10.I will sentence generally based on that guideline, together with some consideration of the other drugs involved.  Even the quantity of combined drug is not that high here.  I would assess the starting point for the combination of drugs to be 4 years and 3 months’ imprisonment.

11.In this case, there is of course the aggravating factor of the defendant’s repeat commission of this particular offence within quite a short time of his release.  That is an aggravating factor and enhances the sentence by 6 months.

12.This gives a final starting point for sentence at 57 months’ imprisonment.

13.After deduction for the defendant’s plea of guilty, that will lead to a sentence of 38 months’ imprisonment.

14.That will be the sentence I impose.