HKSAR v. Mak Ka Leung

HCCC 127/2019

[2019] HKCFI 2648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 127 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty to one count of trafficking in a dangerous drug, namely, 13.1 grammes of a crystalline solid containing 12.9 grammes of methamphetamine hydrochloride and 14 grammes of a solid containing 12 grammes of cocaine.

On the date of the offence, in the afternoon, the defendant was seen leaving his flat and upon interception the drugs in two separate packets were found from the inside of his left jacket pocket. Upon arrest and caution he said that these were for his own consumption. A search was made of the defendant’s flat and nothing important was found. The estimated retail value of the drugs seized was in the region of HK$25,055. The defendant is aged 24 and he has a criminal record but these were for offences which were minor and has nothing to do with drugs.

Now, in cases of drug trafficking a lot of the times the background of the defendant pales into insignificance against the seriousness of the offence. I agree with Mr Lai that in this case the combined approach is the most reasonable approach in the circumstances. I am grateful to Mr Lai for working out the three different tests, the absurdity test, the conversion test and the ratio test. I accept his calculation that taking the combined approach the starting point would be in the region, adopting the ‘Ice’, methamphetamine guidelines in Tam Yi Chun [2014] 3 HKLRD 691 would give us a starting point of about 7 to 7½ years.

According to the written submissions of Mr Lai it is submitted that the defendant had been in gainful employment helping out at a fish stall, earning about $19,000 a month. It is submitted that the defendant was on his way to share the drugs with his friends who would be also consuming the ‘Ice’ and he would be consuming the cocaine with them. It is clear that even if the defendant is a habitual user, the amount of cocaine found would be more than necessary for a single consumption or double consumption. So we also have the problem that even if what he says is true, there is a significant danger of the drugs being shared amongst other people.

Mr Lai very properly referred to the case of HKSAR v Wong Suet Hau [2002] HKLRD 69, where the Vice President of the court listed out some factors to be considered when considering whether part of the drugs were for self‑consumption. It is clear that the various factors as Mr Lai said may apply to the defendant. For example, the fact that he is an addict or a habitual user and that because of his employment he has an ability to pay for the drugs.

It is clear that the drugs, as I have said, were found on the defendant’s person in two bags and taken out of his home. If what he says is true that he was taking it to share with his friends, then the 12 grammes of cocaine which as Mr Lai said and I agree would last about a month why would he be taking all that amount out of his residence. The defendant, however, has submitted that he will not elect to have a Newton hearing on the issue of self-consumption.

So I do take into account the fact that the defendant has no previous convictions to do with drugs. I also accept that he is a user of cocaine, as submitted in the written submissions, basically because, as Mr Lai pointed out, he was tested positive for cocaine upon arrest and that he had high concentration of amphetamines in his system two days after his arrest.

So having considered all the above I consider that a proper starting point in this case would be one of 7 years and I would give the defendant the full one-third discount plus about 10 per cent more to take into account that a small quantity would be for his own consumption. Therefore, the

defendant is sentenced to 4 years’ imprisonment.