HKSAR v. Mak Hin Chun, Adrian

DCCC 312/2020

[2020] HKDC 773

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 312 OF 2020

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 21.6 grammes of a solid containing 10.02 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at around 1740 hours on 11 January this year the defendant was intercepted at the Customs Departure Hall of the Hong Kong Macau Ferry Terminal for customs clearance. 

3.Upon search the cocaine was found inside the defendant’s socks contained in a total of one hundred and twenty-nine re-sealable plastic bags. 

4.Under caution the defendant, inter alia, stated that he was asked to take the cocaine to Macau; on arrival in Macau he was to wait for further instructions and that he was to receive a reward of $3,000.

5.The defendant was also found in possession of one mobile phone; HK$239 and a ferry ticket to Macau.   

6.The estimated street value of the cocaine was around $10,240.44.

Mitigation

7.In passing sentence, I have carefully considered the written and oral submissions of Mr Wong, including that the defendant aged 29, lives with his father and has worked in various jobs, most recently as a driver[2]. 

8.Mr Wong has submitted three mitigation letters from the defendant, his father and Mr Tang, the defendant’s employer in 2018.  The defendant says he is determined to reform himself so he can continue to look after his father and grandparents. 

9.The defendant’s father and Mr Tang, who are both in court today to show their support for the defendant, feel that the defendant is remorseful and ask for leniency on his behalf.  Mr Tang says that on release from prison he will welcome back the defendant to work in his company again.

10.I take into account the defendant has no similar conviction for trafficking in a dangerous drug.  The defendant does however have previous convictions including money laundering in 2010 for which he was sentenced to a Drug Addiction Treatment Centre and for possession of equipment fit and intend for taking dangerous drugs in 2017 for which he was sentenced to 3 weeks’ imprisonment. 

Guidelines

11.The courts have equated for sentencing purposes cocaine with heroin[3].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[4].  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes falls within the range of 5-8 years’ imprisonment. 

12.I agree with Mr Wong that a starting point of 5 years’ imprisonment is appropriate for trafficking in 10.02 grammes of cocaine. 

International element

13.The exportation of cocaine adds an international element to the offence and is an aggravating feature of sentence. 

14.In HKSAR v Chung Ping Kun the Court of Appeal held that as a broad guideline an enhancement of 6 months was appropriate for trafficking in up to 250 grammes of ice, heroin and cocaine[5].

15.In HKSAR v Choi Chun Wo, the Court of Appeal stated:[6]

“However, clearly at the lower end of the scale, a sentencing court must ensure that the level of enhancement is just and proportionate in the circumstances of the case, bearing in mind that such enhancement must still be of sufficient length to act as a deterrent”.

16.The court in HKSAR v Choi Chun Wo held that an enhancement of 3 months was appropriate for importing into Hong Kong 5.26 grammes of ice. 

17.I am satisfied for exporting 10.02 grammes of cocaine to Macau the starting point should also be enhanced by 3 months to 5 years and 3 months’ imprisonment.

18.Under caution the defendant also said that the cocaine was for self-consumption.  Mr Wong confirms that no claim for self-consumption is asserted[7].   

19.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 6 months’ imprisonment.