HKSAR v. Mak Wing Ki

HCCC 274/2020

[2021] HKCFI 676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 274 OF 2020

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

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COURT: The defendant pleaded guilty before a magistrate to one charge of trafficking in dangerous drugs and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarised as follows. A woman was intercepted when she was opening a door of a flat. When the police entered the flat together with the woman, the defendant was found inside. A search was then conducted and the following dangerous drugs were found. A total of 178 grammes of a crystalline solid containing 177.9 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’ and 45.4 grammes of a solid containing 39.1 grammes of cocaine were found. Two electronic scales and some resealable plastic bags were also found. The defendant was arrested.

Under caution, she admitted all the drugs belonged to her and they were for sale. In a subsequent video-recorded interview, the defendant admitted she bought the drugs at $12,000 intended for sale. The electronic scales found were for weighing the drug and the resealable plastic bags for packing. She usually sells drugs in Tsim Sha Tsui area.

The court was told that the defendant was 36 years of age at the time of offence. She received education up to Form 3. She was unemployed and had been receiving CSSA. She did not have a clear record. She had been convicted for possession of dangerous drug for three times and subsequent to those convictions she was convicted in October 2010 for two charges of trafficking in dangerous drug and sentenced to a total of 44 months’ imprisonment. In May 2014, for a charge of trafficking in a dangerous drug, she was again sentenced to 44 months’ imprisonment.

In mitigation, learned counsel for the defence Mr Lam stressed that the defendant pleaded guilty at the earliest opportunity. He also said a small part of the ‘Ice’ found was intended for own consumption of the defendant. Mr Lam also informed the court that the defendant has been suffering from malignant lymphoma since July 2016. Medical reports were produced in this regard. There is a bulky hypermetabolic tumour in the anterior mediastinal with smaller lesions in other parts of her body. She has been receiving treatment including chemotherapy. She was under great financial stress and in the circumstances committed the offence out of foolishness.

Mr Lam mentioned a matter which may be relevant to sentencing but has not yet concluded. He asked the court to decide the matter today instead of adjourning the case.

A letter written by the defendant was produced in which she gave an account of her illness. She explained why she resumed abusing drugs again after her discharge from prison. She said she engaged in this illegal exercise mainly because she needed money for her medical treatment. She expressed remorse.

A letter from a pastor was also produced. The pastor said the defendant was remorseful and pleaded leniency on behalf of the defendant.

The defendant trafficked in two types of dangerous drug, ‘Ice’ and cocaine. In this case, ‘Ice’ was the prominent drug both in terms of its potency and quantity. There was 177 grammes of ‘Ice’. The Court of Appeal held in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, that in the case of trafficking in ‘Ice’ where the narcotic content was between 70 and 300 grammes, an imprisonment term of 11 to 15 years should be considered.

There was also a smaller quantity of cocaine, 39 grammes. In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines for trafficking in heroin are applicable to cases of trafficking in cocaine. Following R v Lau Tak Ming [1990] 2 HKLR 370, for that quantity a sentence of 5 to 8 years should be considered. I see no reason in the present case to depart from the tariff.

As the case involved two types of drugs, I follow the approach as stated by the Court of Appeal in HKSAR v Islam Majharul [2020] 3 HKLRD 146. I have also had regard to the Court of Appeal cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013, and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817. I adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test. In the course of the exercise, I have had regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs.

There is yet another aggravating factor which is that the defendant had been convicted twice for trafficking and the last conviction was in relation to cocaine, one of the drugs the defendant dealt with in the present case. After the defendant had been discharged on 6 June 2016, she committed the present offence three years afterwards.

I remind myself that in determining enhancement to a sentence for any aggravating factor, I should ensure that the original starting point should be proportionate to the actual sentence, the degree of enhancement should be in reasonable proportion to the basic sentence, and the total ultimate sentence should not be excessive. Having considered all the circumstances, I adopt a starting point of 13 years and 10 months which includes an enhancement of around 8 months for the said aggravating factors.

The defendant, relying solely on submission of counsel, claimed that a small part of the ‘Ice’ found was intended for her own consumption. In this connection, I have had regard to HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872 and take into account the following matters:

(1)  The drugs were found at the home of the defendant;

(2)  The urine test conducted three days after the defendant’s arrest yielded positive result for amphetamine;

(3)  Previous convictions of the defendant for the possession of dangerous drug;

(4)  The estimated cost of the drug; and

(5)  The means of the defendant.

In all the circumstances, I am prepared to accept that a small quantity of the ‘Ice’ seized would have been intended for own consumption by the defendant.

In consideration, I had to take into account that even for the offence of possession of dangerous drug, a sentence of custodial nature would be imposed having regard to the quantity asserted. Moreover, my assessment is that the latent risk was very high. Having taken into account the above factors and having had regard to the case of HKSAR v Tam Ling Yuen, CACC 159/2015, and the more recent Court of Appeal decision in HKSAR v Yeung Shek Yung, CACC 314/2016, and Cheung Wai Man mentioned earlier, whilst a discount for this reason should normally only be given when a significant proportion of the drug was intended for self-consumption, I am persuaded to give a slight adjustment of 1 month from the starting point.

The defendant pleaded guilty before a magistrate and for this she is entitled a one-third discount from the ultimate starting point of 13 years and 9 months. Having considered everything said on behalf of the defendant, I am persuaded to give her a further discount of 2 months. Having considered the whole circumstances, in my judgment this is the extent of discount the defendant is entitled to in the present case.

Defendant, please stand up. For the reasons I have mentioned I sentence you to an imprisonment term of 9 years.