HKSAR v. Mak Tak on

HCCC 13/2021

[2021] HKCFI 2324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 13 OF 2021

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in a dangerous drug, admitted to the summary of facts before a magistrate and was committed to the Court of First Instance for sentence.

2.Particulars of the count are that he on 8 February 2020, at the Customs Arrival Hall, Hong Kong International Airport, unlawfully trafficked in a 6 kg solid which contained 5,970 grammes of the dangerous drug methamphetamine hydrochloride.

Summary of facts

3.The defendant flew into Hong Kong on the offence date at around 11:04pm on flight KA209 that departed from Phnom Penh, Cambodia.  He collected his checked in suitcase and proceeded to the customs arrival hall.  Unknown to the defendant, Customs officers had earlier inspected the suitcase and suspected there were dangerous drugs inside.  The defendant was stopped and the suitcase inspected.

4.Six packs of ‘Barley Porridge’ were found.  They were examined and one tinfoil bag was found in each of the them.  Inside the tinfoil bags were a total of 6 kilogrammes of a crystalline solid containing 5,970 grammes of methamphetamine hydrochloride.

5.The defendant was arrested.  He claimed under caution that he agreed to bring something to Hong Kong for a friend for a $6,000 reward.

6.Immigration movement records revealed that the defendant departed Hong Kong for Phnom Penh on 4 February 2020.

7.The estimated street value of the seized drugs was $3,210,000 as in February 2020.

8.The defendant admitted through the summary of facts that he was unlawfully trafficking in the dangerous drugs seized in this case.

Previous conviction

9.The defendant has previously been convicted of attempting to export prohibited articles when he was fined in 2014.  He was convicted of two charges of attempted fraud in 2015 and was sentenced to 6 months’ imprisonment.  Given the different nature of the offences and the lapse of time, I will not enhance the sentence on the basis of the defendant being a habitual offender.

Background and mitigation

10.The defendant was born in Hong Kong and is 58 years old.  He is divorced and was living alone.  The defendant suffers from diabetes and high blood pressure and requires long term medication.

11.The defendant’s younger sister wrote in mitigation and speaks to the defendant’s remorse and how he has found religion in his life, hoping to do volunteering work after his release to try to give back to society.

12.The defendant himself wrote to tell the court that he committed the offence out of greed and regrets his decision.  He is remorseful and hope to rejoin society after his release with the support of religion, to restart his life.

13.Mr Victor Lee for the defendant recognizes that the range of sentence should be 26 to 30 years according to the case of HKSAR v Tam Yi Chun[1]. He also accepts that the presence of an international element is a possible aggravating factor which may cause the court to enhance the starting point by up to 2 years.

Sentence

14.The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is that of a fine of $5 million and imprisonment for life.

15.Sentences in trafficking cases are structured upon guidelines set by the Court of Appeal.  The tariffs vary according to the nature and quantity of the drugs being trafficked.

16.For methamphetamine hydrochloride, commonly known as ‘ice’, the range of sentence for trafficking in 4,000 to 15,000 grammes of narcotic contents is that of 26 to 30 years’ imprisonment[2].

17.An arithmetic application of the tariff to 5,970 grammes of ‘ice’ would lead to a starting point of 320 months.  This is the starting point I adopt.

International element

18.As mentioned above, it is accepted by the defendant that his sentence would be subject to enhancement if the court finds there being an ‘international element’ in his commission of the offence, and that the enhancement would not be less than 2 years given the quantity of drugs involved[3].

19.What would amount to such an international element has been clarified in later cases[4], where the Court of Appeal drew a distinction between cases of the accused collecting a parcel posted from overseas in Hong Kong for a reward, and cases where the accused had arranged and facilitated the importation of drugs into Hong Kong.

20.The present case involved the defendant flying out of Hong Kong on 4 February and returned just 4 days later carrying the drugs.  According to his statements made under caution, the drugs contained in the 6 packs were placed into the suitcase in his presence when he was in a hotel in Phnom Penh.  The defendant also admitted that he brought the drugs into Hong Kong for a reward.

21.I find that the defendant’s conduct did facilitate in the importation of the drugs into Hong Kong and thus had added to it the aggravating factor of there being an international element.  Bearing in mind the lengthy sentence that the defendant is already facing based on the large quantity of drugs, I find that his sentence should be enhanced by 24 months and no more, taking it to 344 months’ imprisonment.

Final sentence

22.The only mitigating factor is the defendant’s timely plea of guilty, for which he is granted the full one-third discount.  The final sentence after plea is, therefore, 229 month’s imprisonment.

Mr Raymond Chan, SPP of Department of Justice/HKSAR, for the Prosecution

Mr Victor Lee, instructed by Chan & Ho, assigned by Director of Legal Aid, for the Accused