HKSAR v. Ma Mang Hon

DCCC 718/2021

[2022] HKDC 703

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 718 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a single charge of trafficking in a dangerous drug. The particulars of the offence are as follows: the defendant had on 21 April 2021 outside No. 77 Lion Rock Road, Kowloon City, unlawfully trafficked in 11.2 grammes of a solid containing 9.72 grammes of ketamine, a dangerous drug.

Facts

2.The summary of facts supporting the charge, which has been admitted by the defendant, says as follows.  On 21 April 2021 at around 1:06 am, the defendant was intercepted by some police officers including PC27694.  The defendant was acting suspiciously at the time.  Upon a body search, a resealable plastic bag with 17 plastic bags inside was found in the defendant’s left back trousers pocket.  These 17 bags were subsequently found to have contained the drugs referred to in the charge.  The drug in question is estimated to have a street value of about HK$6,200.  In addition, cash of HK$39,356.60 and three mobile phones were found on the defendant.  The defendant was arrested.  Under caution at the scene, he admitted that the ketamine was for his own consumption. 

3.At the subsequent video-recorded interview, the defendant claimed that he was a construction worker earning about HK$30,000-40,000 per month.  He bought 20 packets of ketamine on 20 April 2021 at HK$6,000-7,000 outside a pub.  He only had 17 packets with him upon arrest.  He told the officer that he could not recall the whereabouts of the remaining (or missing)  three packets.  And the defendant also said he could not recall how much ketamine he used to consume each time. 

4.The defendant now admits that he had the 17 packets of ketamine with him for the purpose of trafficking.  It goes without saying that that is the basis upon which his guilty plea was entered.

The defendant’s role

5.In mitigation, it is submitted by defence counsel that the defendant himself was a user of dangerous drugs.  In relation to the present offence, it is said that the defendant had originally wanted to buy drugs for his own consumption.  He was, however, told that if he could help store the drugs, he could in return take some drugs for his own consumption.  He agreed to this and it is said by defence counsel on his behalf that the defendant’s role is therefore that of a storekeeper.

6.Now as this may involve the question of whether defendant was having part of the ketamine found on him for his own consumption, defence counsel was asked to clarify.  In reply, it is confirmed by Ms So on the defendant’s behalf that that is not what he meant to say.  Put in a more direct way, it is accepted by Ms So that the ketamine found on the defendant was all for the purpose of trafficking. 

7.In fact, I have some serious reservations about the defendant being simply or only a storekeeper.  Given the time he was intercepted, the amount of cash he had with him at the material time, which was very close to, if not exceeded, what he claimed to have been able to earn each month from his full-time job, and the way the drugs were packaged, I have difficulty in accepting that the defendant was just keeping, or storing as it is said, the drugs for the dealer behind.

8.However, in the absence of some clearer evidence on the issue, and bearing in mind that the defendant has a clear record hitherto, I am prepared to give him the benefit of doubt and stop short of treating him as a pusher. 

The defendant’s personal background

9.He is 28 years old.  I was told by defence counsel that before he was taken into custody for the present offence, he was living with his mother and two younger brothers.  He was a construction site worker, an occupation which he had had for many years after quitting school.  It is said that the defendant was able to earn around HK$30,000 each month from this job prior to the offence.

10.In support of the latter, the defence has put before me a letter from the defendant’s employer, a company called Red M Construction Company Limited, which says that the defendant was under its employment as a painter from March 2014 up to the time of the offence, namely April 2021. 

11.Also, a letter written by the defendant’s mother was submitted to court this afternoon.  Apart from praying for mercy from the court, she also mentioned of a brain tumour she is having which might lead to loss of her eyesight completely in the course of time.

12.In addition, I have just received a letter written by the defendant, in which, he said he would turn over a new leaf from now.

Sentencing principles

13.As defence counsel has acknowledged in her mitigations, for 9.72 grammes of ketamine, the present case would have, according to the oft-cited authority of the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR7/2006, fallen within the sentencing bracket of 2 to 4 years’ imprisonment (which is for trafficking in one to 10 grammes of ketamine).

14.Notwithstanding the doubts I had about the exact role of the defendant in the present offence, I am prepared to err on the lenient side and treat him as either a storekeeper or a courier. 

15.On the above basis, I believe a term of 3 years and 11 months, indeed as suggested by defence counsel in her helpful written submissions, is an appropriate starting point.

16.I accept also what defence counsel said about the absence of any aggravating feature and, on that basis, the 3 years and 11 months term would have also been the notional sentence after trial, a phrase adopted by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph CACC93/2019.

17.The defendant will be given the full one-third discount for his timely indication of the guilty plea, and that will take the sentence down from 3 years and 11 months to around 31½ months’ imprisonment.

18.For the defendant’s previous good character and his mother’s health problem which, again erring on the lenient side, I accept could make the defendant’s incarceration more difficult to bear with, the court will give the defendant a further reduction of around 1½ months, thus making a final sentence of 30 months’ imprisonment.