HKSAR v. Mak Chun Wah

HCCC 283/2023

[2024] HKCFI 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 283 OF 2023

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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 to one count of unlawfully trafficking in a dangerous drugs on 18 April 2022, at Room 1, Flat 12A, 6^th Floor, Kiu Fung Mansion, 18 Austin Avenue, Tsim Sha Tsui, Kowloon - I will refer to this as “the Room”, involving 287 grammes of a solid containing 236.8 grammes of ketamine.

Summary of Facts

At 1.50 am on 18 April 2022, the defendant was intercepted by police officers at Kimberley Street, Tsim Sha Tsui. The defendant could not produce his identity card and said that he left it at home. With the defendant’s consent, the police officers escorted the defendant back to his home, that is, the Room. The defendant and the police officers then entered the Room with the defendant’s key cards.

Inside the Room, a paper box and the defendant’s identity card was placed on the top of a bedside cabinet. The paper box contained three large resealable bags which further contained 391 small transparent resealable plastic bags containing 287 grammes of a solid containing 236.8 grammes of ketamine. At the material time, the street value of the 236.8 grammes of ketamine was HK$129,437. In a compartment of the cabinet, two electronic scales and a plastic bag containing many small empty resealable plastic bags were also found.

Upon arrest and under caution at the scene, the defendant said that he intended to sell the ‘K Jai’ to amusement premises after the pandemic to earn living expenses.

In a subsequent video-recorded interview, the defendant admitted under caution that:

(i)  When he said “amusement premises” under caution at the scene, he was referring to bars and disco premises;

(ii)  He bought a bag of ketamine at HK$50,000 from one ‘Ah Keung’ at Kimberley Street on a night in December 2021. He then divided the ketamine bought from Ah Keung into small bags with 0.7 grammes of ketamine for each pack, and he intended to sell them after the pandemic;

(iii)  The electronic scales were for weighing and dividing the drugs, and the empty small resealable bags were reserve supplies; and

(iv)  He rented the Room since May 2020 as his own residence, he never gave his key card to the Room to anyone, and after his purchase of ketamine from Ah Keung, no one else had visited the Room.

The defendant’s DNA was found on the opening flaps of the small resealable plastic bags containing the ketamine, as well as on the opening flaps of two out of the three aforementioned large resealable bags.

The landlord of the Room confirmed that the defendant rented the Room since May 2020 for two years, and the defendant was given two key cards to the Room.

The defendant admitted that at the material time, he possessed the ketamine for the purposes of unlawful trafficking.

The Background of the Defendant

The defendant is now aged 42. He was educated up to Form 2. He worked in the transportation and food industries from 2000 to 2017, and has become unemployed in 2017. He has been using drugs for one year at the time of the arrest, and he suffers from diabetes and high blood pressure. He is single, and used to live with his mother, elder brother, younger brother, and younger sister in Sha Tin. It was submitted that the defendant’s father had been absent from the family since about 30 years ago. The defendant suffered from familial and financial instability, which deprived the defendant of a nurturing environment and adequate educational opportunities.

I have also been provided with a letter from the defendant. The defendant said that he has reflected upon his transgressions and regretted doing what he did. The defendant stated that he is genuinely remorseful and felt shameful about the impact that his behaviour has caused to his elderly mother.

Consideration of Sentence

The sentencing approach in trafficking cases was set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I therefore follow the six-step sentencing approach in Yusuph.

The first step is to identify the relevant guideline band or bracket applicable to the quantity of drugs concerned. Following Secretary for Justice v Hii Siew Cheng [2008] HKCA 197, for quantities of 50 to 300 grammes of ketamine, the sentencing band is 6 to 9 years’ imprisonment.

On a strict arithmetic calculation, trafficking in 236.8 grammes of ketamine, yields a proper starting point of 8 years and 2 months’ imprisonment after rounding down. As stated in Yusuph at paragraph 59, this type of guideline starting point is based upon a defendant’s role as a courier or a storekeeper.

In respect of the defendant’s role and culpability, Mr Tse, senior counsel, acting for the defendant, submitted that the defendant was merely a storekeeper, hence belonging to the lowest category of culpability, and that although the defendant admitted that he intended to sell them to amusement premises, he might not have ended up doing so.

However, given the defendant’s own admission that he purchased the drugs himself, the fact that he had already repackaged the drugs into 391 small resealable plastic bags, and that he intended to sell them to others, this, in my judgment, places his culpability beyond a mere storekeeper who is merely acting on the instructions of others.

As a direct trafficker, or at least an intended one, his culpability is more serious than that of a mere courier or storekeeper who is merely acting on instructions of others - see Yusuph at paragraph 61 to 64. I would therefore increase the notional starting point by 6 months to reflect the defendant’s role, leading to a starting point of 8 years 8 months’ imprisonment.

The defendant has four previous convictions, but none of them relate to dangerous drugs. As such, his previous convictions do not require any further enhancement.

The fifth step is to consider all mitigating factors simultaneously when assessing the overall discount from the notional sentence, bearing in mind that personal circumstances for this offence generally count for little. I have to bear in mind the observations of the Court of Appeal in both HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32 and Yusuph at paragraph 44; where the Court of Appeal stressed the seriousness of drug trafficking and the problems that it brings to families and communities. Accordingly, the defendant’s personal circumstances do not constitute mitigating factors for the purposes of the fifth step.

The main mitigating factor in this case is the defendant’s guilty plea. He is entitled to a one-third discount off the starting point which brings the sentence to 5 years and 9 months’ imprisonment after rounding down.

Defendant, please stand up. I now sentence you to 5 years and 9 months’ imprisonment.