HKSAR v. Mak Chi Fung

HCCC 399/2023

[2025] HKCFI 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 399 OF 2023

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REASONS FOR SENTENCE

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INTRODUCTION

1.Defendant pleaded guilty in the Eastern Magistrates’ Court on 27 November 2023 to a single charge of trafficking in a dangerous drug.  He was committed for sentence to the Court of First Instance.

2.The subject-matter of the charge involves 94.645 kg of herbal cannabis.

3.This morning, he appeared before me for sentence, having confirmed his plea and the admission of the summary of facts.

FACTS

4.It is a classic stop and search case.  I shall adopt the summary of facts which was admitted and I do not intend to repeat here.  In summary, Defendant was found inside a vehicle where the police found 190 plastic packets containing the said herbal cannabis and he had admitted under caution that this batch of cannabis belonged to him and he intended to sell them to the others.

BACKGROUND AND CRIMINAL RECORDS

5.Defendant was born on 19 October 1972 in Hong Kong.  He is now 52 years of age.  At the time of the offences in May 2022, Defendant was 49 years old.  Defendant was educated up to Secondary 2 level in Hong Kong.  Previously, he worked as a construction worker.  Defendant is still single and lived in Tin Shui Wai with his father, mother and younger brother.

6.For his past criminal records, he was convicted of a total of 28 charges in 18 occasions from 1988 to 2018.  Of which, 16 convictions are drug-related, with most of them are charges in relation to possession of dangerous drugs.

7.In particular, he has 5 convictions of trafficking in dangerous drugs on 2 occasions.  In 2013, he was convicted of 3 counts of trafficking in dangerous drugs with sentences of 2 months concurrent or consecutive.  In 2016, on another occasion, he was convicted of (i)  one count of Cultivation of Cannabis Plant and sentenced to 14 months; and (ii)  two counts of trafficking in dangerous drugs and sentenced to 2 months imprisonment concurrent with the cultivation charge.  It was noted that all these convictions are more than 8 years from now.

8.His last conviction is a charge of s.19 wounding entered in 2018, for which he was sentenced to 2 months.

CONSIDERATION OF SENTENCE

9.In sentencing the defendant, I shall follow the six-steps approach as mentioned in case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

The first step – gravity of the offence

10.The first step is to assess the gravity of the offence with reference to the type and quantity of the drug involved.  The present case involves a total of 94,645 grammes herbal cannabis. 

11.As submitted by Mr. Lau, the defendant committed the present offence in May 2022, before the new sentencing guideline for cannabis was set down in HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329.  The sentencing guideline applicable here is therefore the one in R v Tuen Shui Ming and Another, CAAR 12/1994. 

12.According to Tuen Shui Ming, the suggested tariff for trafficking over 9,000 grammes of cannabis resin is 4 years and upwards.  There is no guideline for amounts of over 9,000 grammes.  It was also stated in Tuen Shui Ming that a discount could be given to persons trafficking in herbal cannabis, which was deemed less potent compared to cannabis resin at the time, unless the amounts of herbal cannabis involved are very large.  The 94,645 grammes of herbal cannabis involved in the present case are indeed of a very large amount, and therefore no such discount should be given.

13.In his written submission, Mr. Lau referred me to the case of HKSAR v Wong Kin Hung [2023] HKCFI 1907, in which the Tuen Shui Ming guideline applied because the offence was committed before the new guideline was set down.  In that case, the learned sentencing judge was of the view that a starting point of 9 years was appropriate for trafficking 109,355 grammes of herbal cannabis.  After arriving at this starting point, he noted, in my view somewhat only in passing, that the 9-year starting point he adopted was approximately 22% lower compared to the notional starting point of 11 years that would have applied under the new guideline for such a quantity.

14.Based on this comparison, Mr. Lau now submits that, had the new guideline been applied in the present case, the 94,645 grammes of herbal cannabis involved would have attracted a starting point of over 120 months.  He then submits that I should perhaps apply a similar discount of 22% or 25% as in Wong Kin Hung and adopt a starting point of around 91 or 95 months for the present offence.

15.With respect, Wong Kin Hung was just a sentencing exercise adopted by an individual sentencer in High Court.  It was no more than a consideration fit for the facts of that particular case, and certainly the learned sentencing judge in that case was not trying to establish a sort of “converter” or a “ratio” between the sentences imposed under the two sets of guidelines.  Rather, he was simply making a comparison, as he had stated in §32 of his judgment.

16.As such, I do not consider such an approach appropriate to be applied in the present case.

17.Mr. Lau has also referred me to the case of Attorney General v So Chin Chiu [1994] 1 HKCLR 106.  There, the Court of Appeal upheld a starting point of 8 years’ imprisonment for trafficking in 93,260 grammes of herbal cannabis, an amount akin to that in the present case.

18.I am mindful that the guideline applied in So Chin Chiu was the one set down in Attorney General v Chan Chi Man [1987] HKLR 221, a pre-Tuen Shui Ming case.  However, the Court of Appeal in Tuen Shui Ming stated at §18 that there was no need to recast the Chan Chi Man guideline.  Instead, it simply deleted the lower bands in the Chan Chi Man guideline and replaced them with the “up to 2,000 grammes” band, which is not relevant in this case.  In my view, the two sets of guidelines are materially the same for the present purposes, with the “over 9,000 grammes” bands in both sets starting at 4 years.  Therefore, I consider the case of So Chin Chiu, which involves a similar quantity of herbal cannabis as the present case, helpful in determining the starting point for this case. 

19.In the end, considering the above and applying the Tuen Shui Ming guideline in the present case, I consider a starting point of 96 months (or 8 years) of imprisonment appropriate for the 94,645 grammes of herbal cannabis here.

The second and third steps – role and culpability & the relevant band defendant comes

20.The second step is to assess the role and culpability of the defendant based upon the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the defendant comes, bearing in mind that it may, in appropriate circumstances, be necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the defendant. 

21.The assessment made in the second step is relevant in determining where the defendant falls within or outside the band.

22.The Court of Appeal reaffirmed that the bands are for the least culpable of drug traffickers.  As was held in the Herry Jane Yusuph at §59, and I quote,

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

23.As acknowledged by Mr. Lau, the Defendant’s role in the present case was not limited to that of a courier or storekeeper.  He admitted in the VRI that he purchased the cannabis buds from his friend in bulk purchase and an enhancement of sentence is therefore required for his heightened culpability.  In my judgment, I consider him to fall under the category of an “actual or direct trafficker”, which is described in Herry Jane Yusuph at §61 as someone who is involved in the actual selling of dangerous drugs to the public. 

24.According to the Summary of Facts, the Defendant admitted under caution that he bought 190 packets of cannabis buds, which he believed originated from Canada, from a friend in April 2022.  He then used his private vehicle as a “warehouse” by placing all the cannabis buds inside it.  He separated three different species of cannabis buds by spraying the words “RC”, “SP”, and “WC” on the bags that stored the sealed plastic packets containing the herbal cannabis.  He would then let the customer try out some of the cannabis buds, and then the customer would decide which species of cannabis buds to buy. 

25.He has also devised a somewhat disciplined plan to wait for cannabis bud buyers on a platform at Long Ping Estate every day between 2 o’clock and 6 o’clock.  When the buyer pays him cash for the cannabis buds, he would go to the car park to fetch them.

26.He also admitted that the last time he bought cannabis buds from his friend was about three months ago before he was arrested.  At that time, he bought around 30,000 grammes of cannabis buds.  He sold them for a profit of approximately HK$280,000 to HK$290,000 and had already spent all the money. 

27.Mr. Lau submits in his written submission that the present case concerns a simple, non-sophisticated one-man operation involving only the Defendant, who did not hire other persons to deal with or deliver the cannabis.

28.Before determining an appropriate enhancement in the present case, I have referred to cases involving sentence enhancements based on the defendant’s more culpable role, while being mindful that each case depends on its own facts.

29.In HKSAR v Islam Azharul [2020] 1 HKLRD 644, Zervos JA considered an enhancement of six months’ imprisonment appropriate for a defendant who was involved in the packaging and dissemination of dangerous drugs by renting a room to store them.  He was also in possession of over 90 bags and packets of drugs at the time of his arrest and was found with a knife bearing traces of the drugs, as well as an electronic scale.  In HKSAR v Leung Chun-him [2023] HKCFI 2648, and in HKSAR v Leung Choi-ying, Cherry and Another [2024] HKCFI 72, I followed the same consideration and imposed an enhancement of six months’ imprisonment in both cases.

30.Considering the Defendant’s involvement in the present case, I consider that a similar six-month enhancement, however, is not sufficient to reflect the heightened culpability.  In addition to being heavily involved in the storage, packaging, and dissemination of the dangerous drugs, which are the common thread linking the cases mentioned above, the Defendant also actively procured cannabis buds from his friends, which he believed were imported from overseas, for resale at a profit. 

31.Furthermore, unlike the defendants in the above cases who dealt in dangerous drugs on behalf of others, the Defendant in the present case dealt in herbal cannabis on his own behalf, running his own trafficking business of reselling cannabis buds. His plan to develop this business was well-structured, involving his search for customers on a platform at Long Ping Estate every afternoon, and the preparation of samples of three different strains of cannabis buds for his customers to try before deciding to purchase.  In fact, he also admitted to making a considerably huge profit of approximately HK$280,000 to HK$290,000 from his dealings in dangerous drugs shortly before the present offence.

32.As such, in light of the facts of the present case, I consider the Defendant’s role as an actual trafficker would justify an enhancement of 9 months’ imprisonment in order to reflect his culpability.  The sentence would therefore be increased to 105 months (or 8 years and 9 months) of imprisonment.

The fourth step – aggravating factors

33.The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance the starting point.

34.According to the Defendant’s criminal record, he has 18 previous conviction records, involving 28 charges, 5 of which were for trafficking in dangerous drugs between 2013 and 2016, and 7 were for possession of dangerous drugs between 1993 and 2016.  He was also convicted of the offence of cultivating cannabis plant in 2016.  Before the present offence, he was last convicted of wounding or inflicting grievous bodily harm and was sentenced to 2 months’ imprisonment in June 2018.

35.Looking at these appalling conviction records, I consider the Defendant a persistent offender. According to the well-known case of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, his sentence should be further enhanced to serve as a deterrent on the defendant and also for the protection of the public.

36.Mr. Lau, in his written submissions, referred me to the case of HKSAR v Har Tsz Yui [2020] 1 HKLRD 307 and reminded me of the factors to be considered in assessing the enhancement of a sentence for this aggravating factor.  These factors include the nature and seriousness of the offence, the extent of the defendant’s criminal record, and the need for personal and public deterrence. I have considered all these factors when assessing the appropriate enhancement.

37.Mr. Lau also referred to me two other cases, namely HKSAR v Ng Kam Sum, DCCC 641/2014, in which a three-month enhancement was considered appropriate for a particular defendant, and HKSAR v Chiu Ka-hing [2024] HKCFI 148, in which a two-month enhancement was considered appropriate for another particular defendant.  By comparing these cases to the present one, Mr. Lau then invited me to impose a short enhancement of 2 months for the Defendant here for being a persistent offender.

38.With respect, I do not consider such comparison helpful.  When considering the enhancement to be imposed on a particular recidivist, as stated by the Court of Appeal in Har Tsz Yui at §18, and I quote,

“Because of the myriad of factors which may be present in a particular case, we think that, in this area of sentencing, the amount by which a judge chooses to enhance a sentence for a previous record of similar offences must be one peculiarly within his sentencing discretion, depending on the facts of the case, the nature of the offence, the circumstances of the individual and the need for personal and public deterrence. It is not an automatic exercise, although a previous criminal record of similar offending will cause the Judge to consider whether and to what extent, subject to submissions from the defendant, the sentence might or should be enhanced.” (emphasis added)

39.The level of enhancement must depend on a number of factors peculiar to the particular defendant and the offence he has committed.  Each case will depend on its own facts, and the circumstances of the defendants and the offences in different cases all differ from one another.  It is therefore not appropriate for me to compare the enhancements imposed on different defendants, but rather to focus on assessing the Har Tsz Yui factors stated above for this particular Defendant in this particular case.

40.In considering the appropriate enhancement in the present case, in addition to the Defendant’s appalling previous history of offences, I have also considered the fact that the Defendant stated under caution that he had chosen to “return to” selling cannabis buds due to a lack of construction work caused by the pandemic.  It is clear that despite the five previous convictions for the same trafficking offence, the defendant still had not learnt his lesson and consciously chose to “return to” this unlawful and evil business of trafficking in dangerous drugs instead of pursuing some other lawful means of making money when his livelihood was affected which was not uncommon.

41.Additionally, I have considered the points put forward by Mr. Lau, including that the Defendant did not commit the offence shortly after his release from prison, and the relatively light sentences imposed on him in his previous drug-related convictions.  However, this simply reinforces the view that the Defendant had scaled up his drug trafficking operation in the present offence due to the inadequate deterrent effect the previous sentences had on him.

42.As such, I would have thought that a 6-month increase would be appropriate in his circumstances.  I hope this enhancement can serve as a sufficient deterrence to the Defendant and he should know that a repeated offender like him will no doubt be severely punished by the court.  The starting point will thus be increased to 111 months (or 9 years and 3 months) of imprisonment.

The fifth step – mitigating factors

43.The fifth step is to consider all mitigating factors.  As correctly submitted by Mr. Lau, the key mitigating factor in the present case is the Defendant’s timely and early plea at the committal stage.  Apart from that, Mr. Lau submits that the Defendant committed the present offence due to a lack of construction work during the pandemic, and that he is now remorseful and undertakes to stay away from crime in the future.

44.It is trite that the Court can never accept economic reasons for committing crimes. Furthermore, as the Court of Appeal made clear in Herry Jane Yusuph at §73, in cases of trafficking in dangerous drugs, personal and family circumstances will count for little unless they are exceptional.  There is nothing in the paper to demonstrate that there is anything exceptional warranting further mitigation.

45.Therefore, I will not reduce the sentence further, apart from the one-third discount given for the Defendant’s timely and early plea.  After applying the discount, the Defendant’s sentence is reduced from 111 months to 74 months (or 6 years and 2 months).

The sixth step – fair, just and balanced sentence

46.The sixth and final step is to stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. 

47.In my judgment, in light of the above and the fact that the offence he committed is serious, and also the role he played, I have no doubt that the final sentence of 6 years and 2 months’ sentence is fair, just, and balanced in the circumstances.

Mr. LEE Cheuk-wing Marcus, SPP of Department of Justice, for the HKSAR

Mr. Lau Kai-yin Roy, instructed by T.H. Wong & Co., assigned by DLA, for the defendant