HKSAR v. Mak Tze Ming

HCCC 208/2025

[2026] HKCFI 3683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 208 OF 2025

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REASONS FOR SENTENCE

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INTRODUCTION

1.The Defendant, MAK Tze Ming (“D”), pleaded guilty to one count of Trafficking in Dangerous Drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  I have considered the admitted Summary of Facts, the antecedents of the Defendant, the mitigation submissions filed on his behalf, and the relevant authorities submitted by both parties.  In determining the appropriate sentence, I adopt the structured six-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as modified in HKSAR v Lee Ming Ho [2024] HKCA 150.

BACKGROUND FACTS

2.On 29 August 2023, Police officers including PC 21619 (“PW1”) and PC 18409 (“PW2”) conducted an anti-drug operation and placed Room 2104 (“Room 2104”), King Fai House, Yue Fai Court, 45 Yue Kwong Road, Aberdeen, Hong Kong under observation.

3.At 6:41 pm, D was spotted in Yue Fai Court alone.  The officers approached and intercepted him.  Upon searching D’s person, the officers found, inter alia, the key to Room 2104.

4.D was escorted to Room 2104 for further investigation.  In D’s presence, the officers executed a search warrant against Room 2104.  They entered with the key seized from D.  At that time, no one was inside the flat.  Upon searching Room 2104, PW2 found:

• Inside a cupboard in the living room: a paper box containing 52 plastic bags (containing in purity 40.97g ketamine and 5.28g cocaine).

• Inside a cupboard in the master bedroom: a recycling bag containing:

(i) 2 plastic containers (containing in purity 322g ketamine);

(ii) 11 plastic bags (containing in purity 39.67g cocaine); and

(iii) 3 electronic scales.

5.In total, the Police seized from Room 2104:

• 444.03 grammes of a solid containing 362.97 grammes of ketamine; and

• 54.79 grammes of a solid containing 44.95 grammes of cocaine.

6.PW1 arrested D for Trafficking in Dangerous Drugs.  Under caution upon arrest, D said, “I would sell the dangerous drugs as I wanted to earn money.”  The said admissions were post-recorded in PW1’s Police notebook.  D signed the same to acknowledge the contents.

7.In the subsequent video-recorded interview, under caution for Trafficking in Dangerous Drugs, D said, inter alia, that:

• He worked a part-time job in Tsuen Wan with a monthly salary of HK$20,000;

• He lived in Room 2104 with a monthly rental fee of HK$17,000;

• Room 2104 was rented by his friend.

8.CCTV of King Fai House captured D entering and leaving the building on a number of occasions with a crossbody bag between 24 August 2023 and 29 August 2023.  D was last captured leaving King Fai Court at 6:41 pm on 29 August 2023 prior to his arrest.

THE ANTECEDENTS OF THE DEFENDANT

9.D is a male, aged 33 (born on 23 October 1992).  He is a Hong Kong permanent resident with a Form 5 education level.  He reported working as a chef and a car washer after Form 5, and prior to his arrest, he worked full-time as a technician in a garage earning around HK$20,000 per month.

10.D has a criminal record for drug trafficking:

• On 25 January 2017, he was sentenced for 3 charges of “Trafficking in Dangerous Drugs”, each charge sentenced to 4 months’ imprisonment, to run concurrently.

• On 7 December 2017, he was sentenced to 18 months’ imprisonment for a charge of “Trafficking in Dangerous Drugs”.

11.D was discharged from Pak Sha Wan Correctional Institution on 20 March 2018.

12.D suffers from Thalassemia and requires long-term medication.  He lives alone in Room 2104.

13.D was arrested on 29 August 2023 and has been remanded in custody since 30 August 2023.

DEFENDANT’S BACKGROUND AND MITIGATION

14.In mitigation, Ms. Lisa Remedios, counsel for D submits the following:

• D is now 34 years old. He received education in Hong Kong up to Form 5 level.

• He resided at the premises in Aberdeen from around 2021. Previously, he lived with his parents and younger sister. His father (in his 60s) is working; his mother (in her 50s) works as a messenger; his younger sister (aged 29) is a voice actress.

• D has demonstrated genuine remorse by pleading guilty at the first available opportunity.

• He frankly admitted his liability under caution at the scene, saying he intended to sell the drugs to earn money.

• His early plea has saved considerable court time and resources.

15.I have taken all of these matters into account.  The early plea and admissions are significant mitigating factors.  However, they must be weighed against the very serious nature of the offence, the substantial quantity of drugs involved, and D’s previous convictions for drug trafficking.

SENTENCING CONSIDERATIONS

16.Trafficking in dangerous drugs is a very serious offence.  The Court of Appeal has established the six-step sentencing approach in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 as modified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.  I shall apply that approach.

Step 1: Identify the Relevant Guideline Band

17.The total quantity of drugs seized is:

• 362.97 grammes of ketamine; and

• 44.95 grammes of cocaine.

18.For ketamine, the applicable guideline is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  The tariffs are as follows:

• 1 to 10 grammes: 2 to 4 years

• 10 to 50 grammes: 4 to 6 years

• 50 to 300 grammes: 6 to 9 years

• 300 to 600 grammes: 9 to 12 years

• 600 to 1000 grammes: 12 to 14 years

• Over 1000 grammes: 14 years upward

The quantity of 362.97g of ketamine falls within the 300 to 600 grammes band, which carries a starting point range of 9 to 12 years.

19.For cocaine, the applicable guideline is HKSAR v Huang Ruifang (No 3) [2025] 2 HKLRD 138. The tariffs are as follows:

• Up to 10 grammes: 2 to 5 years

• 10 to 50 grammes: 5 to 8 years

• 50 to 200 grammes: 8 to 12 years

• 200 to 500 grammes: 12 to 16 years

• 500 to 1,500 grammes: 16 to 20 years

• 1,500 to 5,000 grammes: 20 to 24 years

• 5,000 to 15,000 grammes: 24 to 27 years

• 15,000 to 30,000 grammes: 27 to 30 years

• Above 30,000 grammes: Discretionary

The quantity of 44.95g of cocaine falls within the 10 to 50 grammes band, which carries a starting point range of 5 to 8 years.

Step 2: Assess the Defendant’s Role and Culpability

20.D admitted under caution that he would sell the dangerous drugs to earn money.  The presence of electronic scales and the drugs being stored in multiple plastic bags and containers strongly indicate that D was involved in packaging and preparing the drugs for sale.  He was not merely a passive custodian.

21.He is therefore an actual trafficker and, given the presence of packaging equipment, his role is more active and integral than a mere courier or storekeeper.  He was heavily involved in the packaging and dissemination of the dangerous drugs and as a consequence this heightened his culpability.  

Step 3: Identify the Starting Point within the Band

22.The drugs involved are a cocktail of ketamine and cocaine.  In determining the appropriate starting point for such a cocktail, I have had regard to the cross-checking tests (the conversion test, the absurdity test and the ratio test)endorsed in HKSAR v Chan Yuk Leong (CACC 318/2013) and the recent guidance in HKSAR v Yau Kai Fung [2026] HKCA 885 (CACC 208/2024).  The Court of Appeal reconsidered the three check tests in Yau Kai Fung and held that by comparison, the ratio test produces a composite sentence calculated as a straightforward weighted average of the starting points, according to the respective weight ratios of the different drugs and should be preferred to be used only as a cross-check.

23.Using ketamine as the base drug (as it is the larger quantity), a notional starting point for 362.97g of ketamine would be approximately 115.56 months (9 years and 7.5 months).  For 44.95g of cocaine, the notional starting point would be approximately 91.46 months (7 years and 7.5 months).

24.Applying the ratio test (apportioning sentence based on the ratio of each drug):

• Ketamine (362.97g): 88.98% of the total narcotic weight.

• Cocaine (44.95g): 11.02% of the total narcotic weight.

The weighted calculation by the defence yields a starting point of 127.15 months (approximately 10 years and 7 months) which is also agreed by the prosecution.

25.I consider that the ratio test result of 127 months (10 years and 7 months) is a fair reflection of the overall criminality, appropriately weighted to reflect the predominant quantity of ketamine while acknowledging the additional harm of the cocaine.

26.Considering the substantial total quantity of drugs (407.92 grammes narcotic weight), D’s active role as an actual trafficker as opposed to a courier/storekeeper, and the fact that he was in control of premises containing a significant commercial quantity of multiple drugs, I will enhance the starting point by 6 months and adopt a starting point of 133 months’ (11 years and 1 month) imprisonment before considering aggravating and mitigating factors.

Step 4: Aggravating Factors for Enhancement

27.I now consider aggravating factors personal to D that justify enhancing the starting point:

(i) Previous Convictions for Drug Trafficking – D has two previous convictions for trafficking in dangerous drugs (2017). He was sentenced on three counts concurrently (4 months) and separately to 18 months’ imprisonment. His last release from custody was on 20 March 2018. The present offence was committed approximately 5 years and 5 months after his release. This demonstrates a blatant disregard for the law and a failure to learn from past punishment. This is a significant aggravating factor. I shall enhance the sentence by 9 months for his previous convictions.

(ii) Trafficking in Multiple Drug Types – As held in HKSAR v Islam Azharul [2020] 1 HKLRD 644, trafficking in a cocktail of drugs is an aggravating factor as it caters to a wider market. An increase of 6 months is appropriate.

28.Considering these two aggravating factors together and applying the totality principle to ensure the enhancements are not oppressive; I apply a combined enhancement of only 11 months.

29.The notional sentence after trial is therefore:

• 133 months + 11 months = 144 months’ imprisonment.

Step 5: Consider Mitigating Factors for Discount

30.The only mitigating factor is the fact that D pleaded guilty at the earliest opportunity. This has significant utilitarian value and is the most substantial mitigating factor.  He is entitled to a full one-third discount.

31.Applying the one-third discount to the notional sentence of 144 months results in 96 months.

32.The sentence after mitigation is therefore 8 years’ imprisonment.

Step 6: Apply the Totality Principle and Finalise Sentence

33.The sentence derived from the preceding steps is 8 years’ imprisonment.

34.I must stand back and ensure this sentence is fair, just, and proportionate to D’s overall criminality (Herry Jane Yusuph at §79).  The sentence reflects the gravity of trafficking a large commercial quantity of multiple drugs (over 400 grammes narcotic weight), aggravated by his previous convictions for drug trafficking.  It is adequately deterrent and punitive.  It also reflects his timely plea and co-operation after his arrest.

35.The sentence is not crushing nor disproportionate.  It properly reflects the seriousness of the offence and D’s personal circumstances.

CONCLUSION

36.Accordingly, D is sentenced to 8 years’ imprisonment for the single charge of trafficking in dangerous drugs.

Mr. Glen KONG, SPP of Department of Justice, for the HKSAR

Ms. Lisa Remedios, instructed by Wong & Co., assigned by The Director of Legal Aid, for the defendant