HKSAR v. Mak Wai Keung

DCCC 116/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 116 OF 2012

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REASONS FOR SENTENCE

1.The defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, namely 8.96 grammes of a mixture containing 6.19 grammes of heroin hydrochloride.

2.The particulars of the offence are that at around 1733 hours on 7 December 2011, two police officers on foot patrol spotted the defendant acting suspiciously at the junction of Shanghai Street and Wing Sing Lane.  They intercepted the defendant for inquiry, and upon search, 40 pellets of dangerous drugs the subject matter of the charge were found inside a resealable transparent plastic bag inside a black plastic bag inside the left pocket of the defendant’s jacket.  He had cash in the sum of HK$3,418.50 in his possession.  The defendant was arrested for the offence of trafficking in a dangerous drug and cautioned.  Under caution he said that the dangerous drugs in question were for his own consumption.  At a video interview under caution later that day, he maintained that the dangerous drugs were for his own consumption and the money found on his person were wages he had earned that he intended to use for buying dangerous drugs for his own consumption.  The dangerous drugs were examined by the Government Chemist and found to be 8.96 grammes of a mixture containing 6.19 grammes of heroin hydrochloride.  At the time of the offence, the retail value of the dangerous drugs in question was estimated to be around HK$7,300.

3.The defendant has 13 previous court appearances with 27 convictions, the last being in 2009.  His criminal record dates back to 1988.  This is his first conviction for trafficking in dangerous drugs.  He has 4 previous convictions for possession of a dangerous drugs, and has been sentenced to the DATC on three occasions in the past.  Although in the antecedent statement it is recorded that he is single, Defence Counsel has submitted that in fact the defendant has been married since 2006, and his wife, who is aged about 40 years, lives in China.  Save for that, no issue is taken in respect of the contents of the antecedent statement.

4.In mitigation, I am told that the defendant is aged 40.  He is a drug addict.  His record discloses that he has been to the DATC on three occasions, the most recent being in 2005.

5.He was educated up to Primary 6 in Hong Kong, and was unemployed at the time of his arrest.  He worked as a construction site worker or casual worker earning $8,000 a month until he became unemployed in October 2011.  He lived with his mother and sister.  His mother has suffered a stroke and is paralysed, and he and his siblings support her.  He contributes HK$2,000 a month to her.

6.The defendant now admits that he was in possession of the drugs in question for trafficking, although in mitigation Counsel for the defendant submitted that a part would be for his own consumption, although even the defendant himself is unable to say how much – perhaps half or less, depending on whether he had buyers for the dangerous drugs.  Counsel for the prosecution accepts that perhaps some of the dangerous drugs could be for the defendant’s own use.  But as Counsel for the prosecution rightly said, it would not be possible to differentiate what would be for self use.

7.As Defence Counsel has rightly said, the appropriate sentence for trafficking in up to 10 grammes of heroin hydrochloride is from 2 to 5 years’ imprisonment, pursuant to Lau Tak Ming [1990] HKLR 370.

8.The sentence follows the quantity of drugs.  That would put the quantity in the defendant’s possession for trafficking at the material time at the higher end of that spectrum, being 6.19 grammes of heroin hydrochloride, and would warrant a starting point of 3 years and 6 months (ie 42 months) imprisonment.

9.In HKSAR v. Chow Chun Sang, CACC 135/2011, Hon Yeung VP, in delivering the judgment of the Court, said :-

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of the discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

10.I have taken into account that the defendant is a drug abuser and that some of those drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs.  I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.  There is a total of 40 pellets – in my view that is quite substantial.  The defendant was unemployed at the material time, and it was because of financial circumstances that he was trafficking the dangerous drugs in question for financial gain.  He has a long criminal history, including for drugs related offences. 

11.Looking at those features of the case, I have decided that the appropriate starting point for this offence is one of 3 years’ imprisonment.

12.The defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.  That is the only mitigation of weight before me.

13.He is therefore sentenced to 2 years’ imprisonment.