HKSAR v. Mak Ka Wing

DCCC 387/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 387 OF 2013

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.On 22 February this year, the defendant was caught red-handed by the police in possession of three plastic bags containing a total of 27 smaller plastic bags containing ketamine.  The Government Chemist confirmed that the bags contained 44.30 grammes of a solid containing a total of 36.56 grammes of ketamine.  The street value of the exhibit was estimated to be $4,350-odd.  Defendant has pleaded guilty to trafficking this quantity of dangerous drugs. 

3.I have been told the defendant has one previous conviction, that is possession of dangerous drugs and in November 2009 he was sentenced to probation for 15 months.  He obviously breached his probation and in June 2010, for a breach of probation order charge his probation was extended. 

4.I on the last occasion, due to his age, adjourned for a Training Centre and Drug Addiction Treatment Centre report.  I do not intend to repeat the details of the report but they give me a full picture of the defendant’s background.  The Training Centre report will not accept the defendant for Training Centre because the medical officer is of the view he is a drug‑dependant.  It follows, therefore, that Drug Addiction Treatment Centre would be suitable and there is a place available for him.  I have also on the previous occasion been handed two letters, one from Operation Dawn Drug Rehabilitation Centre and the other from a Hong Kong Christian Kun Sun Association Limited.  Both authors of the letter saw the defendant personally and believe he is sincere in his remorse.  Operation Dawn is willing to accept the defendant into its programme which would comprise of a 12 month stay at its rehabilitation centre in Sai Kung.  The only way that could be implemented is by way of a Probation Order.

5.Having read the report and heard mitigation, I accept the defendant has had a tough background.  He has really since a very young age had no family life, love or support.  His mother has written a letter on his behalf explaining what happened to their family when he was young.  She asks the court for leniency.  She believes her son when he says he will reform.  I have some sympathy for the defendant but probation is not an appropriate sentence for this offence and this quantity of drugs.  Probation has been tried before, the defendant has been given a chance.  When that Probation Order came to an end, not only did he relapse into taking ketamine, he started to dabble with Ice and cocaine and he readily admits that he engaged in drug trafficking activities to finance himself and his drug habit.

6.I also have received two letters from the defendant himself and he expresses real remorse and I hope he does truly mean what he says and will turn over a new leaf because if he does not, he will be in and out of institutions all his life.  It will be a waste of his life.  What I am trying to say is that it is not too late to start afresh when he is released from this sentence, especially if his family members still support him.

7.I have to consider the authority of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC323.  This authority sets out guidelines where trafficking ketamine is concerned and the appropriate guideline in this case is where 10 to 50 grammes is trafficked an appropriate starting point would be between 4 to 6 years.  Mathematically speaking, the court should consider a starting point of over 5 years.

8.Defendant, stand up.  I do take into account mitigation put forward, the facts of this case, that it is a first offence for trafficking in dangerous drugs, the defendant’s age, his remorse and his plea. I will take a slightly less starting point than the guidelines suggest because of the factors I take into account.  I take a starting point of 4 years and 3 months.

9.Defendant is entitled to a discount of one-third for his plea.  After this discount, the defendant is sentenced to 2 years and 10 months’ imprisonment.