HKSAR v. MAK CHEUK KIT

DCCC569/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 569 OF 2010

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Reasons for Sentence

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1.  The defendant Mr Mak Cheuk-kit pleads guilty to two offences. The 1st charge is trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars of offence are that the defendant, on the 10th day of February, 2010, at 2nd Floor, No. 134 Tai Wai Tsuen, Yuen Long, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 120.9 grammes of a powder containing 90.36 grammes of ketamine.

2.  The 2nd charge is possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. The particulars of offence are that the defendant, on the 10th day of February 2010, inside a private car bearing registration no. NZ3006, at the car park of Tai Wai Tsuen, Yuen Long, New Territories in Hong Kong, had in his possession a dangerous drug, namely 4.26 grammes of a solid containing 3.7 grammes of cocaine.

Admitted Facts

3.  At about 1956 hours on 10 February 2010, when police officers lay ambush at Tai Wai Tsuen, Yuen Long, the defendant drove a private car registration no. NZ3009, to the scene. He got off the vehicle and went into the 2nd floor of No. 134. This will be referred to as “the unit”. When the defendant came out a few minutes later he was intercepted by the police officers. He tried to flee but was arrested.

4.  Police officers searched the unit under a search warrant and found, inside a drawer in a bedroom, nine plastic bags containing the dangerous drug in Charge 1, which was 120.9 grammes of a powder containing 90.36 grammes of ketamine. On the table in the dining room police officers found two plastic bags, two spoons and an electronic balance, all with traces of ketamine, and a plastic bag containing a pile of plastic bags. Under caution, the defendant said that the dangerous drugs were for his own consumption.

5.  Police officers searched the private car the defendant drove and found 16 plastic bags containing the dangerous drug in Charge 2, which was 4.26 grammes of a solid containing 3.7 grammes of cocaine. Under caution the defendant said that the dangerous drug was for his own consumption.

Criminal Record

6.  The defendant has three previous convictions, of which two were related to dangerous drugs. He was sentenced in Tuen Mun Magistracy to detention centre for an offence of possession of a dangerous drug on 5 October 2010, and he is presently receiving training in the detention centre under this order.

Correctional Service Department Report

7.  The court refers to a Correctional Service Department report obtained in the case of Tuen Mun Magistracy. According to the report, the defendant is aged 19 and was brought up in an intact family. When the defendant was young the parents were busily engaged in work, and the defendant, as well as his two siblings, were looked after by a domestic helper. Though the parents were caring, they failed to provide adequate and effective supervision and guidance to the defendant.

8.  He associated with undesirable peers while studying in Form 2, and dropped out of school without completing Form 4 in 2006. He maintained an unstable working pattern and had worked as a delivery worker and an assistant shipping clerk. He resumed schooling in September 2007 to repeat Form 4, but quitted after two months.

9.  The defendant began to take ketamine in April 2007 and was put on probation twice in 2007 and 2009 respectively for dangerous drug related offences and another offence. Under the probation order he was arranged to live in St Stephen’s Society for 12 months. He completed the probation orders, but he failed to mend himself and reverted to unruly behaviour. He became a triad member, and even began to engage in drug trafficking activities.

10.  According to the report, a medical officer had examined the defendant and found him not to be a drug dependent. The Correctional Service Department officer compiling the report was of the opinion that the defendant was suitable for admission to detention centre.

Mitigation

11.  Counsel representing the defendant points out in mitigation that since the last adjournment of the present case the defendant has been sentenced to detention centre by the Tuen Mun Magistracy, and is now serving the sentence. According to the counsel, the defendant has a supportive family. The defendant’s paternal aunt is a senior hospital manager who finds the defendant to be a good-natured young man.

12.  A letter of mitigation written by the defendant is submitted to the court. The defendant points out in the letter that he was addicted to dangerous drugs due to the influence of undesirable characters. He foolishly committed the present offences for quick money when he found out that his father was in debt. He was remorseful and his mother was in ill health. He asked the court to treat him leniently.

13.  Counsel points out that the defendant was addicted to dangerous drugs when he was aged 16. A further reason for him to offend the law was to get money to satisfy his baneful habit. The cocaine in question was for the defendant’s own consumption, and the car involved belonged to the defendant’s father, while the unit was owned by the defendant’s friend.

14.  Counsel stresses that the defendant pleads guilty as soon as he has received legal advice. The defendant agrees to the contents of the Correctional Service Department report, except that the part about the defendant’s reiteration of his innocence in the magistracy court case in the penultimate paragraph of page 4 of the report is wrong and is withdrawn by the defendant.

15.  Counsel opines that the defendant lacks structure and discipline in life, and detention centre can provide him with training in this regard. According to the counsel, it is not beneficial to the defendant to send him to imprisonment. Counsel asks the court to bear in mind the young age of the defendant and allow him to continue the present training in the detention centre.

Sentence

16.  Trafficking in a dangerous drug is a very serious and socially repugnant offence because it makes dangerous drugs more readily available to the general public, thus resulting in more people being hooked to them. This does not only ruin the life of the drug addict himself, but also causes tremendous harm to his family and society as a whole.

17.  Hong Kong and countries all over the world have spent much efforts and resources in combating dangerous drugs, but without much success. One of the reasons is that there are people like the defendant who are ready to engage in dangerous drug trafficking activities for easy and quick money. In Hong Kong there is an alarming trend that more and more youngsters and students are falling prey to these illicit substances. One reason is that there are young dangerous drug traffickers like the defendant who can easily mingle with these youngsters and students, providing them with the dangerous drugs.

18.  The Court of Appeal has laid down clear sentencing guidelines for the offence of trafficking in a dangerous drug. If the amount of ketamine involved is of 50 grammes to 300 grammes, the normal starting point is 6 to 9 years' imprisonment. The amount of ketamine in the present case is 90.36 grammes. According to these guidelines, the normal starting point is 6½ years' imprisonment. Cocaine is a hard drug similar to heroin. There are ample authorities saying that possession of such a dangerous drug, even for a small amount, the normal sentence is one of 6 to 12 months' imprisonment on a guilty plea. The court has to look at the quantity of the dangerous drugs involved and the degree of the risk of the dangerous drug falling into the hands of other people.

19.  The court bears in mind that a young man under the age of 21 should not be sent to prison unless there is no other alternative way to deal with him. The defendant was 19 years old when he committed the present offences, and he is almost 20 years old now. He is by no means of the extreme youth that calls for special treatment in sentencing. He also has a poor criminal record. Despite chances given by the court, the defendant has failed to mend himself and has kept offending the law with increasing degree of severity.

20.  Having considered all these factors, the court is of the view that the only appropriate and just sentence in the present case is an immediate term of imprisonment. Taking into account the young age of the defendant, the court adopts a starting point of 5½ years' imprisonment for Charge 1. As for Charge 2, the amount of cocaine involved is not of the minimal type. Given the defendant’s character, there was a high latent risk that some of them might fall into the hands of other people. For this charge the court adopts a starting point of 18 months' imprisonment.

21.  Giving credit to the defendant for his guilty pleas, the court sentences the defendant to 3 years 8 months' imprisonment for Charge 1 and 1 year imprisonment for Charge 2. Having considered the nature of the case and the totality principle, the court orders 4 months of the sentence of Charge 2 to run consecutively to that of Charge 1, making a total of 4 years' imprisonment.

22.  The detention centre order the defendant presently serving is, according to law, discharged.