HKSAR v. MAK SUI FAI

DCCC 397/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 397 OF 2013

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REASONS FOR SENTENCE

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1.  Defendant, you appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of offence aver that you:-

“...on the 4th day of February, 2013, outside Ground Floor, No. 36 Shantung Street, Mongkok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 32.88 grammes of a powder containing 24.54 grammes of ketamine.”

Facts

3.  The facts of this case is simple enough.  This is a stop-and-search case.  According to the Summary of Facts which you have admitted, at about 0212 hours on 4 February 2013, a policeman patrolled to the junction of Shantung Street and Portland Street, Mongkok where he spotted you as you were acting suspiciously.  You used your right hand to put something into your right rear pocket of your trousers and you tried to walk away upon seeing the policeman. You were therefore immediately intercepted and searched by a police officer. 

4.  As a result, four plastic bags containing suspected dangerous drugs (Exhibit 1) were found in the right rear pocket of your trousers.  You were immediately arrested and cautioned, and you admitted that Exhibit 1 contained dangerous drugs and that you purchased it from an unknown person for HK$1,500. The drugs were later sent to the government chemist for analysis and they confirmed that the four plastic bags were containing quantities of the ketamine as stated in the present charge. 

5.  At the time of arrest, you only had with you HK$61 and the police estimated that the street value of Exhibit 1 would be about HK$4,044.

The criminal records and the background of the defendant

6.  You had appeared in the court in the past for two times: the first time in 2008 and the last time was in 2010. The first appearance involved two charges: one “wounding” or “inflicting grievous bodily harm” and one “claiming to be a member of a triad society” for which you were dealt with in the Magistracy Court and was sentenced leniently to a probation of 18 months, both charges to be run concurrently. 

7.  Unfortunately, you did not mend your way and learn the lesson.  Two years later in 2010, you were convicted of another two charges of “trafficking in dangerous drugs” here in the District Court and for which you were separately sentenced to 18 months and 4 years’ imprisonment, both charges to be run concurrently and therefore a total sentence of 4 years imprisonment.  You were only discharged on 28 July 2012 last year. 

8.  You only had a Form 3 education level.  This morning, your counsel, Ms Tsang, informed the court that you had an 8-year-old child who was born when you were cohabitating with your girlfriend.  The girlfriend, however, left you and the child about six years ago when the child was only 2 years old.  I was told that your son was now being taken care of by your mother.  You did not have a good relationship with your other members of the family.  You had no contact with your father and other siblings and I was told that when you were employed, you still contributed about half of the income in the sum of $4,000 to your mother towards supporting your son.

9.  After you were discharged from prison, you had worked briefly as a bartender earning an income of about HK$8,000 but due to the irregular working hours, you had left the employment and you had become unemployed for about half a year before you were convicted of the present offence. 

Mitigations

10.  Your counsel, Ms Tsang, has told me that you are now very remorseful and you have pleaded guilty and you asked for leniency.  The reason why you committed the present offence was because you have not really kicked your drug habits even after you have served a lengthy sentence.  You committed the present offence purely because of economic reasons to feed your drug habit and also to earn your living expenses. 

11.  Through your counsel, you vow that you will kick the habit of taking drugs after serving your time in the prison.

Sentencing considerations

12.  Trafficking in dangerous drug is of course a very serious offence. Anyone who committed this offence and was convicted in the court in Hong Kong would be expected to be dealt with severely.  You should know better because only about three years ago, you had already been dealt with in the District Court by a sentence of 4 years’ imprisonment already.

13.  This offence was committed only a few months after you were discharged from the prison and this is already your second time of committing a similar offence.  I could have enhanced the sentence and increased the sentence because of this.  However, in the end, I consider that this is only your second time and after consideration, especially because this is a plea of guilty, I am not going to enhance the sentence this time.  By this, you should consider yourself very lucky and you should consider that the court has given you a chance here.

14.  Defendant, you are 26 years of age.  You are young as described by your counsel but you are by no mean extremely young.  You have life experience.  You have worked before and you cannot be compared with those youngsters who are only 16 or 17 years of age.  You are a father of a son who is now 8 years old and you should know for the last 8 years how many times you have spent with your son.  If you go on committing crimes like this, I am sure you would only end up in lengthy incarceration in prison.  All your family members would turn their back against you and not to mention your son who has no emotional attachment to you whatsoever for the simple fact that you have not discharged your responsibility as his father at all.

15.  Today, I am going to apply the guideline of sentencing the ketamine in your case.  Ketamine, as you know, is a very popular dangerous drug which is commonly abused by youngsters in Hong Kong.   

16.  In the case of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, the sentencing guideline for ketamine involving 10 to 50 grammes is said to be 4 to 6 years’ imprisonment.  

17.  The present case involved 24.54 grammes of ketamine.  Applying the guideline, the starting point should be 4 years and 9 months.  You pleaded guilty and for which you would receive a one-third discount which is, I reckon, the only effective mitigation.

18.  After the reduction, I will sentence you this time to 38 months’ imprisonment.  From now on, if you were found to commit any trafficking in dangerous drugs case in the future, you would be regarded as a repeated offender and you could expect that any sentence that you would receive will only be enhanced further by the judge.