HKSAR v. MA HOI KIT

DCCC 1157/2025

[2026] HKDC 724

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1157 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a single charge of trafficking in a dangerous drug involving quantities of drugs such as cannabis in an herbal form, psilocin, ketamine, ecstasy and the drug MDMB, as described as.

2.  The case arises out of a seizure made by police on 12 February 2025 in City One, Sha Tin, the seizures made at a flat in that premises, and the defendant was the resident of that premises. The drugs were found stored in there and it would appear from the facts that the defendant was a storekeeper of those drugs.

3.  Now the narcotic quantities of the drugs that were found by police are as follows:

- 2,546 grammes of herbal cannabis;

- 0.1 grammes of psilocin, which is a derivative from a mushroom;

- 0.47 grammes of what is described as MDMB-4en-PINACA;

- 23.1 grammes of cannabidiol in a solid form;

- 950.62 grammes of tetrahydrocannabinol for THC, liquid form, then 41.98 grammes in a solid form of the same drug, tetrahydrocannabinol;

- Further, there were 1.34 grammes of ecstasy; and

- 0.71 grammes of ketamine.

Also a scale and disposal gloves were found.

4.  I am told that the street value of the 2,546 grammes of herbal cannabis would be $448,096 in February of 2025.

5.  The defendant was arrested in respect of these drugs and he said that since his girlfriend had got pregnant, he delivered and stored drugs at the flat for a monetary award of some $3,000 a day in order to earn quick money.  The digital scale and a box of disposal gloves were also found in the bedroom of the flat, presumably for measuring out the drugs in question.  That effectively are the facts that the court is dealing with today.

6.  The defendant himself is a man in his early thirties.  He has one previous conviction for possession of dangerous drugs for which he received a sentence of 2 months’ imprisonment but suspended for two years and that was back in 2018.  The defendant has no previous convictions for trafficking in drugs.

7.  The defendant has a somewhat unfortunate background in relation to his relationship with a young lady who had become pregnant by him.  A child was born, it was a boy now aged one.  The mother, I am told, committed suicide so the child is now in the care of the Mother’s Choice Organisation in Bowen Road.  The defendant is apparently not recorded as the father on the Birth Certificate and will need to institute a DNA test and proceedings for custody of the boy if he wishes to take custody.

8.  The defendant’s employment history is that he had run, I am told, a successful Japanese restaurant but the business came to an end after the tsunami in 2012.  Various customers defaulted in paying him.  The defendant after that joined the construction industry and finally has ended up trafficking in dangerous drugs by being a storekeeper of these drugs.

9.  Now turning to the approach to sentencing. The tariffs can be found in the more recent case of HKSAR v Herry Jane Yusuph, CACC 93/2019 where the courts have set out the approach the sentencing court should take and set out a six-step process for a proper sentencing approach. The first step being to identify the relevant sentencing band or applicable to the quantity of drug concerned.  The second step is assessment of role and culpability of the defendant based on the evidence before the court.  The third step is to identify where in the relevant band of guidelines the defendant comes.  The fourth step is to consider any aggravating factors which bear on the notional sentence after trial.  The fifth step is to have regard to any matters of mitigation, bearing in mind that personal circumstances count for little in these kind of cases unless they are exceptional.  The final step is for the Judge to stand back and look at the overall sentence passed in order to ensure it is a fair, just and balanced sentence.

10.  Also relevant to the sentencing approach is the fact that I am dealing here with more than one dangerous drug, that is in fact an aggravating factor in itself but also means the court must decide between taking what is described as the individual approach when appropriate starting point is determined for each type of dangerous drug and they are then combined in an overall starting point prior to any discount; or secondly, the combined approach where a starting point is determined for the most serious type of dangerous drug and is then adjusted upward in light of the quantity of the less serious drug in order to arrive at the ultimate starting point, but no such adjustment is required for the less serious drugs present in insignificant quantity.

11.  Also, where the combined approach is taken, the court must rely on common sense in determining which type of the dangerous drug is regarded as the more serious, hence forming the basis of the starting point.  For example, a certain type of drug although less potent may be present in much larger quantity than the other, which appears to be the case in this case, in which case its quantity will form a basis for the starting point.  On the other hand, if the two types of drugs are present in similar quantities, the quantity of the drug of greater potency will provide the basis for the starting point.  So the court is informed by these two cases as to the approach it must take. 

12.  I will look at the various starting points that have been mandated in respect of these drugs.  The first drug of quantity is the 2,546 grammes of cannabis in herbal form.  Now that has been looked at in the recent case by the Court of Appeal of HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329, where the potency of modern herbal cannabis was broadly comparable to that of cannabis resin and that the form of cannabis described as “THC” can be converted into a quantity of cannabis resin by treating it as being one quarter of the amount.  There is also THC of a solid form and also the, what is described as “cannabinol” to be considered in this case.

13.  When the various conversions are made, it would appear that the amount of cannabis that I am dealing with if treated as cannabis resin would be in the region of some 6,000 grammes of the drug and where there is a presence of some 6,000 grammes of that drug then the starting point for sentence would range between 36 to 48 months.

14.  There is also present other drugs besides cannabis in the various forms that we see set out here.  There is the 0.1 grammes of psilocin.  Again, if that is treated as cannabis it would not materially alter the figure of over 6,000 grammes of cannabis resin, so it is not particularly significant in sentencing in this case.  Similarly, the drug of MDMB, a quantity of 0.47 grammes which can be added to the quantity of ecstasy and ketamine.

15.  The starting point for the drug ketamine and MDMB and ecstasy can be seen as analogies in their sentencing approach would be between, on a quantity of over 2 grammes, would be a sentence of between 2 to 4 years’ imprisonment. 

16.  Taking the combined approach, I have effectively two quantities of drugs to deal with here.  There are the cannabis-base drugs where the starting point would be between 36 and 48 months but on the low side of that guideline, and secondly, the other drugs present where the starting point would be in the region of 2 years’ imprisonment.

17.  What I am going to do in this case is take an overall approach.  I am told that the case of Herry Yusuph sets out that the approach for sentencing in these cases is not a mathematical approach, it is discretionary and the court is trying to achieve a fair result in all the circumstances of the case. 

18.  I bear in mind as far as this defendant is concerned that although he has a drug conviction in 2018, he has no previous convictions for trafficking in a dangerous drug.  He has been a person who has had to deal with considerably difficult circumstances in the past few years and one would not wish to impose a sentence which would be too lengthy.  I bear in mind also that any sentence I impose must be set against the tests that have been set out as the absurdity test, conversion test and the ratio test and I shall bear those in mind in my determination of an appropriate starting point for sentence.

19.  I consider that the appropriate starting point for sentence in this case, adopting the combined approach, would be one of 48 months’ imprisonment or 4 years’ imprisonment.  The defendant is entitled to a full one-third discount on that figure for his plea of guilty which would lead to a sentence of 32 months’ imprisonments on this charge.