HKSAR v. MAK CHUN HIN, BRAIN

DCCC 289/2022

[2023] HKDC 213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 289 OF 2022

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REASONS FOR SENTENCE

The defendant pleaded guilty to a "trafficking" charge (Charge 1)  and a "simple possession" charge (Charge 2). The dangerous drug involved is cocaine.

Summary of Facts

2.  About 5:40 p.m. on 24 November 2021, police officers stopped the defendant for enquiry outside No.6 Ashley Road in Tsim Sha Tsui.

3.  Upon search, the following items were found concealed between the defendant's underpants and trousers[2] :-

(i)  1 larger resealable plastic bag containing 40 smaller resealable plastic bags which contained a total of 6.32 grammes of a solid containing 5.05 grammes of cocaine (collectively E1[3]); and

(ii)  1 larger resealable plastic bag containing 40 smaller resealable plastic bags which contained a total of 6.14 grammes of a solid containing 4.98 grammes of cocaine (collectively E2[4]);

4.  Under caution, the defendant said he bought the cocaine for self-consumption to relieve stress.

5.  The total estimated street value of E1 and E2 was about $10,180.

6.  The defendant now admits that he possessed E1 for the purpose of unlawful trafficking and E2 for self-consumption.

Mitigation & Sentence

7.  The defendant is 24 and single.  He has a clear record.  Defence counsel Ms. Ling informed me that prior to his arrest, the defendant was an electrician apprentice earning about $15,000 per month.  A bundle of mitigation documents (including letters and medical records)  was placed before me; their contents are duly noted.

8.  In mitigation, Ms. Ling submitted that the defendant is the only child and grew up in a single-parent family.  He is very close to his mother.  Ms. Ling explained that the present offences took place in the middle of the pandemic.  The defendant's job was unstable and affected his income.  At the same time, his mother was diagnosed with cancer coupled with a history of depression.  The defendant foolishly resorted to drugs for relief. 

9.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  or having a sick family member is no mitigating factor for committing a crime.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers (even fresh young offenders)  would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

10.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment. 

11.  In Charge 1, the defendant trafficked in 5.05 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 3.5 years.  I adopt a starting point of 3.5 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 28 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 28 months' imprisonment for this charge.

12.  I have borne in mind the principles laid down in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 when determining the proper starting point for Charge 2.

13.  First, for the quantity and nature of the drug involved, I adopt a starting point of 12 months' imprisonment.  Second, E2 was packaged in 40 resealable plastic bags, looking identical to E1 which was meant for trafficking.  I accept that E2 could have been sold to the defendant in that manner and even the prosecution has accepted that E2 was for the defendant's self-consumption, yet E2 is as ready to be trafficked as E1.  I consider the latent risk to be high.  Thus, I would increase the starting point to 18 months.  With the timely guilty plea, I sentence the defendant to 12 months' imprisonment for Charge 2.

14.  Bearing in mind the totality principle, I consider a global starting point of 51 months' imprisonment appropriate for both charges.  With the discount for the timely guilty pleas, the overall sentence is reduced to 34 months.  Hence, I order 6 months in Charge 2 to run consecutive to Charge 1, arriving at a total prison term of 34 months for both charges.