HKSAR v. MAK WAI CHUEN

DCCC386/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 386 OF 2011

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HKSAR
v.
Mak Wai-chuen
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Before: H H Judge A. Wong

Date: 26 August 2011 at 3.07 pm

Present: Mr Peter C T Lee, Counsel on fiat, for HKSAR
Mr Luk King-wang, instructed by Messer Yip, Tse & Tang, assigned by the Director of Legal Aid, for the Defendant

Offence: Trafficking in a dangerous drug (販運危險藥物)

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Reasons for Sentence

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1. Defendant, you were convicted upon your guilty plea of one charge of trafficking in a dangerous drug.

2. In sentencing I take into account the whole circumstances of the case, including its nature and facts; in particular, the natureand quantity of the dangerous drugs concerned, your background and mitigation put forward on your behalf by learned defence counsel.

3. The facts of the case are straightforward and may be summarised as follows.

4. Shortly before midnight on the day in question, police officers raided a guest house in Mongkok. You were stopped when you cameout from a room acting furtively. Upon search a transparent resealable plastic bag containing 89 packets containing cocaine wasfound in the right front pocket of your jacket. Inside the room an electronic scale and a pile of empty transparent resealable plasticbags were found.

5. Under caution, you claimed that the dangerous drug was for your own consumption and gave an account of how you obtained the dangerousdrug earlier on the day at a price of $15,000. The total quantity of dangerous drugs found in your possession was 23.25 grammesof a solid containing 18.22 grammes of cocaine. The estimated street value of such quantity of cocaine was about $26,000.

6. I was told that you are now 42 years of age and had separated with your wife. You have one son and three daughters, all adultsexcept the youngest daughter who is now 17 years old and still studying. You do not live with them. I was also told that you hadreceived education up to Form 3 level and were a technician by occupation.

7. Your counsel informed the court that you intended to share without monetary gain the whole of the cocaine found on you with subcontractorswho would assign job to you.

8. This is not the first time you have committed the offence of trafficking in dangerous drug. You were convicted of the same offenceon 21 April 2008 and were sentenced to 14 months’ imprisonment. I was told that you were only discharged on 4 March 2010 havingserved that sentence.

9. I was also told that you were receiving psychiatric treatment. A psychiatric report was therefore obtained. The psychiatrist confirmedthat you are fit to plead. Indeed, this issue was never raised. I learnt from the report that you experienced low mood, poor sleepand hearing nondescript voices. For fleeting suicidal ideation, you were referred to a Psychiatric Centre for treatment. Thereyou received medication and your mental condition is said to have improved. No further prescription is required. The doctor saidyour mental condition is now stable and further psychiatric treatment is not required.

10. Today your counsel told the court that you accept the content of the report and what the court had been told earlier representsthe whole of the mitigation submission.

11. The dangerous drug you trafficked in was cocaine. The total quantity of the narcotic content was 18.22 grammes. In the case AG v Chan Lui Sa [1995] 1 HKCLR 69, the Court of Appeal held that the sentencing guidelines as suggested in R v Lau Tak Ming, [1990] 2 HKLRD 370, was applicable to the cases of trafficking in cocaine.

12. The Court of Appeal indicated in R v Lau Tak Ming that in sentencing after trial where the quantity of the drugs was between 10 grammes and 50 grammes, the sentence should range from5 to 8 years’ imprisonment. In all the circumstances I am of the view that an imprisonment term is warranted. Deterrence is animportant factor in sentencing for this nature of offence.

13. You said you were going to share the cocaine with subcontractors. Sharing is in law a form of trafficking. Even if you had doneit without any monetary gain, by so supplying to the contractors, you clearly had in mind your own interests, which clearly was mainlyeconomic. In any case, the Court of Appeal said in HKSAR v Wong Suet Hau, CACC366/2000 that:

“It is the very fact of supply or, in the case of couriers and storekeepers, making possible the supply to others which in trafficking,whether for commercial gain or not, needs to be dealt with rigorously. Making fine distinctions between different forms of traffickingand the motives behind them will in our view only serve to undermine the core policy of providing consistent levels of sentencingfor traffickers based on the weight of the narcotics being trafficked.”

14. The Court of Appeal further said it has to be borne in mind that the evil behind all aspects of trafficking in drugs which the courtshave a duty to deter is ultimately the supply of dangerous drugs to the public, whether or not this is done for financial gain.

15. Having considered the whole circumstances including mitigation I do not consider there exists sufficient reasons not to follow thetariff.

16. In Lau Tak Ming, the Court of Appeal said that within the suggested bands the court should take into account the following factors: the profit whichmay reasonably be expected; the number of packets; the type of mixture containing the narcotic; the degree of involvement of theoffender and his previous history of narcotics offences.

17. In all the circumstances I consider a starting point of 5½ years appropriate.

18. You pleaded guilty and you are entitled to a one-third discount for this factor. Having considered the whole circumstances, inmy judgement this is the extent of discount you are entitled to.

19. Based on the matters aforesaid, I sentence you to 44 months’ imprisonment.

(A. Wong)
District Judge