HKSAR v. MOK SIU KEE

DCCC1123/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1123 OF 2010

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Reasons for Sentence

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1.  The defendant was convicted upon his guilty pleas of two charges of Trafficking in Dangerous drugs. In sentencing I have considered the whole circumstances of the case, including its nature and facts, nature and quantity of the dangerous drugs concerned, the background of the defendant and mitigation proposed on his behalf.

2.  The facts of the case may be summarised as follows.  At about noon time on 6 July 2010 the defendant was stopped on the street by police officer.  Upon search one transparent resealable plastic bag containing 7.47 grammes of a crystallised solid containing 7.37 grammes of methamphetamine hydrochloride and five foil packets containing a total of 38 tablets containing 0.17 grammes of nimetazepam were found in the purse of the defendant put in the back pocket of his trousers.

3.  Under caution the defendant said the “ice” and the “ng tsai” were for his own consumption.  In a subsequent interview he said he had just bought the drugs from a friend at $4,000 and was going home to consume the drugs. 

4.  At about 8.28 pm on 25 July 2010, the defendant was stopped almost at the same location.  Upon search one plastic bag containing 6.51 grammes of a crystallized solid, containing 6.33 grammes of methamphetamine hydrochloride and 15 empty transparent resealable plastic bags were found in his trousers pocket.

5.  Under caution he said the “ice” was for his own consumption.  In a subsequent interview he said the drugs were just bought from a friend at $2,000.  The resealable bags were for dividing the drugs into small bags so that he would not need to carry a large quantity at one time.

6.  The defendant is 42 years of age.  He is married and has a daughter 8 years old.  He had only received education up to Form 1. Since leaving school he had engaged in jobs like construction site worker and logistic worker.  His last job was one of lorry driver with an average monthly income of about $10,000.  Although his wife is working in a beauty salon the defendant has been the main breadwinner of the family.

7.  Economic problems created tension between the couple and they often quarrelled.  Financial and family problems led to great emotional stress and the defendant foolishly resorted to drugs.  Criminal conviction record of the defendant clearly demonstrates that drug addiction is a major problem of his life.  He was, on 14 occasions, convicted.  Apart from several relatively minor offences, he was convicted seven times for the offence of possession of dangerous drugs. 

8.  The first such conviction took place in 1992 and he was fined.  Six years later in 1998 for the same offence he was fined again.  Then he was sentenced to 8 months’ imprisonment in April 1998 and 16 months’ imprisonment in September 1999.  He was discharged from DATC on 27 January this year.  Within six months he committed the present offences, offences of much more serious nature.

9.  Defence counsel said the defendant had given serious thought and is now very remorseful.  He is determined to turn over a new leaf and shoulder his responsibility in the family.  The defendant himself and a pastor have written to the court pleading for leniency. 

10.  For Charge 1 two types of dangerous drugs were involved.  In consideration I have had regard to cases such as HKSAR v Ho Chak Ming, CACC 316/2009.  The majority of the dangerous drugs which the defendant trafficked in was methamphetamine hydrochloride, commonly known as “ice.”  In AG v Ching Kwok Hung, [1991] 2 HKLR 125 as modified in HKSAR v Capitania Edward F CACC28 [2004], the Court of Appeal suggested tariffs for sentencing of this type of offence and said that a sentence for trafficking in “ice” should range 3 to 7 years’ imprisonment if the narcotic content is up to 10 grammes.  And if the quantity is between 10 to 70 grammes, the sentence would range from 7 years to 10 years’ imprisonment.

11.  Silk VP said in the case of R v Lau Tak Ming [1990] 2 HKLR 370 that:

“Within the suggested bands, factors which the court may take into account included the following. The profit which may reasonably be expected to be derived, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender, his previous history of narcotic offences and matters of mitigation.”

12.  Having considered the whole circumstances, I see no reason to depart from the tariff.  Immediate custodial sentences are inevitable.  For each charge I will adopt a starting point of 5 years.  Despite Charge 1 involves two different types of dangerous drugs the nimetazepam which was in the defendant’s possession is a much less serious drug in terms of potency and was only of a small quantity.  In the circumstances it has little effect on sentence. 

13.  I note Charge 2 was committed by the defendant when he was released after the first arrest.  Notwithstanding that the quantity involved was slightly lower than that involved in Charge 1, I adopt the same starting points to reflect this factor. 

14.  The defendant is entitled to a one-third discount for his guilty plea.  Having considered the whole circumstances, including mitigation submission, I am of the view that this is the extent of discount the defendant is entitled to. 

15.  His family will undoubtedly suffer but this is what the defendant should have thought about when he embarked on commission of the offence and worse still, not only for once.  By reason of the matters aforesaid I sentence the defendant to 40 months’ imprisonment for each charge. Although the nature of the offence in the two charges is the same, the defendant committed the offence on two different occasions.  As a matter of principle the two sentences should not be concurrent.  Having considered totality, I order 16 months of the sentence imposed on Charge 2 to run consecutively to that imposed on Charge 1.  For the two offences the defendant is to serve a total sentence of 56 months.