HKSAR v. MOK TO LEUNG

HCCC 86/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 86 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Mok To-leung has pleaded guilty before me and has admitted the summary of facts prepared by the prosecution. He has pleaded to the offence of trafficking in a dangerous drug, contrary to 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that Mok To-leung on the 9th day of September 2014 at Yau Ma Tei, Kolwoon in Hong Kong, unlawfully trafficked in a dangerous drug, namely 26.8 grammes of a crystalline solid containing 26 grammes of methamphetamine hydrochloride.

The summary of facts, which he has admitted, reads as follows:

“(1) On 9 September 2014 at about 2.20 am, the defendant was intercepted by PC10198, Cheung Chi‑yuen, at the pavement of Public Square Street and the junction of Temple Street, Kowloon.

(2) At the time of the said interception, PC10198 was on patrol duty together with other police officers.

(3) PC10198 conducted a search on the defendant. PC10198 found tucked inside the defendant’s underpants two resealable plastic bags. Both plastic bags were wrapped in tissue paper. The resealable plastic bags contained a transparent crystalline substance which was subsequently found to be dangerous drugs.

(4) At 2.22 am on 9 September 2014, the defendant was arrested and brought back to Yau Ma Tei Police Station.

(5) At about 4.38 am on 9 September 2014, at Yau Ma Tei Police Station in the presence of the defendant, PC10198 put the two transparent plastic bags and the contents therein into two envelopes, marked A2694911 and A2694912. The packets (the envelopes) were then sealed in the presence of the defendant who signed on the said sealed envelopes.

(6) On 10 September 2014, PC17001 Chung Mei-cheong took the said envelopes and the contents therein to a government laboratory situated at 7th Floor, Ho Man Tin Government Offices, 88 Chung Hau Street, Kowloon, for analysis.

(7) At the said laboratory, government forensic scientist, Dr Chan Tai-wai, David, examined the contents of the two plastic bags in the said sealed envelopes and discovered that the two bags contained 26.8 grammes of a crystalline solid containing 26 grammes of methamphetamine hydrochloride also known as ‘Ice’.

(8) At the time of the body search of the defendant HK$20,999.30 was found on him.

(9) The defendant accepts that the dangerous drugs found in his possession were for the purpose of trafficking.”

According to the case AG v Ching Kwok Hung [1991] 2 HKLR 125, as revised by HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, for trafficking in 10 to 70 grammes of ‘Ice’ the range of sentence should be 7 to 11 years’ imprisonment, and on a mathematical calculation the proper starting point to be adopted in the present case should be in the region of 8 years for 26 grammes of ‘Ice’.

Mr Poon, on behalf of the defendant, has referred me to the case of Wong Suet Hau & Anor [2002] 1 HKLRD 69 to state the fact that part of the drugs possessed by the defendant in this case was intended for self‑consumption, and according to that authority at page 79A-H, the following factors should be considered by the court:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs were wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs including on the one hand items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have be an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay his drugs otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.

Mr Poon on behalf of the defendant has submitted to me that at the time of arrest the defendant was a drug addict. He has eight previous convictions of possession of dangerous drugs and has been sentenced to DATC on two occasions which would suggest a drug habit. After his arrest, the defendant was taken by the police to the methadone clinic on 9 September 2014 to take methadone when he was in police custody.

Under caution he admitted that he bought the drugs for his own consumption. After he had been remanded in Lai Chi Kok Reception Centre for the present case, his urine sample was taken and the test result was positive for various types of drugs.

According to the letter from the Correctional Services Department Lai Chi Kok Reception Centre dated 13 July 2015, his urine specimen showed positive results to amphetamine benzodiazepine and opiate.

A psychiatric report on the defendant dated 27 November 2013 stated that upon psychiatric assessment he was diagnosed as suffering from adjustment disorder with a prolonged depressive reaction coupled with heroin dependency syndrome and harmful use of multiple substances.

It has been held by the Court of Appeal in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116 at paragraph 19 that:

“...when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount of sentence should, depending on the circumstances, fall somewhere between 10 to 25 per cent of the basic starting point.”

That was said in paragraph 19 of that judgment.

Mr Poon has further referred me to several cases when various percentages were given as a discount to the defendant, namely HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558 at paragraph 13; HKSAR v Law Num Chun [2014] 5 HKLRD 500 at paragraph 41; and HKSAR v Tsang Chung Keung [2015] 1 HKLRD 450 at paragraphs 17 and 18.

From the evidence put before me, I have no doubt that the defendant was a drug addict when he was arrested for the present offence, and I have no doubt either that part of drugs he was carrying was for his own consumption.

In the result, I think about a 20 per cent discount should be given to him for part of the drugs being for his own consumption.

The defendant has written to me confessing his guilt and his acceptance of his responsibility for the offence. He is regretful that he was not filial enough for his father. I hope he will turn a new leaf because, apparently, he has got rid of the drug habit whilst in custody for over a year now.

I adopt the basic starting point of sentence to be 8 years’ imprisonment, reduce it by 20 per cent to 6 years and 4 months, and he is fully entitled to his one-third discount for pleading guilty.

That results in a sentence of 4 years and 3 months. The discounts are rough discounts and the actual sentence you have to serve is 4 years and 3 months’ imprisonment.