HKSAR v. MOK KA YUI

HCCC 376/2019

[2020] HKCFI 2796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 376 OF 2019

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

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COURT: Mr Mok, you pleaded guilty to two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on 4 November 2019 before the Eastern Magistracy, at the very first opportunity, in that you accepted that you had trafficked, under Count 1, in 981 grammes of ‘Ice’, and under Count 2, 153.8 grammes of ‘Ice’ and 8.3 grammes of heroin hydrochloride on 12 March 2019.

The drugs under Count 1 had a street value of $543,950, and under Count 2, the drugs had a street value of HK$92,901.

By reason of your acceptance of that plea, you stand formally convicted of the charges.

The facts of this case are very simple. You were apprehended during an anti-narcotics operation in the vicinity of the Kin Luen Factory Building in Tai Kok Tsui. The 981 grammes of ‘Ice’ under Count 1 were found in bulk in a plastic bag concealed within a biscuit tin which you were holding when you were stopped. Presumably, this was to be subdivided for sale once you received instructions for onward delivery. On arrest, you admitted that you were supplying those drugs for a reward of $3,000.

The subject matter of Count 2 was found inside a flat within the building. The paraphernalia for onward distribution was found, which included resealable plastic bags, electronic scales, etc. There were also three resealable plastic bags within which was found more ‘Ice’ and a further plastic bag of heroin hydrochloride.

Under interview, you were frank with the police about your involvement and about the premises you were using.

You are a Hong Kong resident, 29 years of age, having been educated up to Form 3. You are married with a young daughter, and she lives with your parents.

Mr Davies tells me this offending took place out of difficult financial circumstances. But of course, Mr Mok, you cannot turn to crime every time that life does not go your way and you need to make money. You knew the risk you were taking because you had committed this offence before. According to the antecedent record, you say you were a construction worker, and so you would have been able to earn an honest income in the region of HK$20,000 per month.

You have a criminal record dating back to 2004 when you were just 14 years old, at which time you were given probation and a period in a boys’ home. But I notice that you were before the court again a year later for breach of that probation order and you were then sent to a rehabilitation centre. In 2007, you were before the court for common assault. And in 2009, you appeared for the first of three offences relating to drugs. By then, you were just 18.

In 2009, you received drug addiction treatment centre which clearly did not deter you from further involvement in drugs as you were before the court once more in 2015 for trafficking in dangerous drugs, for which you received 54 months’ imprisonment in all for two sets of offending. You were released from that sentence of imprisonment on 14 November 2017. It took 16 months before you were caught again. You clearly had absolutely no intention of becoming a law-abiding citizen despite the fact that you were about to become a father for the first time at the time of this offending.

Mr Davies on your behalf accepts that unfortunately there is very little else that can be said on your behalf.

The relevant sentencing guideline in respect of Count 1 is HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. For trafficking in between 600 and 1,200 grammes of ‘Ice’, the starting point after trial is between 20 to 23 years. For trafficking in 981 grammes of ‘Ice’ under Count 1, the starting point would be 21 years and 9 months’ imprisonment.

The relevant guideline for trafficking in lesser amounts of ‘Ice’ under Count 2 is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The relevant starting point for 153.8 grammes of ‘Ice’ is 12 years and 6 months’ imprisonment. There was also, of course, the 8.3 grammes of heroin hydrochloride which falls to be considered under the guidelines in HKSAR(R?) v Lau Tak Ming [1990] HKLR 370 which provides a starting point after trial of 4 years and 5 months.

If the drugs under both counts were added together, that would make a total sentence of 38 years and 8 months, which is out of all proportion to the criminality of this offending. An individual approach to sentencing is therefore inappropriate. I intend to use a combined approach. This usually involves the calculation of the applicable sentence for the more or most serious drug in terms of potency and for the court to adjust that sentence upwards to take account the significant quantities of other less serious drugs.

In this case, however, so far as large quantities of drugs are concerned, ‘Ice’ and heroin fall to be considered under HKSAR v Abdallah whereas for lesser quantities under 600 grammes, they fall to be considered under Tam Yi Chun and Lau Tak Ming respectively, which had slightly different sentences for similar quantities of drugs so that, for example, if I were to take the total amount of ‘Ice’ and heroin which is 162.1 grammes under Count 2, the starting point after trial under Tam Yi Chun would be 12 years and 6 months but under Lau Tak Ming would be 11 years.

If these drugs had formed just part of just one count, you would have been sentenced for trafficking in 1,134.8 grammes of ‘Ice’, which would attract a starting point after trial under Abdallah of 22 years and 8 months’ imprisonment. If I treated the whole amount from both counts including the heroin hydrochloride as a cocktail of drugs, the whole amount would be 1,142.5 grammes, attracting a starting point for sentence of 22 years and 9 months’ imprisonment. The heroin hydrochloride represents just 0.67 per cent of that total. If I took just the drugs under Count 2, the total amount of dangerous drugs would be 162.1 grammes and the heroin hydrochloride would represent just 5 per cent and attract a starting point of 11 years under Lau Tak Ming, as I have said. But equally, as I have said, it would attract 12 years 6 months under Tam Yi Chun.

I am therefore going to consider this as if I am just dealing with the ‘Ice’ which was of similar potency but by far the greater proportion of the drugs. The upper limit of the totality of sentencing must therefore be 22 years and 9 months’ imprisonment as this was, in essence, just one set of offending.

Trafficking in dangerous drugs, Mr Mok, is a very serious offence and it attracts a deterrent sentence. There is very little that can be said by way of mitigation which can reduce the sentence which I am required to pass. You will, of course, receive a one-third discount for your early plea. I have considered the other matters raised before me and the efforts made by you in that respect, and I am prepared to give you the benefit of the doubt and to increase that discount to take that into account.

I am not reducing the amount further to take into account the use by you of any of these drugs because I have no evidence from you of the arrangements you had in respect of the drugs found upon you that day and you were not prepared to give evidence before me. What I do know is that you had a greater range of drugs in your system than was found in this unit and that you appeared to be joined in a commercial enterprise within which you could be the middleman or you could be the retail trafficker. I do not know. There was nothing at the scene to suggest you used this venue for abusing drugs. You clearly had access to other drugs and no doubt consumed them elsewhere. You are a hardened addict and this was the means by which you earned the money to be able to support that habit.

On Count 1, you will go to prison for 13 years and 1 month. On Count 2, you will go to prison for 7 years and 4 months, 7 months of which will be consecutive to your sentence under Count 1, which makes a total term of imprisonment of 13 years and 8 months.