HKSAR v. MOK NGO HIN

HCCC 385/2018

[2021] HKCFI 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 385 OF 2018

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

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COURT: Defendant, you pleaded guilty to a charge of trafficking in dangerous drugs before a magistrate at the Eastern Magistracy, on 3 December 2018. On the same date, you also admitted the Summary of Facts. As a result of your plea of guilty and admission of the facts, you were committed here to the Court of First Instance for sentence.

Defendant, you admitted that on 24 May 2018, near Exit C, Fanling MTR Station, Fanling, you unlawfully trafficked in 999 grammes of a solid containing 800 grammes of cocaine.

At around 11.30 pm, on 24 May 2018, a Customs & Excise officer stopped you near Exit C, of the Fanling MTR Station. He searched a white paper bag carried by you. Inside there was a black plastic bag containing one resealable plastic bag containing the drugs as mentioned in the charge. You were arrested and under caution, you denied knowing anything about the substance inside the bag.

A house search was conducted at your residence at Ta Kwu Ling and nothing illicit was found. In a subsequent video-recorded interview, you indicated you had nothing to say. You now admit and accept that you possessed the dangerous drug seized for the purpose of trafficking.

The estimated street value of the dangerous drug seized was $1,083,915.

You are now 23 years of age. You have attained education up to Form 3. You have previously worked as a recycling worker earning approximately $18,000 to $20,000 per month before your arrest. Your counsel, Mr David Boyton, has submitted his points in mitigation as well as many letters written on your behalf from your parents, your cousin, your friends, previous employer, elder brother and also a Ms Chan Yuet-ming, a District Council member. It appears that they have all expressed the same thing; that is, they are extremely surprised to hear that you have committed such a serious offence, as, although you did not do well in your studies, once you had started work, were a hard-working responsible employee and supported your family.

You committed this offence when you were a young man of 21. You have a previous conviction related to driving offences dating back to 2013, four of which and I do not consider them relevant for the purposes of sentencing you in this case. For those offences, you were sentenced to probation. You have never been to prison before and as Mr Boyton says you have now been in custody for some two years. However, the delay of this matter coming to sentence, as Mr Boyton admitted, is through no fault of anyone.

The reason partly why this matter was adjourned for sentence was because you had in fact offered assistance to authorities and the parties were waiting for the result of the person who had been arrested as to whether you were required to give evidence or whether he would plead guilty. That person was the person who in fact recruited you to traffic in these drugs. I am informed by the prosecutor, Mr Tsang, in this case that you gave to the Customs his full name and details. As a result of your assistance, the recruiter was charged with the exact same offences as you and with the same quantity of drugs in question and in fact pleaded guilty to the same offence in case number HCCC 186/2020. The recruiter pleaded guilty before a magistrate on 10 August 2020.

I accept that you did provide positive and fruitful assistance to authorities. Mr Boyton has submitted that the discount you should get should be high in view of the fact that the person arrested was higher in the chain, in that, he was a recruiter and not a foot soldier like yourself. Mr Boyton says, however, he does not have any authority in support of his submission, although as I see there are many cases of which assistance has been given to which recruiters have also been arrested. I accept the quality of your assistance was good.

You have, as a result of the recruiter’s plea of guilty, not been able to give evidence against him in court which you were willing to do. Mr Boyton has submitted the case of HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, in support of the range of discount that a defendant should get where a defendant agrees to testify for the prosecution but is prevented from fulfilling his promise because the offender pleaded guilty.

I have taken into regard the judgment and from paragraph 53 onwards your case falls within the 40 to 50 per cent discount range. I accept that without your evidence against the recruiter, the prosecution would not have been able to have any evidence against him. He was the person who recruited you to get the drugs but he was not the actual person who handed you the drugs. Mr Boyton submits that you were threatened and offered cash when in custody prior to the committal of the recruiter. However, this is not accepted by the prosecution. I have no evidence before me that you are in more danger as a result of you giving evidence or providing assistance to the prosecution as a result.

The strongest mitigating factor you have in this case is of course your early plea of guilty. The other mitigating factor is of course your positive assistance to the authorities. I am satisfied that I should grant you a discount of 44 per cent which would subsume the one-third discount.

Defendant, you were trafficking in 810 grammes of cocaine. The leading case on trafficking in that quantity of drugs is that of Abdallah. For this quantity of drugs, had you been convicted after trial, it falls within the bracket of 600 to 1,200 grammes where it would attract a sentence of 20 to 23 years’ imprisonment. Defendant, had you been convicted after trial, I would have taken a starting point of 21 years’ imprisonment. There are no aggravating factors in this case. I will discount that sentence by 44 per cent given your plea of guilty and your assistance to the authorities and the resulting sentence to which you shall be sentenced is one of 11 years and 9 months’ imprisonment.