HKSAR v MOK LAI CHUN

DCCC 870/2022

[2023] HKDC 1268

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 870 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges of trafficking in dangerous drugs: -

Charge 1

Trafficking in dangerous drugs: -

(a)  A solid containing 3.87 grammes of cocaine and

(b)  A solid containing 24.8 grammes of ketamine.

Charge 2

Trafficking in a dangerous drug: -

(a)  A solid containing 4.38 grammes of cocaine.

Charge 1

2.  At around 09:40 hours, the police intercepted the defendant at the junction of Nelson Street and Portland Street. Upon search, 67 resealable bags were found in a pouch bag inside the rucksack (“E2”)  carried by the defendant: -

(a)  31 small resealable bags containing a narcotic content of 3.87 grammes of cocaine and

(b)  36 resealable bags containing a narcotic content of 24.8 grammes of ketamine.

3.  A total of HK$33,315 in cash as well as 2 mobile phones were also found.

4.  The defendant was arrested for trafficking in dangerous drugs and admitted under caution that the 67 packets of dangerous drugs in her bag were for her self-consumption.

Charge 2

5.  During a house search in Tsim Sha Tsui, the following items were found: -

(i)  35 packets of transparent resealable plastic bags containing 4.38 grammes of cocaine were found inside a tissue box;

(ii)  1 electronic scale; and

(iii)  A large number of plastic bags.

Defendant’s cautioned video-recorded interview

6.  The defendant stated the following: -

(i)  The defendant was aware that charge 1 contained ketamine and cocaine and the purchased price was $8,000;

(ii)  As to the HK$33,315, the defendant explained that she had borrowed HK$20,000 from a friend for warrant investment while the rest belonged to her;

(iii)  The defendant claimed that she spent $3,000 to purchase the 4.38 grammes of cocaine for her own consumption.

7.  The total street value of the drugs is around HK$20,278.95.

Criminal record

8.  The defendant has 2 court appearance in 1979 and 2006 with 4 criminal convictions, one conviction of trafficking in dangerous drugs in 2016.

Antecedent and mitigation

9.  The defendant is now 64 years old. She was divorced in 1986 and remarried in 1989. She divorced again in 1991.

10.  She has 3 children from the two marriages. They are married and lived apart.

11.  The defendant worked as a night club waitress from 2020 and earned about $16,000 per month.

12.  Since 2012, the defendant has engaged in buying and selling warrants in the stock markets. However, she lost money in these investments.

13.  In May, 2022, the defendant met a friend to offer her $800 to deliver drugs for him on each successful delivery.

14.  She then borrowed $33,000 from friend and relative to invest further in warrants as she believed she would have steady income by delivery drugs.

15.  The defendant’s daughter will apply for the defendant to live in Canada with her. The defendant is now very remorseful.

16.  The defence in mitigation said that the last conviction was in 2006, that was some 16 years ago.

Sentence

17.  In the present case, there are two types of drugs: -

Charge 1: - 24.8 g of ketamine

3.87 g of cocaine

Charge 2: - 4.38 g of cocaine

18.  Trafficking in ketamine, the sentencing guideline is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the amount between 10 to 50 g, the sentencing bracket is 4 to 6 years.

19.  Trafficking in cocaine, the sentencing guideline is R v Lau Tak Ming and others [1990] 2 HKLRD and AG v Rojas [1994] 1 HKC 342, up to 10 g of narcotic content, the sentencing bracket is 2 to 5 years.

20.  As such, the starting point for: -

Charge 1: -

(a)  24.8 g of ketamine is 57 months’ imprisonment

(b)  3.87 g of cocaine is 38 months’ imprisonment

Charge 2: -

(a)  4.38 g of cocaine is 40 imprisonment

21.  I agreed with the defence that the individual approach will produce a harsh sentence on the defendant. The combine approach will result in a fair sentence.

22.  The circumstances of the arrest and seizures of the drugs from street possession to house possession was in fact one occasion of possession of the total amount of drugs. As the cache of drugs in the premises should be the same source of drugs found on the defendant’s person.

23.  When charge 1 and 2’s total quantity of cocaine added together, it becomes 8.25 g (3.87 g + 4.38 g)  and it attracts a sentence of 54 months.

24.  However, I still need to impose individual sentence on each charge.

25.  In the present circumstances, when the base drug for charge 1 is cocaine: -

(a)  Absurdity Test: - 77 months

(b)  Conversion Test: - 62.7 months

(c)  Ratio Test: - 76.8 months

26.  When the base drug for charge 1 is ketamine: -

(a)  Absurdity Test: - 59 months

(b)  Conversion Test: - 60.63 months

(c)  Ratio Test: - 51 months

27.  When the base drug is cocaine (3.87 g + 4.38 g)  for both charge 1 and 2 (3.87 g + 24.8 g + 4.38g): -

(a)  Absurdity Test: - 80.75 months

(b)  Conversation Test: - 67 months

(c)  Ratio Test: - 80.75 months

28.  As the ketamine in charge 1 represented about 86% of the total quantity of the drugs in charge 1, I take 57 months as the starting for charge 1 and adjusted upward for another 3 months to take into account of the quantity of cocaine. It becomes 60 months.

29.  As the defence properly accepted that there were 2 types of drugs in charge 1 which amounts to aggravating factor, the starting point in charge 1 should be enhanced by 3 months.

30.  I therefore enhance the starting point by 3 months for the aggravating factor, it becomes 63 months for charge 1. After 1/3 discount, it becomes 42 months.

31.  I do not enhance the starting point any further as the defendant’s last conviction was in 2006.

Charge 2

32.  I adopt a starting point of 40 months, reduce to 26.7 months after 1/3 discount.

33.  I also order 4 months from charge 2 to run consecutively to charge 1.

Order

34.  The sentence for both charge 1 and 2 is 46 months’ imprisonment.