HKSAR v. Mok Ho Leung

DCCC 223/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 223 OF 2017

____________

____________

REASONS FOR SENTENCE

1.Mok Ho Leung you have pleaded guilty to one charge of trafficking in 10.87 grammes of a solid containing 9.30 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary in the evening of 27 November last year you were in the Customs Departure Hall of the Hong Kong-Macau Ferry Terminal when customs officers intercepted you for a search.  Inside the right front pocket of your trousers was a total of 56 transparent re-sealable plastic bags containing the cocaine. Under caution you admitted the cocaine had been given to you by an unknown male and that for reward you were to pass the cocaine to someone in Macau.

Mitigation

3.In passing sentence, I have carefully considered everything said on your behalf by Mr Ng together with your mitigation letter.  I take into account that you are only 17, 16 at the time of the offence and that this is your first drug conviction.

Guidelines

4.The courts have equated for sentencing purposes cocaine with heroin[2].  In R v Lau Tak Ming[3]the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment[4].    

5.Section 109A of the Criminal Procedure Ordinance[5], provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison.

6.At the request of Mr Ng I called for a training centre suitability report to provide me with further information about you[6].  I have carefully considered the content of the report. 

7.The reportreveals that while in Form 2 you joined the “San Yee On” triad society.  This coincided with a deterioration in your school grades resulting in a score of 62 out of 1900 marks and your conduct graded as “F”[7]. 

8.You were also involved in two offences of arson, one for which you were placed on probation with a condition of residence at a boy’s home.  In October 2015 having lost interest in studying you quit school.  After completing probation, you continued to associate with triad members.  Out of greed for easy money you committed the offence of trafficking in drugs[8].

9.After assessment of your behaviour and attitude while on remand you are considered suitable for detention in a Training Centre.  Notwithstanding you lost interest in studying in 2015 you claim you would treasure every learning opportunity if you were sentenced to a Training Centre[9]. I am told you wish to continue the education and training you have received while on remand. 

10.When calling for the report I warned you that the appeal courts have made very clear that save in very rare cases a Training Centre Order should not be imposed for trafficking in substantial quantities of dangerous drugs.  In Secretary for Justice v Chau Tsz Tim the Court of Appeal restated that only in very rare cases where there are exceptional circumstances will a Training Centre Order be appropriate for trafficking in substantial quantities of drugs[10].    

11.After very careful consideration I am satisfied that this is not one of those very rare cases where a Training Centre Order would be appropriate.  Notwithstanding your young age and that you have spent just over eight months in custody I am satisfied there are no exceptional circumstances warranting departure from the guidelines. Further, I am satisfied that if you wish to continue your studies while serving sentence you will be allowed to do so. 

Sentence

12.On a purely mathematical approach a starting point of about 4 years and 9 months would be appropriate for trafficking in 9.30 grammes of cocaine.  Taking into account your young age and this is your first conviction for trafficking in drugs I am satisfied a starting point of 4 years and 6 months’ imprisonment is appropriate.  By reason of your exporting the drugs to Macau the starting point is enhanced by 3 months to 4 years and 9 months imprisonment[11].

13.Having indicated on plea day you would plead guilty you are given full credit for your plea of guilty.  You are convicted and sentenced to 3 years and 2 months’ imprisonment.