HKSAR v. Mo Chong Man

DCCC 327/2019

[2020] HKDC 43

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 327 OF 2019

---------------------------

----------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.The defendant is convicted on his own plea and agreement to Summary of Facts to a charge of doing acts preparatory to or for the purpose of trafficking in substances believed to be dangerous drugs, contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“1st charge”) and a charge of conspiracy to wound with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212 and sections 159A and 159C of the Crimes Ordinance, Cap 200 (“2nd charge”).

Facts

2.PW1, DPC 10029, was an undercover officer.

1st Charge

3.On 16 November 2012, PW1 met Sunny.  Sunny asked PW1 to do something for him.  Later they saw the defendant and another person sitting in the rear compartment, inside a taxi.

4.The defendant told PW1 that he should follow Sunny and worked.  The defendant and the other man left the taxi while Sunny and PW1 boarded the taxi driven by a Mr Kwok.  Sunny was also given a mobile phone by the defendant who told Sunny that he should use the phone to liaise with customers.  Sunny told PW1 that the taxi driver Kwok was one of them.  Sunny also told PW1 that they are going to pick up ‘K Chai’ and make deliveries.  PW1 asked if he could refuse doing it and Sunny told him that since PW1 knew everything he had to do it otherwise he would be chopped.  PW1 agreed to do it and Sunny said to PW1 that he would be paid afterwards.

5.Later they took and made deliveries of drugs which they understood to be ‘K Chai’ and ‘Coke’ using the taxi, delivering the drugs at different locations using the mobile phone for contact.  For ‘K Chai’, ie ketamine, they made two deliveries of three packs and two packets all from Sunny and three deliveries of two packets each all from PW1 hidden in his right shoe, left shoe and underpants respectively.  These drugs were given to him by another earlier on. The money received for one delivery of two packets of ‘K Chai’ from PW1 was valued at $5,200. 

6.There were also one delivery of ‘Coke’, ie cocaine.  They were put in a blue cigarette box. 

7.After the deliveries, PW1 and Sunny again met the defendant, then eating together with 10 other men.  The defendant said to PW1, “Ah Bo, wasn’t it refreshing making deliveries today?  As I said, I will definitely be able to find you something to do, this time delivering ‘K Chai’, later will have lots of things to do.”

8.The defendant paid Sunny $2,000 for the job, out of which Sunny gave PW1 $500.  Taxi driver Kwok said he would be paid by the defendant for his job later.

2nd Charge

9.In the evening of 20 November 2012, PW1 and Chen met Sunny and a person called Sek.  Sunny told them that PW1, Sek and Chen were to do something for Sunny’s big brother, Mo Chong-man (pseudonym ‘Sai Kwai’) the next day. 

10.Sunny said the defendant had asked that they go to Eastern Law Courts the next day to beat up someone.  Sunny said that he would discuss with the defendant and he asked the trio to wait for his call.

11.Later the same day, PW1, Chen, Lau Lee, Sunny, Sek, Ah Fai and Fei Nun met.  All of them took a taxi and went to a bar to meet the defendant. 

12.The defendant then told the group that he needed them to go to Eastern Law Courts the following day to beat a taxi driver who had had a car crash with the defendant’s big brother.  The big brother had an issue with the taxi driver and they must beat the taxi driver until his eyes burst.  The defendant said he would go out with them.  The defendant further instructed PW1 to buy a glass bottle the following day from an OK convenience store to burst it on the taxi driver.

13.Later, everyone left the bar and returned.  Later, Sunny met Chen, Sek and PW1 outside a cybercafé where Sunny paid each of them $500 as their wage for the attack.

14.Around 7 am on 21 November 2012, Sunny, Chen, Sek and PW1 arrived at the ground floor of Kwai Hei House where they were joined by the defendant.  They all took a taxi to Eastern Law Courts Building and arrived at 7:37 am.  Upon arrival at Eastern Law Courts, Sunny told Chen, Sek and PW1 to walk around in the vicinity and wait for instructions as to when the taxi driver would appear at the Eastern Courts Building.  Sunny also instructed the trio to see if there were police officers around.  Chen, Sek and PW1 wandered in the vicinity until 1:20 pm.  The trio were once stopped and questioned by some uniformed police officers.

15.Eventually, the three of them took a taxi to Shau Kei Wan MTR Station where they met Sunny and the defendant.  The defendant said there were too many police officers in the vicinity.  As the defendant and the trio had been intercepted by the police, the job was called off.  The whole party then returned to Kwai Fong.

16.In the video-recorded interview that followed, the defendant admitted under caution to being in the vicinity of the Eastern Law Courts Building with Sunny, PW1, Chen and Sek between 9 am and 1 pm on 21 November 2012 and that he wanted to attack a taxi driver as instructed by a friend.  They were waiting for their target but could not locate him, so they all left without attacking the taxi driver.  The defendant said he saw Sunny in the evening of 20 November 2012 and asked Sunny to recruit two to three to attack this person at about Eastern Law Courts Building.  Sunny said okay and the group met in Kwai Fong Estate before they took a taxi together to the Eastern Law Courts Building in the morning of 21 November 2012.  The defendant said he paid for the taxi fare, and being unable to wait for their target they left at about 1 pm.  The defendant said he remembered having told Sunny to attack their target with fist punches until the target bleeds.  He understood the others knew about the plan.

17.The defendant conspired with Sunny, Chen and Sek to unlawfully and maliciously wound another person with intent to do him grievous bodily harm.

Criminal Record

18.The defendant has one previous conviction of affray back in the year 2009.  He was put on probation for 12 months.

Mitigation

19.The defendant is now aged 28.  He was 21 years old at the time of the offence.  He is single and lives with his mother.  He was born in the Mainland and he received education up to Form 5 in Hong Kong.  He had been an automobile repairer.

20.After he was arrested for this offence, he was granted police bail and he jumped bail and had been in hiding until 6 March 2019 when he surrendered himself. 

21.The defendant said in relation to the 1st charge, he accepts that he was acting in joint enterprise with the others to take the substance, which he believes to be dangerous drugs ketamine and delivered them to six places in the late night of 16 November 2012.

22.It is submitted by defence counsel that there is no evidence before this court as to whether those drugs in fact was dangerous drugs or other substance.  The exact quality and quantity of the drugs were unknown.  She said that the only description of the drugs is that they were placed in a packet size of 2 inches x 3 inches where the actual quantity and the substance inside the packets were unknown.  She also said that considering the way of packing and the way of hiding the said drugs, two packets in each of the PW1’s shoes and the remaining two being placed in his underpants, that the said quantity of dangerous drugs should not be much.

23.It is conceded by the defence counsel that the defendant played an important role in the operation.  He had knowledge of these deliveries and he also made the relevant communication with the others at the material times so as to enable the successful deliveries of those drugs.

2nd Charge

24.Defence counsel submitted that although there was the plan to attack the taxi driver, in the end the same was not carried out.  No one was actually injured in the incident.  It is said that these men were not armed that morning and that since they could not locate the taxi driver, the plan was aborted.

25.Defence counsel submitted that the defendant now says he is deeply remorseful for what he has done and he knows that these are very serious offences and this explains why he had went into hiding for the last six years. It was said that during the hiding years the defendant felt depressed and isolated.  His 69-year-old mother had to take care of him during these hiding days.  He says his mother has cataract.  The defendant says now that he wishes to face the consequence of his misdeeds and want to turn a new leaf afterwards.

26.It is submitted by defence counsel that for the 2nd charge there is no sentencing tariff.  It is said in the case of HKSAR v Hung Kar Chun, CAAR 9/2010 that the usual sentence for “wounding with intent” lies within the range of 3 to 12 years’ imprisonment. 

27.Counsel for the defendant also says that the chance of him reoffending is very low.  She also submitted that the facts of the two offences in the present case are not the most serious type of its kind.  She urges this court to consider also the totality principle and to pass a lenient sentence on the defendant.

Discussion

1st Charge

28.The maximum sentence for the conviction of the present offence on the indictment is a fine of 5 million and to imprisonment for life. 

29.In the case of HKSAR v Li Oi Yee, CACC 362/2010, VP Stock said in paragraph 8 of the judgment that:

“The harm at which the attempt offence is directed, where the offender believes, albeit mistakenly, the substance to be or contain a dangerous drug, is the harm created by the advancement of the culture and of the business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had the substance turned out to be a dangerous drug and there is by reason of this mens rea a substantial degree of criminality: R v Patel [1995] 16 Cr App R (S) 267, 272. Whilst part of the sentence in any dangerous drugs case is directed at the actual harm caused by the ultimate consumption of the drug, a significant part of the sentencing aim in dangerous drugs cases is that of deterrence. It is the aim of the courts firmly to dissuade erstwhile traffickers from engaging in this trade and it sits ill in the mouth of the offender who believes erroneously that he is trafficking in dangerous drugs to suggest that he should by reason of happenstance be immune from that deterrent policy.”

30.In paragraph 12 of the judgment of the same case, it says:

“Insofar as the judge in our present case appears to have taken the view that the guidelines for actual trafficking in dangerous drugs were of no help, we think that, in a case such as the present, the court should indeed look at the sentence which otherwise be imposed for trafficking in the drugs which the offender believed she possessed, for her moral culpability remains the same, but the court should at the same time accord a reduction in recognition of the fact that the actus reus brings with it, as matters transpired, no harm to the ultimate consumer.”

31.In this case, the defendant believed that he was trafficking in ketamine and cocaine.  As a matter of fact, he had received $5,200 for two packets of 2 inches x 3 inches white powder which he believed to be ketamine. 

32.This court agrees with the observation by the defence counsel that by reason of the packing of the six packets of ketamine on PW1, ie 2 inches x 3 inches, and the fact that they can be hidden by the first prosecution witness in the shoes and the underpants, that quantity of drugs of ketamine involved would not be substantial. 

33.This court notes however that there is no evidence as to the size, weight or quality of the three bags of “white powder” from Sunny and thrown into the vehicle RD 8826 or two packets of “white powder” handed to the man at Broadway by Sunny. 

34.Again, there is no evidence of the size or weight or quality of the transparent bag containing the yellow crystalline substance which was believed by Sunny to be cocaine ‘Coke’. 

35.Of course this court noted this packet of ‘Coke’ is not the subject matter of one of the deliveries on the day, but the contents of the blue cigarette box is the subject of delivery on the day, the last delivery on the day.  Again, the size, the weight and quality of the contents of the blue cigarette box is not known.

36.The fact that the defendant believed the drugs trafficked or about to be trafficked were ketamine and cocaine was relevant for sentencing. 

37.In this case the defendant played a major role in the operation.  He was higher up in the hierarchy of the trafficking operation than the other persons named.  He was the one who encouraged PW1 to work for Sunny; he was the one who allegedly arranged payments for the taxi driver Kwok and Sunny, one of the courier or courier recruiter; he supplied Sunny with a mobile phone to facilitate the communication for the taking and making deliveries of drugs and obviously also for control.  His culpability in the operation must be more than that of Sunny and Kwok.

38.The defendant believed he was trafficking in two dangerous drugs.  He arranged several deliveries in one night.  One of the deliveries already fetched him $5,200.  The size of the operation is not small at all.  He also had engaged a taxi to make swift deliveries.  The whole trafficking operation is much more sophisticated and better organised than one where the seller merely sells a small packet of dangerous drugs for just a few hundred dollars.

39.This court has considered the submission in mitigation advanced by defence counsel, but for such a serious offence, the only appropriate sentencing option is one of immediate imprisonment.  Personal background seldom could constitute a mitigating factor.  The most valid mitigating factor in this case is the defendant’s guilty plea of which he is entitled to a full one-third sentencing discount.

40.As said earlier, two types of drugs were trafficked or believed to have been trafficked in this case and this constitute an aggravating factor which would enhance the original appropriate sentencing starting point of 3 years and 6 months to 3 years and 9 months.  As the defendant is entitled to a full one-third sentencing discount, he is sentenced for this offence to 30 months’ imprisonment.

2nd Charge

41.For wounding with intent offences, there is no tariff or sentencing guideline for this 2nd charge.

42.In the case of HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673, the Court of Appeal referred, as said by the defence counsel, the usual range of sentence for this offence lies between 3 to 12 years.

43.In the case of HKSAR v Chan Chun Tat, CACC 317/2012, the court set out a number of factors to be considered in the sentencing of this offence in order to determine the gravity of the offence and the culpability of the offender.  The same included the extent to which the assault was premeditated, the reasons or motivation underlying the assault on the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the action of the assailant, whether the assault was committed by the assailant alone or he is part of a group; the type of weapon employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

44.In this case the planned attack was said to have resulted from merely a dispute relating to a car crash between the defendant’s big brother and the taxi driver. 

45.The plan was that three people would be employed to actually attack the taxi driver while two others would be at the scene to monitor the situation. 

46.The defendant had directed that a glass bottle be employed to burst on the taxi driver and that the group must beat the taxi driver until his eyes burst. 

47.The plan was vicious and it was not implemented only because both Sunny and the three assailants to be checked by uniformed patrolling police at the scene.  The taxi driver also was not located at that time. 

48.The planned attack was obviously a premeditated one.  The intended injury on the taxi driver was serious.  At least three attackers were involved, not considering the other two monitoring the situation. 

49.An aggravating feature was that they chose to attack the taxi driver outside Eastern Law Courts which showed they had absolutely no respect for the law.  The defendant again was the one actually instigating the whole plan or at least the one very near to the one actually instigating the whole plan.  His culpability again is more than that of the other persons named.  This court however noted that the plan was not carried out and that no one was injured as a result.

50.Considering the seriousness of the offence and the circumstances of the case, this court considers again that the only appropriate sentencing option for this offence is one of immediate custodial sentence and that 2 years and 6 months’ imprisonment is appropriate as a starting point for the offence. 

51.Again, considering the mitigation advanced, the court finds the most valid mitigating factor is that of the defendant’s guilty plea of which he is entitled to a full one-third sentencing discount.  The defendant is therefore sentenced to 20 months’ imprisonment for this charge.

52.The two offences were committed on different dates and they were of an entirely different nature.  However, considering the totality principle, the court considers that a total sentence of 40 months’ imprisonment would adequately reflect the culpability of the defendant in the case.  The court therefore now orders that the sentence of 10 months’ imprisonment in the 2nd charge shall run consecutively to the sentence in the 1st charge and the other 10 months’ imprisonment shall run concurrent to the sentence in the 1st charge.  The defendant is therefore sentenced to a total of 40 months’ imprisonment for this case.