HKSAR v. Mok Ka Lun

HCCC 404/2019

[2020] HKCFI 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 404 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of Attempted Trafficking in a Dangerous Drug[1], admitted to the Summary of Facts before magistrate Mr Ho Chun‑yiu, and was committed on the same day to the Court of First Instance for sentence[2].

Summary of facts

2.On 9 March 2019, an inbound parcel from Malaysia, which was later found to contain 75 plastic packets with a total of 2,981 grammes of a solid consisting of 2,942 grammes of methamphetamine hydrochloride (commonly known as the drug “ice”) was intercepted by Customs officers at the Hong Kong International Airport.

3.The drugs were meticulously packaged inside individual instant coffee packets, impossible to be detected on sight without opening them.

4.On 11 March, a Customs officer contacted the defendant on his mobile phone, pretending to be a postal officer who wanted to deliver the parcel.

5.Shortly after the call was made, the officer delivered the parcel to the address of the intended recipient that was stated on the parcel, which was at Block A, No 5E, 14^th Floor, Heng Wai Industrial Centre, Tuen Mun.

6.The defendant opened the door of Room 5 and claimed to be the recipient.  The Customs officer placed the parcel on the floor and the defendant confirmed the particulars on the airway bill before signing on a copy of the bill.  The defendant was then arrested.

7.Under caution, the defendant said he understood.  He answered “Room 5E” when being asked where he lived.

8.The defendant was then brought into Room 5E, which was unfurnished. Under reminded caution, the defendant said that the parcel belonged to him and that it contained coffee beans.  He claimed he knew nothing about the white crystals inside.

9.The defendant claimed he was helping a person called “Ah Kit” to receive the parcel for a reward of $5,000, but he had no means to contact him.

10.The defendant confirmed that the key for Room 5E found in his trousers pocket belonged to him, and that he rented the room at $3,800 a month.

11.Investigations revealed that the defendant had been renting the room since around February 2019.

12.The retail value of the “ice” found was estimated to be around $1.64 million as at March 2019.

Previous conviction

13.The defendant has no previous criminal convictions in Hong Kong.

Mitigation

14.The defendant is 43 years old, educated up to Form 2 level, and divorced with a 5‑year‑old daughter from his marriage.  He was unemployed and had also been homeless for 15 months at the time of his arrest, spending his nights in a McDonald’s restaurant in Yuen Long.

15.Mr Chu for the defendant informed the court that the defendant committed the present offence to try to make some quick money, so that he can pick himself up and hopefully his ex‑wife would allow him to visit their daughter.

16.Mr Chu also told the court that the location of the offence was not the defendant’s address, it was a place arranged by Ah Kit (as mentioned in the Summary of Facts) solely for the purpose of receiving the dangerous drugs in question.

Sentencing considerations

17.The maximum sentence for trafficking in dangerous drugs is that of a fine of $5 million and life imprisonment.

18.By the provision of section 159J(1)(b) of the Crimes Ordinance, Cap 200, the defendant is “liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence”.  The maximum sentence for an attempt to traffic in a dangerous drug is, therefore, also that of a fine of $5 million and life imprisonment.

19.The sentencing guidelines for trafficking in methamphetamine hydrochloride in large quantities are found in the case of HKSAR v Abdallah Anwar Abbas[3] [2009] 2 HKLRD 437.  For narcotic contents of 2,942 grammes, the applicable range is 23 to 26 years’ imprisonment.

20.An arithmetical application of the tariff would lead to a starting point of 298 months, and this is the starting point I adopt.

Aggravating factor

21.The defendant’s attempted act of receiving the parcel of drugs that was imported into Hong Kong can be viewed as colouring the trafficking with an ‘international element’, which has been found by the Court of Appeal to be an aggravating factor that would warrant an enhancement in sentence.  In cases of the imported drugs being more than one kilogramme, the enhancement would be no less than two years’ imprisonment[4].

22.The Court of Appeal, in the case of HKSAR v Ali Qasim [2020] HKCA 56; CACC 332/2018, examined how the presence of the “international element” should affect the sentence in cases of someone receiving a parcel sent from overseas.

23.In gist, the Court found that there can be variation in the degree of culpability in such receiving, which would affect whether the full two years’ enhancement should be applied.

24.The person who is a simple receiver may be less culpable than the person “who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels…”  In such a situation, the Court is of the view that the latter“may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession”, thus deserving of the full two years’ enhancement[5].

25.The Court then issued the following caution in the same paragraph:

“However, we would caution sentencers that simply because the label of ‘international element’ can be applied to a defendant’s trafficking of a kilogramme of heroin or cocaine narcotic because it has come across the border, and he is connected with the offence, does not automatically mean that he must receive an enhancement of sentence of 2 years’ imprisonment.”

26.In the present case, there is no evidence to suggest that the defendant had himself organised and made elaborate efforts to disguise and import the ‘ice’ through legitimate cargo channels.

27.Furthermore, the defendant, who has no previous criminal conviction record, is already facing a lengthy sentence, a full enhancement of two years may result in an “oppressive and overloaded sentence”[6].

28.As such, I find that the enhancement for the presence of an ‘international element’ should be set at 11 months[7].

Final sentence

29.The post-enhancement starting point is, therefore, 309 months.  The defendant is granted the full one‑third discount for his timely plea of guilty and sentenced to 206 months, or 17 years and 2 months’ imprisonment.

Mr Cheung Man Kwan Bobby, SPP, of the Department of Justice, for the Respondent

Mr Chu Po Tien David, instructed by Lo, Wong & Tsui, assigned by Director of Legal Aid, for the Defendant