HKSAR v. Mok Ho Leung

DCCC 311/2020

[2020] HKDC 689

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 311 OF 2020

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REASONS FOR SENTENCE

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1.This is a case of police stop and search in the streets leading to the discovery of drugs.

2.The defendant, a 20-year-old young man, pleaded guilty before me to one count of drug trafficking; the drugs involved are 2.98g of a solid containing 1.34g of cocaine and 11.48g of a solid containing 7.98g of fluorodeschloroketamine, which is a drug similar to ketamine in its effect and potency.

3.Shortly after mid-night on 13 February 2020, the defendant took to his heels on seeing the approach of police officers outside Dragon Centre, Sham Shui Po. After a brief chase, the officers got hold of the defendant who then put up a struggle.

4.The defendant was holding a wad of banknotes (about $10,000) in one hand and a handbag in the other, but soon everything dropped to the ground including the defendant’s handbag during the struggle.

5.When the situation came under control, the officers found cash totalling $74,503 in notes and coins, and in the defendant’s right front trousers pocket, they found 15 bags of fluorodeschloroketamine (14 of them in one larger plastic bag) and in the handbag, they found two bags one containing 4 bags of cocaine and the other 14 bags of cocaine.

6.The street value of the drugs seized is estimated to be about $5,500.

7.Notwithstanding his young age, he has already had two very serious convictions – the first in 2014 when he was put on probation for arson and in 2017, he was sent to prison for 38 months for drug trafficking. He committed similar offence just over a year after his release from prison in January 2019.

8.He is single and lives with his elder sister. The sister and her husband are in court today to show concern and support for him. In her letter to the court, she described her brother a good-natured kid who is always willing to help out. In order to raise money to pay off the medical expenses of his father, he foolishly committed the present offence. He knew he made a big mistake this time and when she visited him in the prison, she could detect some positive changes in him.

9.The court heard that he had reformed himself and worked really hard to earn a living after release from prison. He used to do two jobs as a waiter - one in a Thai restaurant full time earning about $15,000 a month, and the other in Hermes restaurant part-time earning about $10,000 a month. 

10.“Due to social event and disturbance occurred in 2019, the restaurants were closed and the defendant was unfortunately made redundant in December 2019. He would only rely on savings to make ends meet,” counsel for the defendant, Mr Cheung said.

11.The reason for his re-offending, Mr Cheung said, was because he wanted to make quick money in order to pay for the medical expenses for his family members, it was not done for personal gain.

12.He now realized how wrong he was and certainly he has learned a hard lesson in this case, Mr Cheung continued, the defendant would want to be a useful person and would study hard in prison and hope to make a contribution to the society in the future.  

13.Mr Cheung suggested that the court should adopt the “combined approach” to impose the sentence with which I am inclined to agree.

14.There are different approaches in sentencing for a cocktail of drugs like in the instant case and the Court of Appeal said in the case of Yip Wai Yin CACC 80/2003 that “Whichever approach is appropriate will depend on the circumstances of the case, but we are of the view that the combined approach will often be the correct one to enable the judge to sentence fairly, realistically and in a common-sense manner.”

15.There are two types of drugs in the instant case - cocaine and ketamine with the cocaine being the more potent or harmful one.

16.I would take cocaine as the base of the sentence, here 1.34g would attract a term of 2 years 5 months, and I would make an upward adjustment to take into account the other drug, i.e. 7.98g of ketamine (bearing in mind this amount alone would attract a term of 3 years and 7 months).

17.In adopting the combined approach involving a cocktail of drugs, the court may take into account two possible aggravating features:

1)- The ability of the trafficker to cater to a wider market;

2)- The effect on users of combinations of dangerous drugs.

18.Taking all these into account, I consider the overall sentence should be one of 4 years.

19.The Court of Appeal has said time and again that drug trafficking is a very serious offence, clear record and young age do not constitute significant mitigating factors.

20.Besides, the defendant in the instant case committed drug trafficking for a second time; clearly, he has not learned anything from his past wrongdoing.  

21.His only substantial mitigation is his guilty plea which is timely, so he is entitled to a one-third discount. The starting point of 4 years is reduced to 32 months.

22.There being no reasons for any further reduction in sentence, the defendant is therefore sentenced to 32 months’ imprisonment.