HKSAR v. Mok Kin Shing

HCCC 30/2019

[2020] HKCFI 2153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 30 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The accused was charged with two counts of trafficking in dangerous drugs, contrary to section 4(1a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

Count 1 alleges that he, on the 2 March 2018, at Room C, Flat 5, 1st Floor, Wing Ning Building, Nos 501-511 Shun Ning Road, Cheung Sha Wan, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 342.7 grammes of a solid containing 266.9 grammes of cocaine, and 107 grammes of a solid containing 73.5 grammes of ketamine.

Count 2 alleges that he, on the same day, at Room 1806, 18th Floor, Hoi Nga House, Hoi Lai Estate, Cheung Sha Wan, Kowloon, in Hong Kong, together with Kwok Yik-yee unlawfully trafficked in dangerous drugs, namely 14.45 grammes of a solid containing 12.35 grammes of cocaine and 0.91 grammes of a solid containing 0.77 grammes of ketamine.

The accused pleaded guilty to both counts before the Magistrate at the committal stage and was on 28 January 2019 committed to the Court of First Instance for sentence. He comes before me today for sentence, having confirmed his plea and admission of the Summary of Facts on 3 July 2020.

The facts giving rise to the offences may be summarised as follows: at around 3.40 pm on 2 March 2018, the accused was intercepted by customs officers as he was walking out of Flat 5 on the 1st floor of Wing Ning Building. Upon search, two keys were found on his person. The accused stated that the keys were for Room C in Flat 5 on the 1st floor of Wing Ning Building.

Customs officers gained entry to the room with the use of the keys. Upon search of the room, the officers found a total of 15 transparent resealable plastic bags containing a total of 342.7 grammes of a solid containing 266.9 grammes of cocaine, three transparent resealable plastic bags containing a total of 107 grammes of a solid containing 73.5 grammes of ketamine, two keys, three mobile phones, cash of HK$630 and a quantity of drug packaging paraphernalia, including a bundle of resealable plastic bags, a vacuum packaging machine, an electric sealer and two electric scales. These form the subject matter of Count 1.

At the time of the offence the estimated street value of the drugs seized in relation to Count 1 was about $400,996.30.

The accused admitted under caution that the substances found were cocaine and ketamine and the drugs belonged to him. He admitted that the packaging paraphernalia were for him to package the drugs. He also admitted that the keys found inside the room were for the doors of Room 1806, 18th floor, Hoi Nga House, Hoi Lai Estate, Cheung Sha Wan.

At the time of his arrest the accused was in possession of cash of HK$6,920 and a black iPhone.

Later on the same day, customs officers gained entry to the premises at Room 1806 on the 18th floor of Hoi Nga House. Upon search of the premises, in one of the rooms the officers found a plastic bag inside the rubbish bin. This plastic bag contained a total of 59 transparent resealable plastic bags containing a total of 12.1 grammes of a solid containing 10.1 grammes of cocaine, another plastic bag containing 2.35 grammes of a solid containing 2.25 grammes of cocaine and a third plastic bag containing 0.91 grammes of a solid containing 0.77 grammes of ketamine. These formed the subject matter of Count 2.

At the time of the offence the estimated street value of the drugs seized in relation to Count 2 was about $15,049.61.

The accused admitted under caution that he resided at the room in question, that the substances found were cocaine and they belonged to him.

In a subsequent video-recorded interview, the accused denied having trafficked in dangerous drugs.

The overall quantity of drugs seized in relation to Counts 1 and 2 was 357.15 grammes of a solid containing 279.25 grammes of cocaine, and 107.91 grammes of a solid containing 74.27 grammes of ketamine. The total estimated street value was about $416,045.91.

The accused now admits and accepts that at the material time he was knowingly in possession of all the dangerous drugs seized in relation to Counts 1 and 2 for the purpose of unlawful trafficking.

The accused is now 23 years of age. He was 20 years old at the time of the offences. He has no previous criminal conviction in Hong Kong. At the time of his arrest on 2 March 2018, he resided at Hoi Nga House address, together with his family and his girlfriend. Urine test conducted on the accused by the CSD officers on 6 March 2018 revealed positive result for cocaine.

In mitigation, counsel informed the court that the accused was born in China and he came to Hong Kong at the age of about four years old. At the time of the arrest for the present offences, he worked as a casual scaffolding worker at construction sites earning about $700 a day. And at that time he was living together with his family and his pregnant girlfriend at the location where the second batch of drugs were found. His father mainly work on the mainland. His mother work as a security guard in Hong Kong and his younger brother was a 14-year-old Form 2 student.

Counsel informed the court that the accused start to consume cocaine since 2017. Counsel submitted that he committed the present offences due to the desire to earn quick extra money because of the impending birth of his child. His child is now about 18 months old and he, indeed, had got married with his girlfriend after he was remanded in prison custody. Counsel urged this court to exercise leniency so that he can reunite with his family members and the baby child soonest.

In any event, counsel stressed that the accused is remorseful and he pleaded guilty at the earliest opportunity. In mitigation, counsel also submitted one letter written by the accused, one letter written by his mother and also the birth certificate of the child. And according to the mother’s letter, the accused had all along been a good child at home. He was very filial and has been very sensible since young age. His mother urged this court to exercise leniency to allow the accused to reunite with his family soonest. In his own letter to this court, the accused stated that he committed the offences to earn quick money. He is deeply remorseful and he said he would redeem himself and improve himself by studying whilst in custody. And counsel also urged this court to take into account the unusual family and personal circumstances of the accused, that extra reduction of sentence should be given as an exercise of discretion.

And, in mitigation, counsel submitted that some amount of the cocaine in relation to the second count were for the accused’s own consumption. And I will come back to this matter at a later time.

In sentencing, I have considered the whole circumstances of the case, including its natures and facts, in particular, the type and quantity of the drugs involved, the background of the accused and the mitigation put forward on his behalf.

The accused had trafficked in two types of dangerous drugs, namely cocaine and ketamine. For sentencing involving trafficking in cocaine, it has been held that the guidelines laid down for heroin should be applied. In the case of R v Lau Tak Ming [1990] 2 HKLR 370, the Court of Appeal held that trafficking in heroin where the narcotic content is between 200 grammes and 400 grammes, a sentence between 12 to 15 years’ imprisonment should be imposed after trial. On the other hand, the Court of Appeal held in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, that in a case of trafficking in ketamine where the narcotic content is between 50 to 300 grammes, the sentence should range from 6 to 9 years’ imprisonment after trial. I see no reason in the present case to depart from these tariffs.

I have had regard to the principles enunciated by the Court of Appeal in the cases of HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Wong Kin Kau [2010] 4 HKC 443, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Wan Lau Mei, CACC 389/2013, HKSAR v Chan Yuk Leong, CACC 318/2013, and HKSAR v Islam Majharul [2020] HKCA 300 or CACC 67/2019.

Having regard to the proximity in time and the nature of the drugs, I will sentence the accused on the basis that he was in overall possession of the drugs found at the two locations. I will determine the appropriate overall sentence for the total amount of drugs involved before imposing the sentence for the individual counts.

According to the sentencing guidelines for 279.25 grammes of cocaine narcotic, the starting point is about 13 years and 2 months’ imprisonment. According to the sentencing guidelines for ketamine, 74.27 grammes of ketamine narcotic corresponds to a starting point of about 6 years and 4 months’ imprisonment.

To sentence the accused on the individual approach would produce a sentence of about 19½ years’ imprisonment, which would be too high and does not properly reflect the justice of the case. To achieve a reasonable and realistic sentence, I will adopt the combined approach which involve upward adjustment from the starting point of the base drug. In the present case, both drugs attract heavy sentence, but there is dissimilarity in the level. As cocaine is the more serious drug in terms of its potency and the sentencing tariff, I will use cocaine as the base drug in the calculation.

As stated above, the starting point for trafficking in 279.25 grammes of cocaine narcotic is 13 years and 2 months’ imprisonment. In determining the upward adjustment for the remaining 74.27 grammes of ketamine narcotic, I examined the overall starting point by checking it against the absurdity test, the conversion test and the ratio test. Under the absurdity test, the overall starting point would be about 14 years and 3 months’ imprisonment. Under the conversion test, the overall starting point based on the cocaine sentencing guidelines is about 13 years and 5 months’ imprisonment, and based on the ketamine sentencing guidelines would be 13½ years’ imprisonment. The overall starting point based on the ratio test is about 13 years and 3 months’ imprisonment.

Taking all these matters into account, I consider it fair to make an upward adjustment of 4 months, resulting in an overall starting point of 13½ years’ imprisonment, that is, 162 months.

In the present case, two types of drugs were seized at the same time, even though separately packed and not in a prepared mixture. Having regard to the two possible aggravating features, namely (1) the ability of the trafficker to cater to a wider market and (2) the effect on users of combination of dangerous drugs, I further enhance the starting point by 3 months to 13 years and 9 months’ imprisonment, that is, 165 months.

I now come to counsel’s submissions on self-consumption. It was submitted that some of the cocaine in relation to Count 2 were for the accused’s own consumption. Counsel did not identify the amount, but leave this matter in the hands of the court to decide.

The guiding principles for a sentencing court have been set out in a number of Court of Appeal decisions, including HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, HKSAR v Tsoi Man Chun, CACC 414/2015, HKSAR v Kong Tat Lung [2017] 6 HKC 448 and HKSAR v Cheung Wai Man [2019] 1 HKLRD 817.

The factors to be considered by a sentencing court in establishing a claim for self-consumption, as suggested in Wong Suet Hau, include:

(a) the quantity of drugs and their value;

(b) the general circumstances, including how the drugs are wrapped and how many wraps or packages are found;

(c) where the drugs have been discovered, whether at residential address owned or rented in the trafficker’s own name or in someone else name or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs, and on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.

Usually a court will be able to determine the issue from these factors without a Newton hearing. It needs to be borne in mind that possession of the drugs for self-consumption itself carries a term of imprisonment with possible enhancement for the latent risk that the drugs will be accessed by or distributed to others.

In the case of Chow Chun Sang, the Court of Appeal held that:

“When all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point.”

In determining the issue of self-consumption, the sentencing court must first find that a significant proportion of the drugs were to be consumed by the defendant. If he does not meet this threshold, he is not entitled to the discount suggested in Chow Chun Sang. If he does meet it, the sentencing court must then assess the amount of discount that it should award to him from the adopted starting point. In any event, a sentencing court has a discretion to discount a sentence to reflect an element of self-consumption.

It is fundamental that a claim of self-consumption needs to be established to the sentencing court’s satisfaction. Hence, a sentencing court must have a proper factual and evidential basis in accepting the contention that a significant proportion of the drugs were for the accused’s own consumption. That is, the proportion of the drugs to be consumed by the accused is of a level of significance that is commensurate with a percentage within the range. In simple terms, the greater the proportion, the greater the percentage within the range. But this needs to be based on credible and reliable information and material that fully and properly substantiates the proportion of drugs intended for self-consumption. Mere assertions by counsel from the Bar table will generally not suffice. It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form.

In the present case, counsel for the accused submits that there is a proper basis for the court to accept the accused’s claim that he has some of the cocaine in Charge 2 for his own consumption. Counsel did not consider it necessary to conduct a Newton hearing in support of the assertion. Instead, counsel rely on the urine test report confirming that the accused was test positive for cocaine, which counsel said provide the basis for the court’s acceptance of the claim.

Taking into account the fact that at the time of his arrest and in subsequent interview, the accused make no mention of self-consumption at all, the number of the packets of cocaine found in relation to Count 2, and the quantity of the cocaine involved, I am not satisfied that he had a significant proportion of the drug for his own consumption. Indeed, counsel did fairly accept that even if this court were to accept that all the cocaine in Count 2 were to be used for his own consumption, the amount itself would not be of significant proportion giving the bulk of the drugs, especially cocaine, involved in the charges. I therefore would not award any further discount for this matter.

The accused pleaded guilty at the earliest opportunity. He is entitled to a one-third discount of his sentence, resulting in a final sentence of 9 years and 2 months’ imprisonment, that is, 110 months. I have taken into account his personal and family circumstances and his youth at the time of the offences. I do not see any good reason to exercise my discretion to award him any further reduction of sentence. Having considered the whole circumstances, I consider that one-third is the extent of discount the accused is entitled to in the present case.

I now proceed to determine the sentence to be imposed on the individual counts. On Count 1, given the quantity of drugs and the presence of packaging paraphernalia, I adopt a starting point of 13½ years’ imprisonment. Allowing the full one-third discount for the early plea, the sentence appropriate for this count is 9 years’ imprisonment. On Count 2, I adopt a starting point of 5 years and discount it by one-third for the accused guilty plea. The resulting sentence for this count is 3 years and 4 months’ imprisonment. Taking into account the totality principle, I order that two months of the sentence imposed for Count 2 to be served consecutively to the sentence imposed for Count 1. The resultant sentence is one of 9 years and 2 months’ imprisonment.

Accused, please stand up. For the matters I have mentioned, I sentence you to an imprisonment term of 9 years and 2 months.