HKSAR v. Ho Kwok Kuen

HCCC 363/2019 & HCCC 186/2020

(Heard together)

[2021] HKCFI 758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 363 OF 2019 & 186 OF 2020

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

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COURT: Defendant, you appear before me on two separate cases for sentence. One of those cases is HCCC 363/2019 and the other case is case number HCCC 186/2020.

It has been agreed by your counsel, Mr Keith Fung, that both cases shall be heard together in regard to your sentence. In HCCC 363/2019, the prosecution is represented by Senior Public Prosecutor Ms Sheroy Tam and in HCCC 186/2020, the prosecution is represented by Mr Michael Tsang, acting Senior Public Prosecutor. It is appropriate, as agreed by counsel, that I shall give one set of reasons for sentence in regard to both cases. However, I shall deal with each case separately and then give you a totality of sentence. Let me first deal with case number 363 of 2019, which is first in case number but not in time.

Defendant, on 28 October 2019, you pleaded guilty before a magistrate at the Eastern Magistracy to two charges of trafficking in dangerous drugs. The 1st charge, you admitted to trafficking in 23.7 grammes of a solid containing 13.8 grammes of cocaine on 29 January 2019 outside No 18A, Kan Tau Tsuen, Sha Tau Kok Road, Ma Mei Ha, Fanling. With respect to the 2nd charge, you also admitted to trafficking in 111.81 grammes of a solid or powder containing 68.13 grammes of cocaine on 30 January, this time on the 1st Floor of No 22 Kan Tau Tsuen in the same area. That address in that 2nd charge was the home where you lived.

In relation to the Summary of Facts, it was at around 10.30 pm on 29 January 2019, a police officer laid ambush near your home. At that time, he saw you walk out of your home towards a parked private car. That is where you were then intercepted outside the address in the 1st charge, that is, 18A Kan Tau Tsuen by the officer. At that time, you were carrying a black shoulder bag and inside this shoulder bag was one plastic bag containing the drugs as stated in Charge 1. You were arrested for possession of dangerous drugs, and under caution, you admitted that the cocaine was for self-consumption and you asked for a chance. At the time of your arrest, you had with you one mobile phone and $3,700 in cash.

After your arrest, the officers executed a search warrant at your home. Inside your home, in a storeroom in a refrigerator, they found $31,000 cash and nine sealed foil packets containing a powder which was later confirmed to be benzocaine. They also found in a red plastic box more powder containing benzocaine, powder containing phenacetine and 80 packets of drugs which were cocaine as stated in Charge 2. They also found 153 unused resealable transparent plastic bags, a silver spoon, two marker pens and on the floor next to this red box was a digital scale and a sealing machine.

At 1.01 am, you were arrested for trafficking in dangerous drugs and under caution, you admitted you possessed the cocaine for self-consumption.

In the video-recorded interview taken later that day between 4.16 pm and 5.25 pm, you admitted that you were unemployed and a CSSA recipient. You confirmed that all the drugs seized in your home and on your person were cocaine. You said you used to be a cocaine addict and would consume cocaine by rolling them into cigarettes. You have rented the premises yourself and had lived there for half a year together with your wife and son who would come to Hong Kong occasionally by way of two-way permit. You refused to answer all questions in relation to the packaging paraphernalia found in the storeroom.

The street value of all the drugs seized at the material time was assessed to be $149,197.

You now admit you were knowingly in possession of those drugs seized for the purpose of unlawful trafficking.

In regards to your antecedents, you are 54 years of age and have reached Form 3 secondary education. At the time of your arrest, you were unemployed. You were married and you have 10 previous convictions, five of which are related to dangerous drugs, two of those related convictions are similar to the present charges of trafficking in dangerous drugs, and one in relation to possession of equipment fit and intended for smoking, injecting and inhaling dangerous drugs. Your latest conviction was in 2011.

Mr Fung has mitigated on your behalf and he has submitted his written mitigation. He has also placed before me today a medical report dated 3 February 2021 from the Correctional Services Department whereby I am informed that you were admitted into hospital whilst in remand at Lai Chi Kok to the Queen Mary Hospital between the date of 19 October to 26 November 2020 as you had suffered left ischemic stroke. It lists out here that you have past health of hypertension, diabetes mellitus, hyperlipidemia, chronic active hepatitis B, fatty liver disease, gallstone and glaucoma. It states here in this medical report that you were an ex-drug abuser of cocaine, a smoker but non-drinker.

Mr Fung has urged upon me in his mitigation to take into account your medical condition and to give you some reduction or allowance in respect all your medical condition. He accepts you have similar previous convictions but asks me to be as lenient as I can allow.

The guideline case for trafficking in cocaine is that in Lau Tak Ming. The drugs in this case, 363, in Charge 1 was the amount of 13.8 grammes of cocaine, and the drugs in Charge 2 was 68.13 grammes of cocaine. The total drugs therefore in both charges amount to 81.93 grammes of cocaine.

In sentencing you for the total amount of drugs in respect of both charges, had you been convicted after trial, I would have taken a starting point of 8 years and 9 months’ imprisonment.

You have pleaded guilty at the earliest opportunity and that is your only and strongest mitigating factor and that sentence shall be reduced by one-third and you will be sentence to 5 years and 10 months’ imprisonment in total for case No 363 of 2019.

Let me turn to deal with the individual charges in 363/2019. In Charge 1, you were trafficking in 13.8 grammes of cocaine. Had you been sentenced after trial, I would have taken a starting point of 5 years’ imprisonment. Giving you the full one-third discount for your plea of guilty at the earliest opportunity, that sentence is reduced to 3 years and 4 months’ imprisonment.

For Charge 2, you were trafficking in 68.13 grammes of cocaine. Had you been convicted after trial, I would have taken a starting point of 8 years 3 months’ imprisonment. Giving you full credit for your plea of guilty at the earliest opportunity, that term should reduce to 5 years and 6 months’ imprisonment.

To reflect the total term of 5 years and 10 months’ imprisonment, I order 4 months of Charge 1 to run consecutive to Charge 2, making it 5 years and 10 months and the remainder of the term to run concurrently for case No 363 of 2019.

I should now turn to deal with case No HCCC 186/2020. Defendant, you have pleaded guilty before a magistrate at the Eastern Magistracy on 10 August 2020 to a charge of trafficking in dangerous drugs. You admitted that on 24 May 2018, near Exit C, Fanling MTR Station, Fanling, together with male Mok Ngo-hin, you unlawfully trafficked in 999 grammes of a solid containing 810 grammes of cocaine. I have already dealt and sentenced Mok Ngo-hin in case No HCCC 385 of 2018.

In regard to the Summary of Facts in this case, at around 11.30 pm on 24 May 2018, Mok Ngo-hin was intercepted by a customs and excise officer near the exit of the Fanling MTR. Mok was found to be carrying a bag containing another plastic bag which contained the drugs as stated in the charge.

The estimated street value of the drugs in possession of Mok was $1,083,915.

Mok was charged with trafficking and pleaded guilty. I have sentenced him already. Mok had given non-prejudicial statement to the Customs and Excise Department stating that it was you who instructed him to traffic in the subject dangerous drugs. Mok had therefore given positive assistance to the authorities, as a result of which you were arrested and charged and have now pleaded guilty to this offence.

In regards to the non-prejudicial statement of Mok, in summary, Mok stated that it was you who instructed him to traffic in dangerous drugs. This was the first time Mok had worked for you and he would have received a reward of $30,000 from you for collecting the drugs in question. Mok had informed the authorities that there were messages between you and him in his mobile phone. These messages were successfully retrieved from Mok’s mobile phone and the record showed that you had sent several messages to Mok on the date in question instructing Mok to collect the drugs in question.

There is no dispute by you that the number in Mok’s phone was your number who was a subscriber of that number. You admit and accept at the material time, you together with Mok unlawfully trafficked in 810 grammes of cocaine on 24 May 2018.

I have dealt with your antecedence already in case No. 363 of 2019 and I shall not repeat your antecedence. In my sentence in respect of Mok on 20 October 2020 for the same charge that you are facing in 186, I noticed that Mok had assisted the authorities in telling them that you had recruited him to traffic in drugs, although you were not the one who had physically handled the drugs.

In this case, there can be no dispute that you in this, defendant, were a more senior player in the drug trafficking chain. You had, first of all, met Mok and introduced him or recruited him to traffic in drugs. You instructed him where to collect the drugs and would be paying him $30,000.

In the case of Abdallah, the Court of Appeal there held that it would be an aggravating factor calling for an enhancement of the starting point where the trafficker is shown to be a mastermind or senior player, such as a financer in a syndicate. In this case, I do consider you to be a more senior player. You were not the mule or the courier taking the drugs around.

Your counsel, Mr Fung, has submitted to be the case of Ho Pak Hong, CACC 153/2019, whereby McWalters JA, in a quite recent judgment and on 9 November 2020, stated at paragraph 54:

“I noted there was no dispute that the evidence clearly revealed that the applicant was higher up the drug trafficking chain. He was a warehouseman, storing drugs and employing minors to distribute them to others. Given the quantities involved, he was not distributing them to the end users but presumably to retail suppliers of drugs. These being so the judge should have adopted a higher starting point to reflect the applicant’s more serious role as a drug trafficker. The arithmetic starting point is for the simple courier, for the lowest level of drug-trafficker.”

In the case that you were charged with Mok, you were not the simple courier and not the lowest level of drug trafficker. You played a more senior role. And for that purpose, I intend to enhance the starting point.

The quantity of drugs that you were trafficking in in this case was 810 grammes. Had you been convicted after trial, I would have taken a starting point of 21 years’ imprisonment. This was in fact the same starting point I took for Mok. In regard to the aggravating factor of you taking a more senior role or senior player in this drug trafficking, I intend to enhance your sentence by 3 months’ imprisonment. That would make a starting point of 21 years and 3 months’ imprisonment. I will not enhance the sentence for your previous drug trafficking offences because those offences took place a long time ago in 2011. I also am not going to give you any further reduction for your medical illness as it is often been said that reductions for medical illness is not appropriate in very, very serious cases such as this.

There are no further mitigating circumstances, such as to reduce your sentence and I take the starting point of 21 years and 3 months’ imprisonment. Giving you full credit for your plea of guilty at the earliest opportunity, I discount that by one-third and you shall be sentenced to 14 years and 2 months’ imprisonment.

Now, clearly, you have committed two separate trafficking offences, that is, one in case No 363 of 2019 and the other in 186 of 2020. I look at the principle of totality on whether to sentence you concurrently or consecutively. You had, in these two cases, trafficked in a total 891.93 grammes of cocaine. That means the total drugs in 363 of 2019 was 81.93 grammes of cocaine and in the case of 186 of 2020, the total drugs there was 810 grammes of cocaine. Now, had you been convicted after trial of trafficking in 891.93 grammes of cocaine, I would have taken a starting point of 21 years 6 months’ imprisonment, and giving you full credit for your early plea of guilty and discounting that term by one-third, you will be sentenced to 14 years and 4 months’ imprisonment. To reflect that total sentence, I will therefore order 2 months’ imprisonment in case No 363/19 to run consecutive to 186 of 2020, making the

total term you shall serve to be 14 years and 4 months’ imprisonment.