HKSAR v. Mok Yan Ki

DCCC673/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 673 OF 2011

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Reasons for Sentence

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1.The defendant pleaded guilty to one count of trafficking in dangerous drugs and that of possession of a forged identity card.

2.The prosecution alleged that at about 11:00 am on 21 April 2011 the police observed that the defendant getting into a private car (with the registration number NU8144) at the car park of Mei Chung Court in Shatin.  When the defendant was about to drive the car away, he was intercepted by the police with a search warrant executed.

3.Upon body search on defendant, the police found an envelope (Exhibit E1) containing dangerous drugs in both powder and solid form (Exhibit E2 to E5).  Under caution, the defendant admitted that he had the drugs, both cocaine and ketamine, for sale.  He would get $150 per ‘round’. The police also found cash in the sum of $22,000 in the vehicle that the defendant was driving.

4.The defendant was escorted back to the police station.  From the defendant’s wallet, the police found cash in the sum of $7,500 and a forged HKID card which was in the name of the defendant but with the photo of another person. 

5.Under caution, the defendant confessed that the forged HKID card was provided by his boss.  In the cautioned video recorded interview, the defendant said that the said vehicle NU8144 was borrowed from his friend.

6.Chemical analysis revealed that Exhibit E3 comprises of nine plastic bags containing a total of 65.58 grammes of a powder containing 42.19 grammes of ketamine.  Exhibit E5 comprises of 13 plastic bags containing a total of 3.46 grammes of a solid containing 3.37 grammes of cocaine.  The HKID card no. Z734820(8) seized from the defendant was confirmed to be a forged one.

Mitigation

7.The defendant is aged 24 and had a clear record.  On the last occasion, the defendant claimed that one-third of the ketamine so seized was for his own-consumption.  I have made it clear that if there is no evidential basis for the defendant to suggest that, a Newton enquiry would be called for. 

8.Today, counsel for the defendant made it clear that, upon advice, the defendant does not want to have a Newton enquiry and hence mitigation followed.  The defendant was a graduate of the Polytechnic University having a BA degree in Fashion and Textiles.  He set up his own advertising company but the business of the company was not that good.  It was a man called Ah Leung who gave him the drugs and the forged HKID card. 

9.The reason for having the forged ID remained unclear, even though the defendant claimed that it was for the purpose of driving test. 

10.The defendant did not give any money for getting the drugs and he was asked to deliver the drugs.  The defendant tendered several mitigation letters to this court.  He wrote one himself in English expressing his remorsefulness.  In his letter, the defendant said he would swear to God that he would not break the law again and hope to have another chance to devote himself to make contribution to society.  The defendant’s mother wrote to plead for leniency for her son who was remorseful in committing this serious crime.  It was said, the defendant’s girlfriend would not abandon the defendant and they would get married upon the defendant’s discharge.  The defendant’s parents and his friends are in court today to show their support.

11.Counsel for the defendant submitted that a combined approach should be adopted.  She also urged the court to pass concurrent sentence on Charge 2 as she was instructed that the forged HKID card was part and parcel of the drug trafficking activity.

Sentence

12.The defendant is a young university graduate and had a clear record.  It was said that the defendant would receive $150 per ‘round’ for this trafficking activity.  It is worth to note that the police found cash $22,000 inside the car the defendant was driving.  Another sum of cash of $7,500 was found on the defendant.

13.He had a forged HKID card in his name but with a photo of another person.  I have inspected the HKID card which is of a high quality.  I do not accept what the defendant said to the police that the HKID card was for driving test.  I also do not accept that possession of forged ID card is part of parcel of the drug trafficking activity. 

14.The drugs so seized were contained in a total of 22 plastic bags with a street value of about $11,000.  The 1st charge involved two kinds of dangerous drugs, namely cocaine and ketamine. 

15.I have considered the case of HKSAR v Wong Kin Kau CACC269/2009, which effectively endorsed the approach adopted by a differently constituted Court of Appeal in Ko Ka Hing [2009] 4 HKLRD 856.  To simplify the sentencing process, I would adopt the combined approach in passing sentence in this kind of cases involving cocktail drugs.  Apparently in the present case, ketamine is the main drug with a quantity of 42.19 grammes.

16.In accordance with the sentencing guideline, 10 grammes to 50 grammes of ketamine will attract a sentence from 4 to 6 years.  On the other hand, a quantity of cocaine of up to 10 grammes will attract a sentence from 2 to 5 years.  Legally, I could use the starting point of 5½ years for the ketamine so seized.  However, given the defendant’s mitigation, I would use 5 years as the starting point in relation to the ketamine.  With the additional quantity of cocaine of 3.37 grammes, I would increase the sentence of Charge 1 to 5½ years.

17.The most important mitigation for the defendant was his guilty plea for which he is entitled to have one-third discount.  Hence for Charge 1, I sentence the defendant to 44 months.

18.As regards Charge 2, it involves an offence of a completely different nature.  The maximum sentence is 10 years on indictment.  There is no evidence to suggest that the defendant intended to use the forged ID card to obtain employment.  Nor is there evidence to suggest that the defendant had actually used the same. 

19.A sentence of 12 months is the normal starting point upon a plea of guilty.  Given the facts of the present case, I would adopt a starting point of 9 months and with the defendant’s plea.  The sentence is reduced to 6 months. 

20.I have considered the totality principle.  Given the nature of these offences, I take the view that the second sentence should be made consecutive to the first sentence.  That is to say, I sentence the defendant to 50 months’ imprisonment.