HKSAR v. Ho Kwok Kuen

DCCC1254/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1254 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty today to three charges. The 1st and 2nd charges relate to trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The 3rd charge is possession of apparatus fit and intended for smoking a dangerous drug.

2.The facts that the defendant has agreed to are very straightforward.  On 17 January 2005, the defendant was a target of the police who were waiting outside his residence.  After he was observed leaving his home he was stopped.  The dangerous drugs of Charge 1, that is 48.05 grammes of cannabis in herbal form, were found on his person. 

3.The dangerous drugs of Charge 2 and the apparatus of Charge 3 were found in the defendant’s bedroom during a home search conducted soon after his arrest.  The dangerous drugs of Charge 2 involved 294.47 grammes of cannabis in herbal form and 12.35 grammes of a powder containing 10.78 grammes of cocaine.  The defendant admitted using the apparatus found in his home for taking drugs for his own personal use.  The defendant admitted trafficking in dangerous drugs. 

4.The next day he was given police bail, and before he was to report back to the police he left Hong Kong for the Mainland and did not answer his police bail.  Nearly 7 years later he surrendered to the police.  He has during this period of time been in the Mainland.  Most significantly, he has in 2007 become a father.  

5.He explains in mitigation that, in short, he has had enough of being on the run, he is not able to live a normal life, he wants to take his punishment and start over.  This has happened after discussions with his family; I am sure as a result of becoming a father and having responsibility of a family.  He has supportive family in Hong Kong, namely elder siblings who are here in court to support him today.  

6.The reasons for committing these offences, acting as a drug mule, are all too often heard in this court.  The defendant himself developed a drug habit that needed supporting.  His income as a taxi driver at the time was insufficient, so like many of those involved in drugs, was forced to find a way to supplement his income to pay for more drugs.  

7.Traffickers will make use of people like the defendant and employ people like the defendant to act as drug mules. They will evade arrest whereas the defendant will bear all the risk, and in fact, as I have said, the police were targeting the defendant that day and he was caught red-handed.

8.I have considered the mitigation put forward, the facts of the case and the guidelines for drugs of both nature, and although the defendant has absconded for a period of time, I am sure his remorse is genuine and he is now accepting responsibility. 

9.The defendant is not a man of clear record but he has no previous trafficking dangerous drugs convictions.  He does have two convictions that relate to possession of dangerous drugs but I note they were in 1994 and both were subject to financial penalties.  

10.Mr Percy has very accurately recounted the authorities and the guidelines that the court must consider in sentencing traffickers of either herbal cannabis or cocaine. 

11.I have been referred to the authority of R v Chan Chi Ma [1987] for guidelines for those that traffic herbal cannabis.  I had also considered the authority of AG v Tun Shui Ming [1995] 2 HKCLR 129, as well as the authority of HKSAR v Char Lui [2001] HKLRD 95, and I do agree with Mr Percy that for the total herbal cannabis for Charges 1 and 2, a starting point of 3 months would be appropriate. 

12.Where cocaine is concerned, the authority of Lau Tak Ming [1990] 2 HKLR 370 is the one I have to consider, and on a strict mathematical approach, where 10.78 grammes of cocaine is concerned a starting point of 5 years would be appropriate.  Charge 2 is a combination of two drugs (a cocktail of drugs).

13.In sentencing, the court can either consider a combined approach or an individual approach where there is more than one drug in the charge, and I have referred myself to several authorities dealing with cocktail of drugs, including HKSAR v Leung Chun Pong [2009] 6 HKC 672 as well as HKSAR v Wong Kin Kau [2010] 4 HKC 443.  Often the combined approach is preferred.  However, in this case clearly the potency of cocaine is the much more serious drug of the two.  One only has to look at the starting point of 4 months versus 5 years to see the seriousness of trafficking cocaine. 

14.After considering the nature of both drugs and the guidelines for both drugs, I intend to take a global approach and consider a 5 year starting point for Charge 2 appropriate.    

15.Defendant, please stand up.  Ultimately for Charge 1, I will take a starting point of 3 months.  You have pleaded guilty, you are entitled to a discount of one-third.  For Charge 1, you will be sentenced to a period of 2 months’ imprisonment.  

16.For Charge 2, I will take a starting point of 5 years.  You have pleaded guilty, you are entitled to a discount of one-third. You will be sentenced to 3 years and 4 months for Charge 2. 

17.For Charge 3, I will take a starting point of 3 months’ imprisonment.  You are entitled to a discount of one-third for your plea.  For Charge 3, you are sentenced to 2 months’ imprisonment. 

18.I take into account the date of all three charges and the facts of the case and order all three charges to be served concurrently; that is a total of 3 years and 4 months’ sentence.