HKSAR v. Mok Ka Yui

DCCC 962/2014 & 52/2015
(consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.962 OF 2014 & 52 OF 2015 (consolidated)

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of trafficking in a dangerous drug, both contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Outline of facts

DCCC 962/2014

2.The defendant was intercepted by two Police officers outside no.158 Cheung Sha Wan Road in Sham Shui Po at around 4:06am on 25September 2014. Upon search, a re-sealable plastic bag containing 50 small re-sealable plastic bags each containing cocaine were found inside a sling bag that the defendant was carrying. Subsequent examination by the Government Chemist confirmed that the 50 plastic bags contained a total of 10.2 grammes of a solid containing 7.41 grammes of cocaine.

3.The defendant was arrested for possession of the drugs. Under caution, the defendant claimed that the cocaine was for his self-consumption. The street value of the cocaine was estimated to be around $10,904. At the time of his arrest, the defendant had cash of $54.60 and 3 mobile phones with him.

DCCC 52/2015

4.One month and 14 days later, the defendant was again intercepted by Police officers while acting furtively on the street. The defendant pushed one of the plainclothes officers away and attempted to flee. Police officers immediately restrained the defendant who kept on struggling. During the struggle, the defendant took out 2 plastic bags of suspected dangerous drugs from his left jacket pocket and threw them to the ground.

5.Meanwhile a passerby, Mr. Bhatti, mistakenly thought that the Police officers and the defendant were fighting and went up to try to stop them. After finding out what was actually going on, he helped the Police officers to pick up the two plastic bags and handed them over. The defendant was eventually arrested for trafficking in dangerous drugs. Under caution, the defendant claimed that the drugs were for his self-consumption. Upon search, the defendant had cash of $13,641.80 and 2 mobile phones on his person.

6.Each of the two plastic bags was later found to contain 30 and 50 bags of dangerous drugs respectively. Upon examination by the Government Chemist, it was confirmed that they had a combined total of 18.1 grammes of solid containing 11.08 grammes of cocaine. The street value is estimated to be $17,123.

7.At paragraph 7 and 13 of the summary of facts that was read out to the defendant after he entered his guilty plea and which had been admitted to by the defendant in court, it is stated that at the material times, the defendant possessed the cocaine for the purpose of unlawful trafficking.

Previous convictions

8.The defendant has 4 criminal records. He was first sentenced to 24 months’ probation in August 2004 when he was 14 years old for 4 charges of burglary. He was found to be in breach of that probation order in June 2005 and was sentenced to the Rehabilitation Centre. The defendant was next fined $500 when he was 17 for one charge of common assault. In July 2009, the defendant was sentenced to the Drug Addiction Treatment Centre for possession of dangerous drugs. He was last discharged from the Centre on 3 February 2012. The present convictions are his first trafficking in dangerous drugs convictions. 

Mitigation

9.The defendant is 24 years and 7 months old. He was born in Guangzhou and came to Hong Kong in 1998, and is educated up to form 3 level here. The defendant is single and lives with his 65-year old retired father; 58-year old mother who works as a waitress; his 22-year old younger brother who works as a delivery worker, and his 14-year old younger brother who is a form 2 student.

10.According to the defendant’s antecedent statement, he has been addicted to the drug ‘ICE’ for more than 7 years, and to cocaine for about 2 years.

11.The defendant stated in mitigation that he relapsed to the use of cocaine because he was in excruciating pain a lot of the time as a result of duodenal ulcer that he suffers. According to the medical report submitted, the defendant underwent surgery for a perforated duodenal ulcer on 8 May 2014, which was about 4 months before his commission of the offence in charge 1. The defendant was however still in pain after the surgery and that was why he continued to used cocaine to try to alleviate his suffering.

12.As a result of the unrelenting pain, the defendant was not able to work properly as a transportation worker. He therefore resorted to trafficking in dangerous drugs to supplement his income.

13.Mr. Cheung in mitigation submitted that a “small proportion” of the cocaine involved in the present charges were for the defendant’s self-consumption. Mr. Cheung did not specify an amount.

14.Mr. Cheung referred to the case of HKSAR v Wong Suet Hau, CACC 366/2000 and drew my attention to paragraph 34 where the Court of Appeal gave guidance on how to deal with situations where it is suggested in mitigation that ‘a significant proportion of the drugs was intended for’ self-consumption and not for trafficking.

15.Mr. Cheung, very fairly, conceded that the defendant is not suggesting that a significant proportion was for his self-consumption, he only seeks to try to persuade the court to give him some credit for the fact that a small proportion of the drugs was for his consumption.

Sentencing guidelines

16.Sentencing guidelines for trafficking in cocaine is the same as the guidelines for trafficking in heroin contained in R v Lau Tak-ming and Others [1990] 2 HKLR 370, as confirmed in Attorney General v Pedro Nel Rojas [1994] 1 HKC 342, CAAR 15/1993.

17.In relation to charge 1, the amount of cocaine involved is 7.41g, which falls within the sentencing band of 2 to 5 years’ imprisonment.

18.In relation to charge 2, the amount of cocaine involved is 11.08g, which falls within the sentencing band of 5 to 8 years’ imprisonment.

Sentence

19.The maximum sentence for trafficking in dangerous drugs is that of life imprisonment.

20.Based on the defendant’s antecedent statement and the defendant’s sentence to the Drug Addiction Treatment Centre and his release from the Centre in February 2012, I find that there is evidence to support the defendant’s claim that a ‘small proportion’ of the cocaine in the present case was for his self-consumption.

Charge 1

21.For 7.41g of cocaine, after taking into consideration the defendant’s suggestion that a ‘small proportion’ of the cocaine was for his self-consumption, I apply the guidelines and adopt a starting point of 48 months’ imprisonment.

Charge 2

22.For 11.08g of cocaine, again, I accept that a ‘small proportion’ of the cocaine was for the defendant’s self-consumption. I find however that there is a serious aggravating factor in the commission of this charge in that it was committed while the defendant was on bail after his arrest for the offence in charge 1. I would therefore first of all  apply the guidelines and adopt a starting point of 57 months’ imprisonment, but increase the sentence by 3 months to that of 60 months’ imprisonment in consideration of the aggravating factor.

Mitigating factors

23.I do not accept that the defendant’s health condition and his choice of cocaine as a painkiller as a mitigating factor. I find that the only mitigating factor is his guilty plea for the charges.

24.After granting him the full one-third discount for his guilty pleas, the defendant is sentenced to 32 months and 40 months’ imprisonment on charge 1 and 2 respectively.

Totality

25.The total sentence of the two charges would be 72 months’ imprisonment after plea, which I find would be too severe in the circumstances if they are to be served wholly consecutively.

26.The total quantity of cocaine involved in the two charges is 18.49 grammes, which would have attracted a starting point of around 69 months’ imprisonment had it been committed on one single occasion, without taking into consideration the factor of self-consumption or the above mentioned aggravating factor, which would have resulted in a sentence of 46 months’ imprisonment after plea.

27.Having taken a step back to consider the circumstances, I will order that 14 months of the sentence in charge 1 to be served consecutively to the sentence in charge 2, the balance concurrently, making a total of 54 months’ imprisonment.