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R v Mok, Hin Lok

R v Mok, Hin Lok

Case [2017] NSWDC 314 13 October 2017

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v MOK, Hin Lok [2017] NSWDC 314
Hearing dates: 22 September 2017
Date of orders: 13 October 2017
Decision date: 13 October 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full-time custodial sentence. For orders see [105]

Catchwords: CRIMINAL – SENTENCE – Knowingly take part in an attempt to manufacture or produce a prohibited drug – methylamphetamine – large commercial quantity – 88.5 kg attempted to be manufactured – Chinese national – 39 years old – no prior criminal convictions – telephone intercepts – offender’s role was that of a ‘cook’ in the manufacture but was not the organiser nor did he source the pre-cursors – limited diminution of criminality where police prevented the drugs being disseminated into the public – criminality at the lower end of the middle-range – no mental or physical health conditions – no grounds for the diminution of weight for general or personal deterrence – no proof of non-exculpatory duress – inadequacy of sentencing statistics – full discount for the utilitarian benefit of the early plea of guilty – special circumstances resulting from the difficulty faced by the offender while in custody.
Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: AB v R [2013] NSWCCA 273
AD (2008) 191 A Crim R 409
Hill v R (2010) 244 CLR 520
Hristovski v R [2010] NSWCCA 129
Knight v R [2015] NSWCCA 222
Markarian v R [2005] HCA 25
Muldrock v R (2011) 244 CLR 120
R v Bloomfield (1998) 44 NSWLR 734
R v DW [2012] NSWCCA 66
R v El-Azzi [2004] NSWCCA 455
R v Gao [2007] NSWCCA 343
R v Henry and Ors (1999) 46 NSWLR 346
R v OPA [2004] NSWCCA 464
R v Spaliviero (unreported NSWCCA 15 December 1993)
R v Pedavoli (2002) 128 A Crim R 137
R v S (2000) 111 A Crim R 225
R v Thomson & Houlton (2000) 49 NSWLR 383
The Queen v Pham (2015) 256 CLR 550
Ticknius v R [2011] NSWCCA 215
Category: Sentence
Parties: Regina (Crown)
Hin Lok Mock (Offender)
Representation: Counsel:
Ms Gallagher (DPP Solicitor)
Mr Coyne (Counsel)

File Number(s): 2016/00025208
Publication restriction: Nil

SENTENCE

HIS HONOUR: Hin Lok Mok today appears for sentence in relation to an offence to which he pleaded guilty at the Local Court, which is an offence of knowingly take part in an attempt to manufacture or produce a prohibited drug. Specifically it alleges that the offender between 18 January 2016 and 25 January 2016 at Campsie did knowingly attempt to take part in the manufacture of an amount of a prohibited drug to wit 88.5 kilograms of methylamphetamine, which was not less than the large commercial quantity applicable to that prohibited drug.
This is an offence contrary to section 24(2) Drug Misuse and Trafficking Act 1985, a provision that is to be considered with section 33 of the same Act. The maximum penalty for which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mok, Hin Lok

Details

AGLC: R v Mok, Hin Lok [2017] NSWDC 314
Case: [2017] NSWDC 314
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the matter of R v Mok, Hin Lok, the appellant, a Chinese national aged 39 with no prior criminal convictions, was convicted for his involvement in the attempted manufacture of a large commercial quantity of methylamphetamine, amounting to 88.5 kilograms. The appellant's role in the operation was that of a 'cook' in the manufacturing process, though he neither organised the operation nor sourced the precursor chemicals. The case came before the court to determine the appropriate sentence.

The primary legal issues before the court were the extent of the appellant's culpability and the factors that should be considered in mitigating or aggravating his sentence. The court had to weigh the seriousness of the offence, the appellant's role and contribution, the benefit of his early guilty plea, and the difficulties he faced while in custody. The court also considered the need for general and specific deterrence and the utilitarian benefits of the appellant's early guilty plea.

The court determined that while the appellant's criminality was at the lower end of the middle-range, there was limited diminution of criminality as the police had prevented the dissemination of the drugs into the public. The court noted that there were no mental or physical health conditions or non-exculpatory duress that would warrant a reduction in sentence. The inadequacy of sentencing statistics and the special circumstances resulting from the appellant's difficulties while in custody were also considered. The court granted a full discount for the utilitarian benefit of the early plea of guilty, resulting in a full-time custodial sentence.

The court ordered that the appellant receive a full-time custodial sentence. For details on the specific sentence, refer to [105].

Orders

Orders of the court

Full-time custodial sentence. For orders see [105]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Mok, Hin Lok [2017] NSWDC 314

Most Recent Citation

R v Drever; R v Reilly [2022] NSWDC 563

Cases citing this decision · 1 of 1 shown

R v Drever; R v Reilly
[2022] NSWDC 563 Para 47

…them it seems to me is exactly on point. On behalf of Drever, I was referred to the sentence judgment of his Honour Judge Norrish in R v Mok, Hin Lok [2017] NSWDC 314 (“Mok”) which was said to bear a degree of similarity to the circumstances of Mr Drever.…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Pham
[2015] HCA 39

…v Pedavoli (2002) 128 A Crim R 137 R v S (2000) 111 A Crim R 225 R v Thomson & Houlton (2000) 49 NSWLR 383 The Queen v Pham (2015) 256 CLR 550 Ticknius v R [2011] NSWCCA 215 Category: Sentence Parties: Regina (Crown) Hin Lok Mock (Offender) Representation: Counsel: Ms Gallagher (DPP Solicitor) Mr Coyne (Counsel) File Num…
Knight v R
[2015] NSWCCA 222 Para 38

…ected upon the limitations of statistics in dealing with matters on appeal in the decision of Bloomfield . More recently decisions such as Knight v R [2015] NSWCCA 222, reflected upon the limitations of this utility. It seems to me based upon the statistics provided in this case they provide some indication of the r…
AB v R
[2013] NSWCCA 273 Para 59

…With regard to other judgments that were brought to my attention I particularly note the decision of DW [2012] NSWCCA 66 and the decision of AB [2013] NSWCCA 273. In the decision of DW, Baston JA, in his judgment referred to one seemingly comparable case, that is the decision of El-Azzi [2004] NSWCCA 455. The judgme…
R v DW
[2012] NSWCCA 66 Para 59

…With regard to other judgments that were brought to my attention I particularly note the decision of DW [2012] NSWCCA 66 and the decision of AB [2013] NSWCCA 273. In the decision of DW, Baston JA, in his judgment referred to one seemingly comparable case, that is the decision of El-Azzi [2004] NSWCCA 455. The judgm…
Muldrock v The Queen
[2011] HCA 39 Para 56

…appropriate sentence of an offender. This now existing statutory provision reflects ultimately the findings made in the decision of Muldrock v R (2011) 244 CLR 120, particular at [19] - [30].…
Tiknius v R
[2011] NSWCCA 215

…111 A Crim R 225 R v Thomson & Houlton (2000) 49 NSWLR 383 The Queen v Pham (2015) 256 CLR 550 Ticknius v R [2011] NSWCCA 215 Category: Sentence Parties: Regina (Crown) Hin Lok Mock (Offender) Representation: Counsel: Ms Gallagher (DPP Solicitor) Mr Coyne (Counsel) File Number(s): 2016/00025208 Publication restricti…
Hristovski v R
[2010] NSWCCA 129 Para 69

…Johnson J’s view in the judgment of Hristovski [2010] NSWCCA 129, particularly at [41], was that the fact the drugs would not be disseminated into the community because of police activity “does not materially assist the applicant”.…
R v Gao
[2007] NSWCCA 343 Para 67

…Latham J held, for example, in the decision of Gao , [2007] NSWCCA 343, that in the context of the supply being interrupted by an undercover operative and thus not finding their way into the community, the “objective gravity of the offences was diminished accordingly, albeit slightly”.…
Markarian v The Queen
[2005] HCA 25 Para 57

…of the sections to which I referred, that these matters are to be taken into account as required from the decision of the High Court of Markarian [2005] HCA 25, particular for example the observations of McHugh J at [51] of judgment.…
R v OPA
[2004] NSWCCA 464

…CA 66 R v El-Azzi [2004] NSWCCA 455 R v Gao [2007] NSWCCA 343 R v Henry and Ors (1999) 46 NSWLR 346 R v OPA [2004] NSWCCA 464 R v Spaliviero (unreported NSWCCA 15 December 1993) R v Pedavoli (2002) 128 A Crim R 137 R v S (2000) 111 A Crim R 225 R v Thomson & Houlton (2000) 49 NSWLR 383 The Queen v Pham (2015) 256 CL…
R v El-Azzi
[2004] NSWCCA 455 Para 59

…of AB [2013] NSWCCA 273. In the decision of DW, Baston JA, in his judgment referred to one seemingly comparable case, that is the decision of El-Azzi [2004] NSWCCA 455. The judgment of R S Hulme J in that matter contains much more extensive reference to a number of supposedly “comparative cases” in respect of the is…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…15 December 1993) R v Pedavoli (2002) 128 A Crim R 137 R v S (2000) 111 A Crim R 225 R v Thomson & Houlton (2000) 49 NSWLR 383 The Queen v Pham (2015) 256 CLR 550 Ticknius v R [2011] NSWCCA 215 Category: Sentence Parties: Regina (Crown) Hin Lok Mock (Offender) Representation: Counsel: Ms Gallagher (DPP Solicitor) Mr…
R v Henry
[1999] NSWCA 111

…NSWLR 734 R v DW [2012] NSWCCA 66 R v El-Azzi [2004] NSWCCA 455 R v Gao [2007] NSWCCA 343 R v Henry and Ors (1999) 46 NSWLR 346 R v OPA [2004] NSWCCA 464 R v Spaliviero (unreported NSWCCA 15 December 1993) R v Pedavoli (2002) 128 A Crim R 137 R v S (2000) 111 A Crim R 225 R v Thomson & Houlton (2000) 49 NSWLR 383 The…

Legislation cited in this decision · 3

Crime (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes (Sentencing and Procedure) Act 1999 (NSW)
1 mention
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	R v MOK, Hin Lok [2017] NSWDC 314
Hearing dates:	22 September 2017
Date of orders:	13 October 2017
Decision date:	13 October 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [105]
Catchwords:	CRIMINAL – SENTENCE – Knowingly take part in an attempt to manufacture or produce a prohibited drug – methylamphetamine – large commercial quantity – 88.5 kg attempted to be manufactured – Chinese national – 39 years old – no prior criminal convictions – telephone intercepts – offender’s role was that of a ‘cook’ in the manufacture but was not the organiser nor did he source the pre-cursors – limited diminution of criminality where police prevented the drugs being disseminated into the public – criminality at the lower end of the middle-range – no mental or physical health conditions – no grounds for the diminution of weight for general or personal deterrence – no proof of non-exculpatory duress – inadequacy of sentencing statistics – full discount for the utilitarian benefit of the early plea of guilty – special circumstances resulting from the difficulty faced by the offender while in custody.
Legislation Cited:	Crimes (Sentencing and Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	AB v R [2013] NSWCCA 273 AD (2008) 191 A Crim R 409 Hill v R (2010) 244 CLR 520 Hristovski v R [2010] NSWCCA 129 Knight v R [2015] NSWCCA 222 Markarian v R [2005] HCA 25 Muldrock v R (2011) 244 CLR 120 R v Bloomfield (1998) 44 NSWLR 734 R v DW [2012] NSWCCA 66 R v El-Azzi [2004] NSWCCA 455 R v Gao [2007] NSWCCA 343 R v Henry and Ors (1999) 46 NSWLR 346 R v OPA [2004] NSWCCA 464 R v Spaliviero (unreported NSWCCA 15 December 1993) R v Pedavoli (2002) 128 A Crim R 137 R v S (2000) 111 A Crim R 225 R v Thomson & Houlton (2000) 49 NSWLR 383 The Queen v Pham (2015) 256 CLR 550 Ticknius v R [2011] NSWCCA 215
Category:	Sentence
Parties:	Regina (Crown) Hin Lok Mock (Offender)
Representation:	Counsel: Ms Gallagher (DPP Solicitor) Mr Coyne (Counsel)
File Number(s):	2016/00025208
Publication restriction:	Nil