The particulars of offence are that the defendant, on the 19th day of May 2014, at customs arrival hall, Hong Kong International Airport, Chep Lap Kok, Lantau Island in Hong Kong, unlawfully trafficked in dangerous drugs, namely 1,070 grammes of a mixture containing 670 grammes of heroin hydrochloride and 120 grammes of 6-monoacetylmorphine hydrochloride.
He is committed to this court for sentencing.
Admitted Facts
On 19 May 2014 at about 3.20 pm the defendant was intercepted for customs clearance by Customs and Excise officers at the Hong Kong International Airport when he arrived in Hong Kong from Tanzania via Ethiopia.
Medical examination of the defendant revealed that there were foreign objects inside his body. The defendant was arrested and he remained silent under caution. At the hospital he first discharged 21 pellets, one of which showed positive to heroin on narcotics test. The defendant confirmed that it was heroin.
Including these 21 pellets, the defendant discharged a total of 85 pellets while at the hospital. These pellets were confirmed to be 1,070 grammes of a mixture containing 670 grammes of heroin hydrochloride and 120 grammes of 6‑monoacetylmorphine hydrochloride.
At a subsequent cautioned interview, the defendant said that he had come from Tanzania intending to go to Guangzhou, China, to conduct mobile phone business. He swallowed the 85 pellets of dangerous drug for delivery to China for a reward of US$15,000. A Mr Godwin was to pick up the pellets from him at Dongfeng Hotel in China.
The estimated street value of the dangerous drug was about HK$817,480.
Mitigation
The defendant is aged 40, born in Bububu, Zanzibar, educated up to primary 7 level, married with three daughters aged 13, 11 and 7 and a son aged 8 months.
The defendant is the sole breadwinner of his family and he also helps to support his father and mother who are respectively aged 75 and 65.
The defendant was employed in a business of selling car parts in conjunction with his work as a driver and needed to travel to China from time to time. This ceased in 2012 when the business failed.
The defendant then started his own mobile telephone business, sourcing mobile telephones from Southern China, transporting them to Tanzania for sale. He could earn about US$2,000. The business declined in 2014 and he was pressed for repayment of loans he had obtained in setting up and running the business.
Through the introduction of a neighbour he went on the trip to deliver the dangerous drug to China for a reward of US$15,000 on successful delivery. The defendant has no means to contact the Mr Godwin who was to contact him to collect the dangerous drug in China.
The money found on the defendant, ie sums of US$2,800 and US$2,340 were given to him by others for the purchase of mobile telephones and they are pressing the family of the defendant for repayment of the money.
The counsel for the defendant, who has offered much assistance to the court in the mitigation for which the court is grateful, points out that according to HKSAR v Kafune Bashiri Rajabu CCC493/2012, 6‑monoacetylmorphine hydrochloride has no difference in sentencing from heroin hydrochloride.
The defence counsel also cites HKSAR v Mwila Zahra Yakubu CACC189/2013, HKSAR v Mateus Da Silva CACC 87/2010 and HKSAR v Zhou Sailin CACC72/2014 for the reference of the court. He also draws the court’s attention to the case of HKSAR v Chung Ping Kun CCC85/2014 and the case of HKSAR v Zhou Sailin which deal with the level of enhancement of sentence when international element is involved in the offence of trafficking in a dangerous drug.
The defence counsel stresses that the defendant pleads guilty to the offence and he had only performed the role of a courier. The defendant is remorseful. The defence counsel asks leniency for the defendant.
The defendant has written a letter to court saying that he is remorseful for his illegal deed which he had foolishly embarked on without careful thinking, while under the pressure of supporting his family. His family is now in miserable conditions facing poverty and struggling for life. He asks for the mercy of the court to give him a chance so that he can be a good man and a good father again.
The dangerous drug involved in the present case are 6‑monoacetylmorphine hydrochloride and heroin hydrochloride. The former is, in fact, a metabolite of the latter and is, in fact, more potent than the latter. However, as rightly pointed out by the defence counsel, they are treated as no difference in terms of sentencing by the courts in Hong Kong.
The defence counsel also rightly points out that the sentencing guidelines for trafficking in heroin hydrochloride is laid down in the case of R v Lau Tak Ming & Anor [1990] 2 HKLR 370 and, when the quantity of dangerous drug is over 600 grammes, in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197.
According to Abdallah if the quantity of heroin hydrochloride is 600 to 1,200 grammes, the normal starting point should be 20 to 23 years’ imprisonment. The combined amounts of 6-monoacetylmorphine hydrochloride and heroin hydrochloride in this case is 790 grammes. The normal starting point is therefore about 20 years 11 months’ imprisonment.
The defendant committed the present offence basically for financial reasons. This certainly does not constitute a valid ground of mitigation. The court has much sympathy towards the difficult situation the family of the defendant is facing, but the defendant should be able to foresee such consequences before he embarked on his illegal deed. This factor, together with the background of the defendant, count very little, if any, towards mitigation in an offence as serious as the present one.
The court sees no justification to depart from the sentencing guidelines and adopts 20 years 11 months’ imprisonment as the basic starting point. There is an aggravating factor in this case because the defendant took the dangerous drug into Hong Kong from a foreign country. Such a factor of international element necessitates the starting point to be enhanced.
After considering the case of Chung Pin Kun cited by the defence counsel, the court enhances the starting point by 18 months, thus adopting 22 years 5 months’ imprisonment.
After giving credit to the defendant for his plea of guilty, the court sentences him to 14 years 11 months’ imprisonment.