CRIMINAL CASE NO. 403 OF 2009
COURT: This defendant was found guilty after trial by unanimous verdict of the jury of one count of attempting to traffic in dangerous drugs. The dangerous drug was heroin, being 2,072.12 grammes of powder with a narcotic content of 1,643.63 grammes.
A Malaysian man had been arrested at the airport in Macau and found to be carrying heroin in the quantity described above in a compartment in his suitcase. During the investigation by the Macau Judicial Police, the trafficker offered to assist the police by giving contact details relevant to the collection of the drug in Hong Kong.
The Macau Judicial Police relayed the details to the police in Hong Kong who arranged to do a controlled buy of the drugs. A hotel room was arranged as a venue for the transaction and the number of the hotel room was sent to the Macau Judicial Police, who in turn gave it to the trafficker, who contacted those persons who were organising the transaction from Thailand. The organisers passed the information to what was the defendant’s telephone.
Within a few minutes of the defendant having received the room number, he knocked on the door of the room, where he was met by a police officer posing as a dealer. The defendant showed a sum of Hong Kong currency to the decoy officer, who in turn indicated a suitcase in which the police had placed a packet of dummy drugs. The defendant unzipped the suitcase to inspect the contents, but for some reason unknown, after he had placed his hand on the packet, he almost immediately straightened up and made as if to leave the room.
He was arrested and eventually charged. After caution, he admitted that he had been paid $10,000 “by someone” to take a suitcase of white powder “to someone”.
The defendant is aged 54, and his date of birth was 2 April 1957. He is single. He completed Form 3 education in mainland China. From 1979 to 1983 he worked in a watch case factory in Hong Kong. In 1983 he went to work in Thailand. Prior to his arrest on 3 May 2009, the defendant lived alone in a housing estate flat. His parents were dead, and he had family members living in the mainland, but had lost contact with them.
Although the defendant had a clear record in Hong Kong on 28 April 1983, the defendant had beenconvicted in Thailand for the offence of possession of a dangerous drug for the purpose of unlawful trafficking, and was sentenced to 50 years’ imprisonment.
On 29 November 1994, the defendant was transferred back to Hong Kong to serve the remaining term of his imprisonment in Hong Kong under the Council of Europe Convention on the Transfer of Sentenced Persons and the Repatriation of Prisoners Act 1984.
By a Royal Amnesty granted by His Majesty the King of Thailand, his sentence was commuted to 40 years’ imprisonment. By a second amnesty granted by His Majesty the King of Thailand, the defendant’s sentence was commuted further to 33 years and 4 months’ imprisonment on 14 December 2004.
The defendant was discharged from prison on 17 November 2006.
Unfortunately, he appeared to have learned very little from his lengthy incarceration, because he was arrested for this offence on 3 May 2009.
Apart from his antecedents which were put before me, there was little that defence counsel could advance on behalf of his client.
The guidelines on sentencing for quantities of heroin in excess of 600 grammes are set out in HKSAR v Abdallah [2009] 2 HKLRD 437. The narcotic quantity of heroin between 1,200 grammes and 4,000 grammes calls for a sentence in the range of 23 to 26 years. In addition, the importation element requires the addition of a minimum of 2 years’ imprisonment.
I was mindful that this was a case of attempting to traffic, and that in certain circumstances, an attempt offence could require a slightly lesser penalty than the penalty for the full offence. I sought counsel’s assistance on that matter, not having been able to find any authority which was particularly helpful in deciding whether if, and if so, by how much, a sentence for an attempt could or should vary from a sentence imposed for the full offence.
However, in Hong Kong, section 159G of the Crimes Ordinance, Cap 200, provides that:
“A person who is guilty of attempt, if the offence is indictable, shall be liable on conviction to any penalty to which he would have been liable on conviction on indictment of the substantive offence.”
In Cross and Cheung, the editors took the view that:
“There is no rule that an accused who is convicted of conspiring or attempting to commit an offence will face a lesser sentence than if he had been convicted of the substantive offence.”
The position differs from that shown by the English and Australian authorities which are in tune with the comment by Megaw LJ referred to in Archbold in R v Robson, unreported, May 6, 1974, that it would be:
“At least unusual that an attempt should be visited with imprisonment to the maximum extent that the law permits in respect of a completed offence.”
A number of cases which illustrate the general principle that an attempt normally carries a lesser sentence than does the full offence have been put before me. Counsel for the defendant, not unnaturally, urges the court to leniency on that basis. Counsel for the defendant effectively urges the court to take into account when considering sentence that this was a serious offence which has not been completed; to take into account the chances of success; whether the attempt was sophisticated or naïve; the competence of the attempt; and all the other surrounding circumstances.
This was obviously a very serious offence which required sophisticated planning and presumably financing; had a high chance of success; and was executed with the requisite degree of competence, directed throughout by organisers in Thailand. The defendant, to judge from his criminal record, had some knowledge and experience of drug offences stemming from his original offence and 10 years in a Thai gaol. He also, usefully, spoke and understood Thai. The drugs were to be transported via a roundabout route starting from Bangkok, going via Macau to Hong Kong, and after that to be disposed of, although whether that was to be in Hong Kong, China or elsewhere was not apparent from the material before the court.
That this was an attempt and not the substantive offence was not the result of any remorse by the defendant, nor did it occurred because it was an operation doomed to failure, nor was it because the substance trafficked, unbeknownst to the defendant, was not a prohibited substance at all. The defendant had in fact done all that he needed to do to act as courier to take the heroin on the next leg of its journey, or to its final destination.
This was a crime that, but for the vigilance of the Macau Judicial Police, would have ensured that $1.8 million worth of heroin would have arrived in Hong Kong for disposal in Hong Kong, or for onward transmission for disposal in another country.
Given those facts, and given the wording in section 159G, I can see no justification in this case for treating this attempt any differently in terms of sentencing from the substantive offence.
Taking into account the Abdallah guidelines, I impose 23 years’ imprisonment, and enhance that sentence by 2 years to take into account the importation element.
The defendant will serve a total of 25 years’ imprisonment.