CRIMINAL CASE NO. 211 OF 2010
COURT: Madam, you have been listening to my conversation both with your counsel and with the prosecutor, and you will realise that by sheer force of circumstances, this is not an easy sentencing exercise for me at all.
The facts are straightforward; that on 9 March, you were stopped when you were coming back into Hong Kong from Shenzhen. You were searched, and you were found to be in possession of an aggregate of 16.87 grammes of “Ice”, and you told the Customs officers that that “Ice” was for your own consumption.
Later that night, your house was searched, and at that stage, more drugs were found. That involved another 9.61 grammes of “Ice” plus 9.64 grammes of ketamine, as well as a substance indicating the presence, at some stage, of cannabis.
In respect of the second lot of drugs, you also said to the Customs officers that these drugs were also for your own use, which you had brought in from the mainland, and the result of that is that you were charged with the two counts of trafficking.
Now, that is correct, firstly because the importation of drugs into Hong Kong constitutes trafficking; and secondly, you also told the Customs officers, when you were interviewed, that a friend of yours, “Ah Mui”, would share the drugs with you and reimburse you the cost of what she consumed.
I do not like using the expression at all, but that type of trafficking is what is sometimes referred to as “social trafficking”.
Be that as it may, the upshot is that you were charged with these two offences of trafficking, and charged correctly, let me say, with one count just in respect of the drugs that were found on you and a second count being in respect of the drugs that were found in your flat. So the second count involves two different types of drugs.
None of this is unusual, in the sense that it is now well established that where there are two types of drugs, the court sentences for the more serious type of drug and then makes some additional allowance for the presence of the less serious form of drugs, and it is also well settled that in circumstances like this, where some of the drugs are found on you and some in your flat, the court looks at the total quantity of drugs and has regard to that total quantity, rather than simply looking at the individual amounts, doing the sentences for those and adding them together, because very often the sentence then would end up harsher.
The irony here, however, is that the quantities that you have fall into either the first or the second sentencing band, in respect of the “Ice”, and in aggregate, fall still just into the second sentencing band.
So if I were to sentence you just for the “Ice” in Count 1, I think the appropriate starting point after trial would be one of 7 years’ imprisonment; and if I were to sentence you just for the “Ice” in Count 2, leaving aside the ketamine for the moment, the appropriate starting point would be 5 years’ imprisonment. But to sentence you for the total of those two amounts - 26½ grammes, effectively, of “Ice” - the overall starting point would be about 8 years.
If I were just to look at the second count, the starting point for the “Ice”, as I say, would be about 5 years after trial, and the starting point just for the ketamine would be 4 years. But applying the principle that I have just explained to you, I would, for those two drugs together in those circumstances, take a starting point after trial of about 5½ years.
There is an added dimension to the sentencing process in your case, and that is that I am prepared to accept that a proportion of the drugs were in fact for your own consumption.
Insofar as the “Ice” is concerned, even if I found that of the total amount of “Ice” - 26 grammes - half of it was for your own consumption, that still leaves 13 grammes, which still leaves you with a starting point of at least 7 years’ imprisonment.
The difficulty that really arises, it seems to me, is that the quantities in which you had trafficked are just such that whichever way you look at it, pushes you into the second band, and makes it very difficult to give you some sort of recognition for the fact that a proportion of the drugs were for your own consumption.
It seems to me that on the particular facts of this case, the appropriate method to adopt is to fix the starting points and the aggregate overall sentence just on the basis that the drugs were all for trafficking; to give you the credit to which you are entitled for your plea of guilty and clear record; and then to make an additional allowance for the fact that some of the drugs were for your own consumption.
I accept that whatever additional allowance I give you will be arbitrary. The probabilities are that you will not think it is enough, and others might think it is too much. But I want to emphasise that the reason I am adopting this approach is simply because of the facts of this case. I am not advocating this as a general approach, or trying to create any sort of precedent. It is just that your situation happens to be a difficult one to give you such recognition as you may be due through any other method of sentencing.
You will recall that the last time you appeared in front of me, I adjourned the matter to today to get a background report on you from the probation officer. I was particularly concerned about the welfare of your two youngest children, and I was concerned to know more about you for the reason that it is quite unusual for somebody to start what is almost a second family, 11 years after they have already had two children, and especially in respect of your fourth child, when you were already in your early 40s, and the report does show that you have a somewhat unusual personal life in the sense that you got married to the father of your two elder daughters, the two of you divorced, and then you remarried, but soon got divorced from your second husband. You then lived with your first husband again, and your third daughter was born, and you then remarried your first husband, and your fourth child, your son, was born.
One of the aspects that was troubling me as well was how you were able to afford to buy quantities of drugs when you were on Social Security, and it seems that for quite a long time, your first husband had been paying you a decent amount of maintenance each month. But he lost his business, and that amount had to be reduced, and you then took up employment in order to support your younger children.
The background report that I have actually is very helpful, because it has shown that you come from a closely-knit family, and you have obviously been, with the exception of the drugs, a responsible mother. Both your elder daughters are in employment, earning reasonably good salaries. Both your younger children are in the process of being educated. Your mother helps care for the two younger children, and when she has to go back to the mainland for administrative reasons, then your son stays with your second eldest daughter.
The report comments that both your elder daughters said that in their eyes you are a good mother, and that does seem to be a justifiable conclusion. You do not need me to lecture you and tell you how silly you were to get involved with drugs, and the consequences of your behaviour.
What I have to do is to impose the appropriate sentence for each of the two counts, and in respect of Count 1, as I indicated, I believe the appropriate starting point after trial to be 7 years’ imprisonment; and on Count 2, the appropriate starting point after trial to be 5 years and 6 months’ imprisonment.
Now, you are entitled, by virtue of your plea, to a third reduction on each of those sentences, so on Count 1, the sentence for straightforward trafficking would be 56 months, and on Count 2, 44 months, after your reduction for your pleas.
Now I have to have regard to the total sentence to be imposed, particularly insofar as the fact that “Ice” is involved in each of these two counts. It seems to me that the appropriate overall sentence, before I turn to the question of an adjustment for self-consumption, would be one of 6 years’ imprisonment; that after your one-third discount, that suggests an overall aggregate starting point of 9 years’ imprisonment.
You are entitled to a recognition of the fact that a portion of the drugs were for your self-consumption, and, as I said earlier, it is an arbitrary decision, but it seems to me that I should allow you a reduction of 12 months.
That reduces the total sentence that you would serve to one of 5 years’, or 60 months’, imprisonment, and in order to achieve that, I direct that 4 months of the imprisonment on Count 2 be served consecutively to the period of 56 months on Count 1.
It took a long time to explain to you, but the net effect is that you will go to gaol for 5 years.