CRIMINAL CASE NO. 341 OF 2011
COURT: You have pleaded guilty to two charges of trafficking in a dangerous drug. The 1st charge is in respect of 140.38 grammes of a mixture containing 110.18 grammes of heroin hydrochloride. The 2nd charge is in respect of 7.06 grammes of a mixture containing 5.76 grammes of heroin hydrochloride, making a total amount of narcotic of 115.94 grammes.
In the afternoon of 18 May 2011, Customs officers were on duty in the Sham Shui Po area when, at 1530 hours, they observed the defendant outside the Sheung Wing Building, at Nos. 145-149 Kiu Kiang Street. The officers became suspicious of the defendant and stopped him in the lift lobby in order to search him for dangerous drugs. In the left front pocket of the defendant’s trousers, the officers found a black plastic bag containing various plastic bags, each containing a white substance.
The defendant was arrested and cautioned and, in response, said, “Ah Sir, what you have seized is drug”. He went on to explain that he was only holding the drugs prior to passing them on to another. He was waiting on a phone call from a person who would instruct him what to do. For his services, he would be paid $500 to $1,000.
The defendant was also in possession of a set of three keys which he said were to Room B, Flat B, 3rd Floor, Sheung Wing Building. The officers escorted the defendant to these premises and searched the room. They found, inside two drawers in the room, the following items: a bundle of small resealable plastic bags; one calculator; one sealing machine; two electronic scales; four rental receipts for the address; one plastic spoon; one plastic bag containing 7.06 grammes of a mixture containing 5.76 grammes of heroin hydrochloride and six plastic bags, each containing a powder containing caffeine, paracetamol, antipyrine and carbetapentane. The total weight of all the powder is 182.90 grammes. These four substances are commonly used as adulterants in heroin mixtures.
The estimated street retail value of all the heroin seized totalled $100,996.40.
In different cases, the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug trafficking offence. The first is that the sentencing range for heroin is to be determined by the quantity of the narcotic being trafficked, not the powder in which it is contained. Thus the quantity for which this defendant must be sentenced is a total of 115.94 grammes.
Secondly, the sentencing ranges for trafficking in heroin are to be taken from the guidelines laid down by the Court of Appeal in R v Lau Tak Ming & Others [1992] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There, the Court of Appeal said that for amounts between 50 to 200 grammes, the sentencing range should be 8 to 12 years’ imprisonment, and for amounts up to 10 grammes, the sentencing range should be 2 to 5 years’ imprisonment.
The existence of these sentencing tariffs leaves little room for mitigation but, notwithstanding this, the sentencing tariffs play a very important role for two main reasons. Firstly, they lead to consistency in sentencing. As Stuart-Moore, Acting CJHC, said in HKSAR v Manalo [2001] 1 HKLRD 557, at page 560G to H:
“The guidelines, whilst of course not straitjackets, are there to provide and maintain consistency of sentence between all offenders who traffic in dangerous drugs. It is important for courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.”
Secondly, they help to deter those who might otherwise be tempted by what they perceive as an easy and low risk means to substantial profits. As the Court of Appeal said in Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20:
“It is important to follow the guidelines so that people who engage in such evil business can be assured of the length of the inevitable custodial sentence, and hopefully such an approach will be a deterrent.”
The Court of Appeal has made it clear that it requires exceptional circumstances that justify a departure from the guidelines. In the Chan Ka Wah case, the Court of Appeal concluded, at page 908, paragraph 22, that:
“Whilst a sentencing judge may retain some degree of discretion and other factors may be taken into account to determine an appropriate sentence, the sentence imposed should normally be ‘within the suggested bands’.”
No such exceptional circumstances are present in this case. Nevertheless, I still have some sentencing discretion. I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture contained, the narcotic, the degree of involvement of the offender and any previous involvement he may have had in drug offences.
You have handed up to me letters explaining your background, the difficulties that you are facing, the remorse that you now feel and the involvement you had in these offences and how that involvement came about. I have read those letters and have been touched by the comments you made in them. I am also touched by the support that you are receiving from your fiancée and by the difficulties she will now encounter in raising your child.
But you must understand, from the comments I have already made, about the approach that the courts take to drug offences. Your counsel will have explained all those legal principles to you and he will have explained the limitations that those legal principles impose upon my sentencing discretion. He has asked me to be lenient with you and all that he has said on your behalf and all that you have written to me and that your fiancée has written to me has caused me to conclude that leniency is appropriate in your case.
But I cannot ignore the quantity of the drugs in which you were trafficking. As your counsel will have explained to you, the leniency which I can allow you relates to the position at which I start within the sentencing band that the Court of Appeal has said is appropriate for this quantity of drugs.
In respect of the 1st charge, I adopt 8 years and 6 months as my starting point. I discount that sentence by one-third to allow for your plea of guilty. The resulting sentence is 5 years and 6 months.
For the 2nd charge, I adopt a starting point of 3 years’ imprisonment and reduce it by 1 year to 2 years’ imprisonment.
Despite what has been said by your counsel, there is nothing in the mitigation to justify a further discount of the sentence. The sentences, therefore, are that, in respect of the 1st charge, you are sentenced to 5 years and 6 months’ imprisonment and in respect of the 2nd charge, to 2 years’ imprisonment, but the 2nd charge will be served concurrently with the sentence for the 1st charge.
This means that your total sentence is 5 years and 6 months’ imprisonment.
Should you behave yourself in prison and live a prison life in accordance with prison rules, then the Commissioner for Correctional Services may be able to provide you with some remission. Life may have been hard with you to date, Mr Lum, but that is no excuse for becoming involved in drug trafficking. It will be up to you to make what you can of your life with your fiancée and child when you are released from prison.