CRIMINAL CASE NO. 38 OF 2010
COURT: On 5 February 2010, the defendant appeared before Mr H. A. Mierzak, Magistrate, at the Eastern Magistracy. He was charged with trafficking in dangerous drugs contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.
The charge was read to him and he pleaded guilty. A Summary of Facts upon which the charge was based was submitted by the prosecution and read in open court to the defendant. The defendant admitted the Summary of Facts. He was, as a consequence, committed to this court for sentence.
Today, before me, the defendant has confirmed that plea of guilty and the Summary of Facts was read again and admitted by him.
The particulars of the charge alleged that the defendant, on 14 September 2009, at the Hong Kong International Airport, unlawfully trafficked in 919.86 grammes of a mixture containing 510.47 grammes of heroine hydrochloride and 137.37 grammes of monoacetylmorphine hydrochloride, a salt of esters of morphine.
The Summary of Facts revealed that the defendant, a native of Guinea-Bissau, Africa, arrived at Hong Kong International Airport in the early hours of 14 September 2009. Whilst nothing of any moment was discovered when his luggage was searched, Customs Officers’ suspicions were aroused by his behaviour. They suspected that he may be carrying dangerous drugs internally. Those suspicions proved to be correct.
The defendant was taken to the Queen Elizabeth Hospital where, over a period of days, he discharged 67 pellets containing dangerous drugs. Upon analysis these pellets were determined to contain 510.47 grammes of heroin hydrochloride and 137.37 grammes of monoacetylmorphine hydrochloride.
The Government Chemist, in a statement dated 9 December 2009, confirmed that heroin hydrochloride and monoacetylmorphine hydrochloride are both salts of esters of morphine.
On behalf of the defendant, Mr Chau accepts that for the purposes of sentencing no distinction is to be made between the two salts of esters of morphine. He accepts that the proper approach to sentencing is to add together the quantities of the two salts of esters of morphine and then apply the appropriate guidance from the Court of Appeal to determine the correct starting point.
When interviewed on 15 September 2009, the defendant told the officers investigating this matter that he had been paid US$4,000 to bring the drugs to Hong Kong.
It was an admitted fact that the dangerous drugs had a street value in Hong Kong of $768,083.
The quantity of dangerous drugs for the purposes of sentencing therefore amounts to 647.84 grammes. This exceeds the cut off point for sentence after trial recommended by the Court of Appeal in R v Lau Tak-ming & Ors. Therefore the appropriate guidelines for sentencing are governed by the Court of Appeal decision of HKSAR v Abdallah Anwar Abbas which is reported at Hong Kong Law Reports and Digest, Volume 2 of 2009, page 437.
In Abbas the Court of Appeal provided guidelines to sentences where the quantities of heroin exceeded 600 grammes as it does in the instant case. Subject to enhancement of that starting point, by reference to aggravating factors, the Court of Appeal suggested in Abbas that where the amount of heroin was between 600 and 1200 grammes a sentence, after trial, of 20 to 23 years was appropriate.
Given that the amount of heroin in the present case is just over 600 grammes it is not necessary, in my opinion, to adopt a starting point in excess of 20 years but for the aggravating factor of there being an international element involved in the defendant’s trafficking.
The Court of Appeal, in Abbas, noted that the international element in trafficking in dangerous drugs has long been considered and accepted as an aggravating factor. The Court of Appeal observed as to the level of enhancement to reflect this aggravating factor that an enhancement of no less than 2 years’ imprisonment should be added to a starting point for sentence for amounts of trafficking in heroin in excess of one kilogramme.
In the present case I consider that there must be an enhancement of the starting point to reflect this international element of the defendant’s drug trafficking but I consider that one year is appropriate.
Mr Chau, on behalf of the defendant has said as much as can be on his behalf in mitigation. The defendant has placed before the court a handwritten note wherein he apologises for his conduct and indicates that the reason for his becoming involved in drug trafficking was to obtain funds to provide for urgent medical treatment for one of his younger sisters.
The defendant is 28 years of age and he has no prior convictions in Hong Kong. He is apparently well educated. All of the matters that have been advanced on behalf of the defendant do not justify me increasing the amount of discount from the starting point other than the full one‑third to reflect his plea of guilty.
There is nothing in the circumstances of the commission of the offence or the defendant’s circumstances which would justify me departing from the accepted norm of a full one‑third discount.
Adopting a starting point after trial of 21 years' imprisonment and giving to the defendant the full one-third discount, the appropriate sentence, and the sentence I impose, is one of 14 years’ imprisonment.