CRIMINAL CASE NO. 207 OF 2010
COURT: The facts are very straightforward and depressingly familiar; namely, a young man of good character caught crossing the border into Hong Kong from the Mainland with a consignment of heroin.
You are obviously not yourself a drug addict, so either you are a trafficker of drugs yourself in the sense of selling or peddling them to others, or you were asked to bring this consignment into Hong Kong for someone else for a fee. The latter is the submission made by your counsel and accords with what you told the Customs & Excise. I shall sentence you on the basis that your trafficking was limited to importing the drugs into Hong Kong.
Your counsel, Mr Kwan, has given me a full account of your upbringing as a child of a broken home and I have received two touching letters from your mother and your cousin. The thrust of what they both say is that, essentially, you are a good person who has gone off the rails by getting involved in an extremely serious offence.
I note that you are making an effort to turn your life around whilst in prison, which is consistent with the type of person you would appear to be.
The operative amount of dangerous drug for sentencing purposes is 40.86 grammes of heroin hydrochloride. That places you in the upper end of the relevant tariff guidelines set out in The Queen v Lau Tak Ming [1990] 2 HKLR 371, namely, 5 to 8 years for between 10 and 50 grammes. In my judgment, the quantity concerned would, in the normal course, have attracted a sentence after trial of 7 years’ imprisonment.
However, this was an importation across the border of dangerous drugs. It has been recognised that that is an aggravating feature of the offence of trafficking, deserving of enhancement of the starting point. In HKSAR v Abdallah Anwar Abbas Cr.App. No. 304/2008, it was said that for amounts over 1 kilogram of heroin, the court did not envisage that any enhancement of the sentence would be less than 2 years’ imprisonment.
Here, I am concerned with a quantity of 40.86 grammes of heroin hydrochloride. In my view, the starting point of 7 years should be enhanced by 6 months, making an overall starting point of 7½ years’ imprisonment.
The single most important matter of mitigation in your case is your plea of guilty which was entered not at the door of this court but at the earliest possible opportunity, namely, before a magistrate. As a result, you have been committed here for sentence where you have confirmed your plea and the admission of the facts.
You will get a one-third discount, resulting in the sentence being brought down to 5 years’ imprisonment.
There is, however, one other matter potentially in your favour which I should mention, which is your good character, or lack of previous convictions. It has been said that a clear record counts for little in offences of this gravity.
On the other hand, you have played fair with the system by pleading guilty at the first available opportunity. The discount which I have given you is, in most cases, the same as would have been given to someone pleading guilty in the High Court, yet it seems to me your timely and early plea has assisted the authorities and the court rather more significantly in terms of time, preparation, listing and expense than had you pleaded guilty on the first day of a listed trial in the High Court.
So I am of the view that I can properly give you some small credit for your clear record in the light of your early plea and response to this prosecution. If I am enhancing the sentence, it seems to me to be fair and proper that I can give effect to a small reduction for your good character where you have pleaded guilty at the first available opportunity. So I am prepared to give you a further reduction of 3 months’ imprisonment.
Stand up, Defendant. The sentence which the court passes will therefore be one of 4 years and 9 months' imprisonment.