CRIMINAL CASE NO. 255 OF 2011
COURT: The defendant need not stand. You have been found guilty, by a jury, of trafficking in 1.44 kilogrammes of a mixture containing 0.96 kilogrammes of heroin hydrochloride.
This case causes me some disquiet because it is one of a growing number of cross‑border trafficking cases that I have dealt with recently in which drugs are being smuggled into Hong Kong, hidden in suitcases en route to the mainland. It may be that Hong Kong is perceived as a convenient point of entry because the penalties if caught here are less drastic than those elsewhere but it is a cause for concern that Hong Kong’s openness to foreign visitors from outside is being abused in this way.
It will require greater vigilance from the Customs and Excise services at our borders which inevitably means that genuine travellers from certain countries will necessarily be inconvenienced because of Hong Kong’s duty, not only to protect its own good name, but to play its part in stamping out this evil and international trade.
The Customs and Excise officers in this particular case are to be complimented on this occasion for successfully stopping a considerable amount of heroin from entering Hong Kong, ostensibly on its way to the mainland. Having said that, it might seem, on the evidence of this case, that for every successful interception at least four other importations are getting through.
I make it clear that I am not sentencing you for what the other four trips to Malaysia might suggest or might have entailed. It is just about conceivable, although unlikely, that they were dummy runs and did not involve the smuggling of any drugs at all. Whatever those trips were for, I can only sentence you for what has been proved by positive evidence in relation to this particular arrest.
However, it is quite clear that by the time of this fifth trip to Malaysia you must have known and did know, on the jury’s verdict, exactly what you were doing and what you were carrying. Not only did you fully know what you were doing, you took the risk in the knowledge of the misery that these drugs would have caused to your fellow human beings on the mainland and elsewhere.
I have no sympathy for you whatsoever. You took a deliberate gamble and it did not work. You must now pay the price for its failure.
The word must get back to the mainland that Hong Kong is not a soft touch on drugs and that whilst our sentences may not be as drastic as those in other Asian countries, you will go to prison for a very long time if you are caught trafficking in drugs over our borders.
Under the tariff guidelines set down by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437, trafficking in between 600 and 1,200 grammes of heroin narcotic attracts a sentence after trial of between 20 and 23 years’ imprisonment. The quantity with which I am dealing in this case for sentencing purposes is 0.96 of a kilogramme of heroin hydrochloride narcotic.
In my judgment, the appropriate starting point for sentence for the quantity in this case is 22 years’ imprisonment. However, the Court of Appeal in Abdallah’s case has also said that if there is present in the evidence an aggravating feature the sentence should be enhanced or increased. One of those aggravating features calling for the enhancement of the sentence is if an international element is involved.
Bringing drugs across the border into Hong Kong, as in this case from Malaysia, constitutes an international element. In the case of Abdallah which was a case involving the trafficking of heroin from Tehran into Hong Kong through the airport, the court said that it did not envisage that the enhancement of sentence for amounts above 1 kilogramme of heroin narcotic would be less than 2 years’ imprisonment in addition to the guidelines set out and to which I have already referred.
The quantity of heroin narcotic with which I am dealing is slightly short of 1 kilogramme. I intend to enhance the starting point of 22 years by 1½ years.
Had you pleaded guilty in the face of what was overwhelming evidence, you would, like any other defendant in these courts, have received a discount of one‑third from that sentence for your plea of guilty. You have pleaded not guilty and there is no mitigation or reason therefore to reduce the sentence.
The sentence of the court is that you should go to prison for 23½ years.