CRIMINAL CASE NO. 221 OF 2010
COURT: Mok Yiu-kau, you pleaded guilty in the Magistrate’s Court to trafficking in dangerous drugs and you have been committed to this court for sentence.
The facts are that on 20 February 2010 at the Lo Wu border crossing, you were stopped in the green channel and searched and you were found to be in possession of 95 grammes of a mixture of which 86.75 grammes was cocaine.
The mere fact of importation of such dangerous drugs rendered you guilty of trafficking in dangerous drugs. But, in any event, the prosecution say that the quantity of dangerous drugs shows that they were destined for distribution to others in Hong Kong in some way and, therefore, your acts amounted to trafficking in dangerous drugs.
When you were intercepted you were cautioned and you said that the dangerous drugs were K-chai, that is, the common name for ketamine. In your subsequent formal interview you exercised your right to remain silent.
I have made particular inquiries about this matter during the course of this morning’s hearing because, as you know, sentence for trafficking in dangerous drugs is related to guidelines laid down by the Court of Appeal for different types of drugs which are based on the quantity of drugs involved. This is so that traffickers are sentenced on a more or less equal footing.
The guidelines for cocaine are the same as those for heroin. The guidelines for ketamine are different and sentence for ketamine falls into a lower level. My attention has been drawn by Mr Chan, who has spoken so well on your behalf to a case called Yip Wai Yin [2004] 3 HKC367, as to the proper approach.
However, he has informed me expressly on your behalf that you do not seek to argue that you believed the drugs which you knew you were carrying were ketamine. It must therefore be accepted that you knew you were carrying cocaine and you must be sentenced on that basis.
Next, I must have regard to the fact that you were importing these drugs manifestly for distribution by someone in Hong Kong. I do not need to look at a recent authority in the Court of Appeal called Abdallah to say that importation is an aggravation. It has always been an aggravation. Although, in this case given the quantity, it does not make a huge difference. That is, the sentence is not to be greatly increased because of the fact of bringing the drugs into Hong Kong from the Mainland, but it is a factor for me to take into account.
I must also have regard to your own antecedents and personal circumstances. It is significant that in your case, in 1981, you were convicted for trafficking in dangerous drugs and were sentenced to 6 years’ imprisonment. And in 2006, you appeared in the District Court for sentence for trafficking in dangerous drugs. In fact, that was a case dealt with by me in the District Court. The sentence that I imposed upon you was adjusted to 2 years and 8 months’ imprisonment by the Court of Appeal, CACC256/2006, on the basis that I had taken an incorrect approach to sentencing in that case.
There is, I might say, no objection on your part, to my dealing with you again today. The point about these convictions is this, that, as you heard me say earlier, no man is ever to be sentenced again for offences he has committed in the past and for which he has served the sentence. That would be grossly unfair.
However, it is no more than commonsense that if someone continues to offend in the same manner, despite those sentences, the re-offending is bound to be regarded as an aggravation of the fresh offence and it will lead to a higher sentence. Particularly if the crimes involved are grave and if the offender has clearly not been deterred from offending by the previous sentences.
That approach applies to your case. You have repeatedly shown yourself willing to traffick in dangerous drugs presumably for some reward.
Now, for the mitigation. I have read your letter to the court and I bear in mind what you say. I have no doubt you are expressing sincerely what you feel, but what amounts to effective mitigation in your case is your plea of guilty. That earns you a discount of one-third from what would otherwise have been the starting point for sentence. That is, that you are to be sentenced for trafficking in 86.75 grammes of cocaine by bringing it into Hong Kong for distribution.
This is not just a case of technical trafficking because of the fact of importation and you are a repeat offender. 86 grammes of cocaine takes you into a sentencing bracket of 50 to 200 grammes for which sentences of 8 to 12 years are prescribed in the relevant guidelines.
I am satisfied that given all the matters to which I have referred, the appropriate starting point in your case is one of 9½ years' imprisonment and I reduce that term to 6 years and 4 months' imprisonment to reflect the mitigation.