HKSAR v. MARK, DEUS FIDELIS

HCCC 388/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 388 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded guilty before a magistrate of one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence.

On 19 November 2014, he pleaded guilty again before me and was convicted of the charge.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drugs involved, the background of the defendant and mitigation put forward on his behalf.

The facts of the case are simple. On 16 February 2014, the defendant arrived at the Hong Kong International Airport from Nairobi via Doha. Customs officers conducted a search on him and found a transparent plastic bag of suspected dangerous drugs placed near his anus.

Upon arrest, he said, under caution, that the substance was medicine for asthma which he bought in a shop in Tanzania.

Since internal concealment was suspected, the defendant was sent to a hospital for examination. The presence of foreign objects in his body cavity was confirmed. Eventually, the defendant discharged some 76 further packets of dangerous drugs.

The dangerous drugs which were in his possession were 974.99 grammes of a mixture containing 555.97 grammes of heroin hydrochloride and 87.73 grammes of 6-monoacetylmorphine hydrochloride which I will call ‘6-MAM’.

I was told that the defendant was born in Bagamoyo and held a Tanzania passport. He is now 41 years of age and has completed upper secondary education. He is married. He lived in Tanzania and ran a business there. He had not committed any offence before in Hong Kong.

In mitigation, Mr Laskey informed the court that the defendant ran a small business in Tanzania selling second-hand mobile phones. With a humble earning of about US$50 a month, he has to support his wife and three children. At the same time, his wife was pregnant. The defendant also had to support his elderly parents. It was under this heavy burden the defendant succumbed to temptation and be employed in this trafficking act.

Mr Laskey also stressed that the defendant had a clear record before. He also told the court that the defendant had provided certain information to the authorities. Despite the defendant had tried his best, it bears no fruitful result, however.

The dangerous drugs the defendant trafficked in were heroin and MAM. It was stated in the Court of Appeal decision in Hong Kong SAR v Daresa, Mariam Guma, CACC 155/2012, that MAM had been confirmed to be a similar potency to heroin hydrochloride in its narcotic properties. From the reasons for sentence of that case, I note that the dangerous drug involved in that case was 6-MAM, which was of the same type as one of the dangerous drugs involved in the present case.

My attention was drawn to the reasons for sentence in two Court of First Instance cases, namely Hong Kong SAR v Masham, Deborah James, HCCC 264/2011, and HKSAR v Kharim Mohamed Omari, HCCC 265/2011. It was pointed out in these cases that there are two types of MAM, 3-MAM and 6-MAM. 3‑MAM has a much lower potency and may be described as inactive. 6‑MAM has the same potency as heroin hydrochloride.

The position was accepted by both parties in the present case, though it was the submission of Mr Laskey that MAM is a less potent drug.

In the circumstances, for the purpose of sentencing, I will take into account the total quantity of the narcotic content of both types of dangerous drug which the defendant trafficked in. The total narcotic content of the drugs was 643.74 grammes.

The Court of Appeal suggested in the case of Queen v Lau Tak Ming [1992] HKLR 370, that a sentence of more than 20 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is over 600 grammes. In HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal laid down further guidelines and held that if the narcotic content was between 600 and 1,200 grammes, a sentence of 20 to 23 years should be considered.

Having considered the whole circumstances, I do not find there are good grounds to depart from the tariff. I also have to take into account that the defendant had taken the dangerous drug into Hong Kong. For these reasons, the starting point should be enhanced by 1 year. In all the circumstances, I consider a starting point of 21 years appropriate.

The defendant pleaded guilty as soon as the matter was dealt with by a magistrate and is, for this reason, entitled to a one-third discount. In all the circumstances, I am of the view that this is the extent of discount the defendant is entitled to in the present case.

Will the defendant please stand up. For the above-said reasons, I sentence you to an imprisonment term of 14 years.