COURT: These are my reasons for sentence.
The defendant pleaded guilty in the Magistrate’s Court on 28 February 2014 to the charge of trafficking in a dangerous drug, namely 498.19 grammes of a crystalline solid containing 486.05 grammes of methamphetamine hydrochloride, commonly known as “Ice”, on 12 October 2013 and he was committed for sentence to the Court of First Instance.
The quantity of drugs involved have an estimated retail value at the time of seizure of HK$337,755.30.
A brief summary of the facts upon which he was convicted of the charge are as follows.
On 12 October 2013 the defendant departed Hong Kong at about 8.00 am through the Immigration Control Point at Lok Ma Chau and returned through this control point on the same day at about 5.20 pm. On his return, he was stopped by Customs Officers as he was behaving suspiciously. He was searched and it was found that he had six plastic bags of “Ice” taped to his waist.
He was arrested and cautioned, and he confirmed that he knew the drugs to be “Ice” but stated that: “It’s not mine. I collected it from people. I lost money in a mahjong parlour and a male called “To Kwo” said he would give $5,000 to me and asked me to carry it for him.” It was later changed that the amount that was offered was $3,000.
He claimed that the drugs were given to him in Shenzhen and he was instructed that after he got through clearance he was to go to Mong Kok and await a phone call for further instructions as to the delivery of the drugs.
At this time, he was asked by Customs Officers if he would be willing to carry out a controlled delivery of the drugs. He replied affirmatively and said he would be prepared to assist the Customs Officers in further investigation of the case.
He was then formally processed in the normal way upon the arrest and charge of an offender and as a consequence the opportunity to further investigate this case successfully was probably lost. In all likelihood, the members of the drug syndicate who had involved the defendant in delivery of the drugs would have been monitoring his movements and any undue delay or protracted detention of the defendant by the Customs Officers would have aroused their suspicion and tipped them off that something was wrong.
In fact, while he was being detained by the Customs Officers at the control point, he received a number of telephone calls on his mobile phone. I am told that he received phone calls on his mobile phone at 5.50, 5.52, 5.53, 5.59, 6 o’clock, 6.05, 6.24, 6.25, 6.36, 6.52, 7.03, 7.45 and 8.09 pm.
It was not until 8.30 pm that he was handed over to the Customs Drug Investigation Bureau. They then escorted the defendant to Canton Road, Mong Kok, to carry out a controlled delivery operation. During the journey to Mong Kok the defendant at 8.55 pm made a phone call to the alleged recipient of the drugs on the telephone number that had previously used in an attempt to contact him. The defendant informed the Customs Officers that the line could not be put through.
They arrived at Mong Kok at about 9.00 pm where they mounted a controlled delivery operation. The defendant made numerous telephone calls to the number he had previously used and another number he had as a contact at 9.05, 9.10, 9.18, 9.45, 10.02, 10.03, 10.05, 10.30 and 10.45 pm. There was no response to these calls as the line could not be put through. The operation was terminated at 10.45 pm.
One would expect a law enforcement agency to appreciate the importance in handling a controlled operation in a prompt and proper manner so as not to lose the opportunity to apprehend other persons involved in the trafficking of the drugs and not to alert such persons that the delivery of the drugs was likely being monitored by the authorities.
The war on drugs requires a dedicated preparedness on the part of law enforcement to pursue the major miscreants in a prompt and effective manner. This can only be achieved by law enforcement having the skills and training as well as the will, to seize opportunities to further investigate a case in a timely and efficient manner in order to pursue the principal offenders. Where more could have been done, it should have been done.
In this case, the defendant, almost immediately, admitted his wrongdoing and expressed his willingness to assist Customs Officers to carry out a controlled delivery. The ignoring of the telephone calls made to the defendant and the tardy response in mounting a controlled operation delivery, almost certainly doomed this operation to failure. I hope that my remarks will be appropriately taken note of by the relevant law enforcement agency.
I now turn to address the mitigation and sentence of the defendant.
He is 32 years of age and has two prior convictions for robbery and conspiracy to blackmail but those offences were committed a long time ago in 1995 when he was 14 years of age. In any event, it would appear that the offences were not serious as they were dealt with in the Magistrate’s Court and the sentence imposed on him was a probation order.
I was provided with an Antecedents Statement that I learnt during the course of mitigation was inaccurate in various respects. It is incumbent on law enforcement officers to obtain a full and accurate Antecedents Statement from a defendant as it provides an important and useful source of information for the purposes of sentencing. As it turned out, I learnt, for the first time, that the defendant had been married at a young age and that his wife left him soon after. They had a daughter and he has been caring for her ever since. She is now 13 years of age.
In 2010 he married for a second time a woman in the mainland. He frequently travelled to the mainland and, it was there he incurred a gambling debt playing mahjong.
I have received letters from his parents and sister as well as his daughter expressing their sorrow over what has happened and asking for leniency on his behalf. In a case of this type the personal circumstances of a defendant have little bearing on the sentence to be imposed.
It is a pity that he did not have in mind the impact this would have on his family and in particular his daughter, when he embarked upon this crime.
I am told that the defendant left school after completing secondary level 3 and that he has been in and out of work since then. He has variously worked as an electrician and computer technician. He is currently unemployed and the recipient of welfare benefits. It was claimed in the Antecedents Statement that he was not a drug user but I have been informed today that he has been using drugs and in recent times has been off them.
It is submitted on his behalf that he got involved in this offence to pay off a gambling debt. It is claimed that when he was given the drugs to deliver, he left them in a hotel room that he had rented in Shenzhen but returned to make the delivery because of urging and threats from To Kwo. The fact remains that he agreed to deliver the drugs into Hong Kong for both reward and extinguishing his gambling debt.
Other than his assistance to the authorities in further investigating the case and his plea of guilty, there are no other mitigating factors justifying a reduction in sentence.
According to the guidelines case of Ching Kwok Hung for a narcotic content of “Ice” of 486.05 grammes a starting point of 16 years and 6 months’ imprisonment should be imposed after trial.
There is also an international element to this offence in that the defendant committed it by bringing drugs into Hong Kong and for which, according to the authority of Abdallah, the sentence should be enhanced. I will accordingly enhance the sentence by 9 months.
The resultant starting point is therefore 17 years and 3 months’ imprisonment. The defendant is entitled to a one-third discount for his timely plea of guilty. I will reduce the sentence further by increasing the discount to 40 per cent for the assistance the defendant rendered to the authorities by his participation in the controlled delivery operation. It was no fault of the defendant’s that the controlled delivery did not prove successful.
Persons in the situation or circumstances of the defendant should be encouraged to assist the authorities in the further investigation of a case and the apprehension of others that may be involved.
As stated by Chief Justice Li in the case of Z v HKSAR that whilst it is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences it is also in the public interest that criminals should be encouraged to inform on other criminals in order to prevent, detect and prosecute other persons involved in crime, in particular the major miscreants. As he stated, the courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor.
In the case of HKSAR v Jardin Rodela Manings the Court of Appeal said, in a case in similar circumstances to the present one, that:
“It is our view that the applicant ought to have been given some credit for her preparedness to assist in securing the apprehension of the person or persons in Hong Kong to whom the drugs were to be delivered backed up as that agreement was by action on her part. It is important, as a matter of fact principle, to encourage arrested persons to assist in this way and in this case there was no empty offer of assistance but a practical engagement in the exercise the failure of which did not, in any way, lie at the door of the applicant. See also the case of HKSAR v Savvedra Rosamarie Benardo.”
An issue of this type will depend upon the particular facts and circumstances of the case and call for the court to consider the nature and quality of the assistance that has been rendered in order to evaluate whether it warrants a reduction in sentence. Not every case will produce results but the nature and quality of the assistance may, nevertheless, warrant specific recognition by an appropriate reduction in sentence and act as a general encouragement to others to do the same thing in similar circumstances.
For the above reasons, I impose a starting point of 17 years and 3 months’ imprisonment which I will reduce by 40 per cent and, accordingly, I sentence the defendant to 10 years and 4 months’ imprisonment.