HKSAR v. NOU SINARA

DCCC 554/2019

[2019] HKDC 1302

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 554 OF 2019

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REASONS FOR SENTENCE

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1.  This is a case of drug trafficking by air.

2.  The defendant, 37, a Canadian who has never been in trouble with the law before, flew into Hong Kong from Vancouver on the evening of 18 February 2019. At the arrival hall, he was caught smuggling a large quantity of herbal cannabis, customs officers first found in one of his suitcases 16 slabs of cannabis wrapped by towels and then 14 similar slabs in the other, he was thus arrested for drug trafficking.

3.  The drugs were subsequently examined by the government chemist who confirmed that they were herbal cannabis weighing 29.7 kg with an estimated street value close to 13 million.

4.  The defendant pleaded guilty before me to one count of drug trafficking - the drugs are 29.7 kg of herbal cannabis.

5.  He, never married, is currently cohabiting with a 28-year-old woman and they have a 5-year-old son, and moreover he has 3 daughters from his previous relationship - two of them are twins.

6.  Letters from his parents, family members have been submitted to the court, they all speak very highly of the defendant and ask for leniency on his behalf.

7.  In mitigation, the court heard that the defendant used to work in Canada as a scaffolding foreman but was made redundant upon completion of the project in 2017, and he could only work part-time thereafter until November 2018 when he became unemployed. Since then, he has been on the dole receiving C$1,200 a month until his arrest.

8.  Counsel for the defendant, Mr Woon, said that the defendant had lost his brother to suicide due to depression in May 2017 and as his brother wanted a grand funeral, the defendant therefore spent an awful lot on his funeral which resulted in drying up all his savings.  

9.  Being unable to support a large family, the defendant soon fell on hard times and was looking to supplement his incomes in any way possible. The opportunity came when a friend of his offered to pay him C$25,000 to smuggle the drugs in question into Hong Kong, and that was why he committed the offence. But he had not been paid yet, counsel said, because he was to receive the payment only after returning to Canada.   

10.  It is accepted by Mr Woon that there is aggravation in the instant case in that it involves an international element, and in all likelihood an enhancement of the sentence.  Mr Woon said the defendant’s remorse was genuine and asked this court to be as lenient as possible.

11.  With varying concentration of tetrahydrocannabinol, cannabis would come in 3 different forms, i.e., herbal cannabis, cannabis resin and cannabis oil. 

12.  In Lee Siu Kei CAAR 4/2005, the Court of Appeal talked about the sentencing guidelines for trafficking in cannabis by quoting a passage in another case:

“The sentencing guidelines for trafficking in cannabis in all its forms are to be found in Attorney General v Chan Chi Man [1987] HKLR 221. Roberts CJ, giving the judgment of the court said (at page 224), using phraseology which was echoed by the judge in the present case, that for “over 9,000 grammes” of cannabis resin, “4 years” imprisonment upwards” would be appropriate after trial. The Chief Justice continued by dealing with the approach to the remaining two forms in which cannabis is generally found, saying:

“So far, no clear distinction appears to have been drawn in sentences between cannabis in the three forms in which it commonly appears, that is to say herbal cannabis, cannabis resin and cannabis oil.

The principal psychoactive constituent in the cannabis plant is known as tetrahydrocannabinol.

The concentration of tetrahydrocannabinol in herbal cannabis is up to about 8% of the bulk weight. In cannabis resin, tetrahydrocannabinol concentration is about 15%. In cannabis oil, it is 60%.

It will, therefore, be open to the courts, if they think fit, to take into account the less damaging effect, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin and adjust the sentence accordingly.””

13.  In Lee Siu Kei, which was a review of sentence by the prosecution, the respondent, 23, admitted to trafficking 13.02 kg of herbal cannabis for which he was sentenced to Detention Center, in allowing the review, the Court of Appeal said in paragraph 18 of the judgment:

“In our opinion, a starting point of about 5 years, taking into account all the circumstances, including the fact that the respondent was on bail at the time of the offence, would have been appropriate but, having regard to the judge’s indication that she would have taken 4½ years, we proposed to adopt the judge’s lower starting point. Reducing this by a third to reflect the respondent’s plea of guilty, the resulting sentence would be one of 3 years. Given that this is a review and that the respondent has served about 5 months in the rigorous regime of a Detention Centre, we propose to substitute a sentence of 2 years and 9 months’ imprisonment for the existing order.”

14.  Drug trafficking is a heinous crime, and those who engage in such activities should not expect any mercy from the courts.

15.  The amount of drugs in the instant case is more than twice that amount in Lee’s case, even taking into account its less damaging effect than that of cannabis resin, for such an amount, I would adopt 6 years as the starting point. The fact that he was trying to smuggle drugs into Hong Kong is an aggravating feature and for that matter, I enhance the sentence by 6 months.

16.  As far as his mitigation is concerned, there isn’t anything of substance apart from his guilty plea which would give him a third discount. After giving the appropriate discount, the starting point of 6½ years is reduced to 52 months; there being no reasons for further reduction in sentence, the final term is one of 52 months’ imprisonment.