CRIMINAL CASE NO. 83 OF 2012
COURT: The defendant has pleaded guilty to trafficking in a dangerous drug, namely 139.2 grammes of a mixture containing 109.32 grammes of heroin hydrochloride.
The offence came to light in the following way. At around 2125 hours on 19 September 2011, Customs & Excise Department officers were conducting anti-narcotic patrol duty in the Mongkok area. They noticed the defendant walking suspiciously along Nelson Street, Mongkok. The defendant entered Lok Yuen House at No. 2L Nelson Street and the officers followed him.
He was intercepted at the staircase on the 1st floor of the building. Having revealed their identity, one of the officers conducted a search of the defendant. As a result, one plastic bag containing five Ziploc bags of suspected dangerous drugs was found concealed inside the defendant’s underpants.
The defendant was arrested and cautioned. In reply, he admitted, inter alia, that the drugs were white powder and were for self-consumption because of his stomach-ache problems.
The drug exhibits were examined by a Government Chemist and found to consist of 139.2 grammes of a mixture containing 109.32 grammes of heroin hydrochloride. The dangerous drugs had a street value estimated at $109,828.80 dollars.
The defendant now admits that at all material times, he possessed the dangerous drugs particularised in the charge for the purpose of unlawfully trafficking.
In different cases, the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug trafficking offence. The first is that the sentencing range for heroin is to be determined by the quantity of the narcotic being trafficked, not the powder in which it is contained. Thus the quantity for which this defendant must be sentenced is 109.32 grammes.
Secondly, the sentencing ranges for trafficking in heroin are to be taken from the guidelines laid down by the Court of Appeal in R v Lau Tak Ming & Ors [1992] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There, the Court of Appeal said that for amounts between 50 and 200 grammes, the sentencing range should be 8 to 12 years’ imprisonment.
The existence of these sentencing tariffs leaves little room for mitigation but, notwithstanding this, the sentencing tariffs play a very important role for two main reasons. Firstly, they lead to consistency in sentencing and avoid distinctions being drawn between drug traffickers based upon the nature of their trafficking, whether they be couriers, storekeepers or some other role. Whatever the role played by the trafficker, the sentence will generally be the same (see HKSAR v Manalo [2001] 1 HKLRD 557 at page 560G to H). Secondly, they help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits (see Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20).
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines and that whilst a sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands (see Chan Ka Wah case, page 908, paragraph 22). No such exceptional circumstances are present in this case.
Nevertheless, I still have some sentencing discretion. I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender and any previous involvement he may have had in drug offences (see HKSAR v Abdallah [2009] 2 HKLRD 437).
The defendant is 56 years of age. He only has lower secondary education and works as a decoration worker. He has been in trouble with the law since he was 28 years of age. He has 24 previous convictions arising from 15 separate prosecutions. He has been a drug user since he was 38 years of age.
Of his 24 convictions, 10 are for possession of dangerous drugs, three are for trafficking in dangerous drugs, two are for keeping a divan, and one for possession of a Part I poison. Other offences include robbery, theft and obscene article offences. He was last convicted of a dangerous drug offence in 2005 when he was sentenced by the District Court to 14 months’ imprisonment for trafficking. Since then, his convictions have been unrelated to dangerous drugs but he still remains a drug user.
In the present case, the quantity of drugs is 109.32 grammes and so is within the 8 to 12 years’ imprisonment band as that band covers trafficking in amounts between 50 to 200 grammes. Notwithstanding his criminal record, given his age and the other circumstances advanced by his counsel in mitigation, I am willing to give him one last chance. As the quantity is 109.32 grammes, I adopt 9 years as my starting point.
I discount that sentence by one-third to allow for the plea of guilty. The resulting sentence is 6 years’ imprisonment. Despite what has been said by the defendant’s counsel, I can find nothing in the mitigation to justify a further discount of that sentence. The defendant is sentenced to 6 years’ imprisonment.
Mr Luk, stand up, please. For the reasons I have given, you are sentenced to 6 years in gaol. For many years now, your life has been one where you are involved incessantly in the criminal law, incessantly before the courts and continuously in gaol. You are now 56 years of age and still a drug addict. One thing of which you can be proud is that you have a son who is doing well at university.
There is little of your youth left. When you come out of gaol, you will be around 60 years of age. If you wish to take any pleasure from your future life, you will have to rid yourself of your drug addiction. You will also have to remove yourself from involvement in criminal conduct. If you do not, you have a very bleak future.
I would have been perfectly entitled to adopt a higher starting point in this case to reflect your appalling criminal record. Whether you prove worthy of the last chance I have given you remains to be seen but I have no doubt there will be no further chances. Should you come out of gaol and commit further offences, you will receive no sympathy or leniency from the courts. As to what happens in your future life is entirely in your own hands. You may sit down.