CRIMINAL CASE NO. 46 OF 2012
COURT: The three accused have been convicted on their own pleas of the following drug offences: the 1st and 3rd of jointly trafficking in a dangerous drug, namely methamphetamine hydrochloride, commonly known as “Ice”; the 1st accused of a further offence of trafficking in “Ice”; and, together with the 2nd accused, of the offence of trafficking in a purported drug, namely methamphetamine.
The facts, which the accused have admitted, reveal that the police conducted an undercover operation in which three of their officers posed as prospective customers for the purchase of “Ice”.
On 15 September 2011, contact was made with the 1st accused, and subsequently an undercover officer boarded a private car being driven by the 1st accused and in which the 3rd accused was a passenger. The undercover officer handed $2,500 to the 1st accused, who then instructed the 3rd accused to hand over a package of drugs to the undercover officer. This transaction is the subject of the 1st count.
A similar transaction took place on 22 September 2011 involving the 1st accused only. This transaction resulted from a telephone call that was initiated by the 1st accused and made to one of the undercover officers. It is the subject of the 2nd count.
On 8 October 2011, the 2nd accused contacted the undercover officer for the purpose of supplying the undercover officer with half a kilogramme of “Ice” which the undercover officer had previously negotiated to purchase. The transaction was carried out by the 1st accused, who had in his possession what was subsequently confirmed to be sugar. This bogus drug transaction is the subject of the 4th count.
Counts 1 and 2
In a number of different cases, the Hong Kong Court of Appeal has set out the principles and sentencing guidelines for judges to follow when sentencing a defendant convicted of a drug trafficking offence.
The first is that the sentencing ranges for trafficking in “Ice” are to be taken from the guidelines laid down by the Court of Appeal in Attorney-General v Ching Kwok Hung[1991] 2 HKLRD 125 as amended by HKSAR v CapitaniaCACC 28/2004. In those cases, the Court of Appeal said that where the amount of “Ice” being trafficked is up to 10 grammes, the sentencing range should be from 3 to 7 years’ imprisonment.
In the present case, the quantity in which the 1st and 3rd accused trafficked in the 1st count is 5.73 grammes of “Ice”, and so they are placed in the 3 to 7 years’ band for sentencing purposes.
In respect of the 2nd count, the 1st accused trafficked in 6.20 grammes, and so in respect of this offence is placed in the same sentencing band.
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 should normally be within the suggested bands. See Secretary for Justice v Chan Ka Wah[2008] 4 HKLRD 904 at 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 the involvement of the offender and any previous involvement he may have had in drug offences. See HKSAR v Abdallah[2009] 2 HKLRD 437. These and other matters advanced in mitigation impact upon where, within the relevant sentencing band, I should adopt my starting point.
Count 4
There are no appellate guidelines on how a trial court should approach the sentencing for section 4(a) offences. The Court of Appeal did examine the history of the offence in R v Lee Wing Chun[1982] HKC 653, but in doing so, did not identify any particular mischief at which the offence is aimed other than the conduct it criminalised.
I have therefore turned for assistance in understanding the rationale for the offence to the Hansard record of the Legislative Council proceedings. On 25 June 1980, the Secretary for Security, who was the proposer of the bill, said, in his second reading speech:
“During 1979, owing to the shortage of illicit drug supplies, there have been numerous cases of attempted sales of narcotics where either the drugs were not in existence or were fake powders purporting to be dangerous drugs. In 1979, 338 cases of counterfeit heroin, representing about 10 per cent of all heroin seizure cases made during the year, and other substances purporting to be dangerous drugs were detected. Although the Dangerous Drugs Ordinance provides for the offence of offering to traffic in a dangerous drug, it does not cover cases where the party offering to traffic in a substance purporting to be a dangerous drug knows that what he is offering is not a dangerous drug. While he may be charged with deception, legal advice is that in the overt circumstances of such an offence it is extremely difficult to secure a conviction before (sic) of the necessity of having to establish a dishonest intention. The bill now proposes that such case should be made an offence in the same way as an offence to traffic in dangerous drugs, but with penalties corresponding to those provided for the offence of deception. The need to prove a dishonest intention would be eliminated.”
Though enacted to deal specifically with counterfeit narcotics, it applies to all dangerous drugs and therefore criminalises the conduct of trafficking in counterfeit prescription medicines. Looked at in this light, the primary victim of this offence would be the end user of the counterfeit dangerous drug, but secondary victims could be chemists and others who are authorised to deal in dangerous drugs.
But the victim who is at real risk is the primary victim, for it is the potential consumer who may, depending on what is or is not in the bogus drug, be harmed if this person is deceived into using it. For illicit drugs, the harm will usually flow from what is in the counterfeit substance. For pharmaceuticals, the harm will usually flow from what is not in the counterfeit medication.
However, no one was in fact harmed by use of this bogus drug, and because it was only sugar, I assume no one was at risk of being harmed. Nevertheless, when the dangerous drugs being counterfeited are illicit drugs, then the primary victims, namely the drug users, are a vulnerable class of person easily exploited by virtue of their addiction.
In terms of sentencing, I note that the offence was seen as a form of fraud, and the maximum penalty was intended to correspond to the penalties provided for deception offences.
Returning to the case of R v Lee Wing Chun, I note that it bears many similarities to the present one. It also arose from an undercover operation and involved a large quantity of starch that the defendant pretended was heroin. The Court of Appeal reduced the sentence from 4 years to 2 years.
I shall now deal with each accused.
The 1st Accused
The 1st accused is 35 years of age, with little education and no qualifications. From age 16 onwards, he has been in constant trouble with the law. He has been on probation twice, sent to DATC twice, and served sentences for imprisonment for robbery - 32 months in 2000; wounding - 12 months in 2005; and trafficking in a dangerous drug - 88 months in 2005.
On his release from prison, he obtained employment and developed a stable relationship with a woman who became his fiancée. Despite these positive influences in his life, he succumbed to the temptation to engage in drug trafficking when the opportunity arose, and used it to resume his consumption of “Ice”.
However, he now expresses remorse and asks for one last chance. He says he is determined to rid himself of his drug habit and live a law-abiding life. He has the support of his fiancée and his mother. His mother is recovering from cancer, and it may be that the costs associated with her treatment prompted him to turn to drug trafficking to earn extra money. His employer has also written a letter of support for him.
In view of what has been advanced on his behalf and the support that he has from those close to him, I am minded to extend to him such leniency as the law allows me.
In respect of the 1st count, as the quantity of drugs is 5.73 grammes, I adopt 5 years as my starting point. I discount this sentence by one-third to allow for the plea of guilty. The resulting sentence is 3 years 4 months, and that is the sentence I impose.
For the 2nd count, which is a similar act of trafficking in a slightly higher quantity of the same drug, I adopt the same starting point as for the 1st count - that is, 5 years’ imprisonment - discount it by one-third to allow for the plea of guilty, and impose a final sentence of 3 years 4 months’ imprisonment.
The 1st accused has also been convicted of trafficking in a purported dangerous drug. The facts, which he has admitted, reveal that he offered to sell to an undercover officer half a kilogramme of “Ice” for $155,000, but when the 1st accused was arrested, it transpired that the substance he had in his possession to sell to the undercover officer was sugar. This offence carries a maximum penalty of 7 years’ imprisonment.
Given the quantity of bogus drugs and the amount of money involved in this transaction, I adopt 2 years as my starting point, and discount that by one-third to allow for the plea of guilty. I impose a sentence of 1 year 4 months’ imprisonment on the 1st accused in respect of this offence; that is, the 4th count.
For each of the offences of which the 1st accused has been convicted, he has sentences therefore of 3 years 4 months, 3 years 4 months, and 1 year 4 months’ imprisonment. To reflect the added culpability of these separate offences and yet not impose a crushing sentence on the 1st accused, I believe a total sentence of 5 years 4 months’ imprisonment is appropriate.
I achieve that total sentence by ordering that 2 years of the sentence of 3 years 4 months’ imprisonment for the 2nd count shall be served consecutively to the sentence for the 1st count, and the sentence of 1 year 4 months’ imprisonment for the 4th count shall be served concurrently with the sentences for the 1st and 2nd counts.
The 2nd Accused
The 2nd accused is aged 31 and has been educated to the end of Form 5. He has had casual employment from the age of 18 in different areas of work. Since that age he has also been in regular breaches of the law, and been placed on probation twice and sent to DATC once. His longest period of imprisonment was 3 years 4 months and was for trafficking in a dangerous drug.
The 2nd accused’s involvement in Count 4 was motivated by greed and the opportunity to earn a large amount of money. He never had any ability to provide the drugs because, he says, he never had access to drugs in this quantity. As far as he was concerned, he was being asked to participate in a fraud.
The 2nd accused is remorseful, and asks to be extended leniency. He says he is determined to turn over a new leaf, and to this end has enrolled in a course of study which he can pursue whilst in prison.
The only offence of which the 2nd accused has been convicted is trafficking in a purported dangerous drug. This is the offence contained in the 4th count, of which the 1st accused has also been convicted.
I have decided to adopt the same starting point for him of 2 years’ imprisonment, discount it by one-third to allow for the plea of guilty, and impose on him a sentence of 1 year 4 months’ imprisonment.
The 3rd Accused
The 3rd accused is 35 years of age and only has Form 1 education. He has had intermittent employment since age 15. He has been regularly in trouble with the law since age 17, all for drug offences. He has been placed on probation twice and sent to DATC on three occasions. He has progressed from possessing dangerous drugs to trafficking in them. In 2005 he was sentenced to 5 years 4 months’ imprisonment for trafficking in a dangerous drug, but this clearly did not deter him, for in 2009 he was sentenced to 40 months’ imprisonment for another trafficking offence.
He was discharged from this sentence on 4 April 2011, and within seven months committed the present offence.
This accused says he is remorseful, and claims that he wishes to turn over a new leaf. He has the support of his family, and says that living with them and enjoying their love and support has had a profound effect on him. He promises not to reoffend, and asks for leniency.
The 3rd accused has been convicted of jointly trafficking with the 1st accused in 5.73 grammes of “Ice”, the 1st count. As with the 1st accused, I adopt the same 5 years’ starting point for the 3rd accused, discount it by a third to allow for the plea of guilty, and impose a sentence of 3 years and 4 months’ imprisonment.
Would the accused stand up, all three of them?
You have heard the reasons I have given for my sentences.
For you, Chiu Wai-lun, I sentence you to a total of 5 years and 4 months’ imprisonment.
For Tsang Chi-ming Makise, I sentence you to 1 year 4 months’ imprisonment.
And for you, Yip Ka-man, I sentence you to 3 years 4 months’ imprisonment.
All of you have appalling criminal records, and none of you deserve any sympathy or leniency, but I have been encouraged by what you have said to me in your letters to me and by the support that has been shown to you by those who love and care for you. I am especially encouraged by the support of those who love and care for you to give to you the leniency that you have sought.
For each of you, because of your poor criminal record, I could have adopted far higher starting points in determining your sentences. This is your last chance, and it is entirely up to you as to what you make of it. From the time of your teenage years to now, you have spent most of that time either in gaol or under supervision by Criminal Justice officers. You have wasted your youth and you are now in your 30s. By the time you complete your sentences you will be in your mid to late 30s.
You will have a choice to make on your release from prison. You can pursue a path of crime, which will only see you returning to prison, or you can pursue a path which may give you some happiness in life. What path you choose will be up to you, but I hope that with the support of those who care for you, you will choose the right path.
You all know that the Commissioner for Correctional Services has the right to discount your sentences further should you be of good behaviour in prison. This will shorten the sentences further. But none of you have particular qualifications or skills which will make it easy for you to obtain employment on your release. Without employment it will be very easy to be tempted back into drug trafficking.
I urge you therefore to use your time in prison to do whatever courses, take advantage of whatever courses are available, to acquire some skills which will assist you in gaining employment upon your release.