CRIMINAL CASE NO. 427 OF 2011
COURT: These are my reasons.
The defendant has pleaded guilty to trafficking in a dangerous drug, namely 0.87 of a kilogramme of a mixture containing 0.52 kilogramme of heroin hydrochloride and 0.13 kilogramme of monoacetylmorphine hydrochloride.
Around 1420 hours on 21 May 2011, the defendant, a holder of a Tanzanian passport, was selected for customs clearance at the Hong Kong International Airport when she arrived on a flight from Tanzania via Doha. The defendant was suspected to be concealing drugs internally and so was escorted to Queen Elizabeth Hospital for examination. An X‑ray examination showed foreign objects inside her body. The narcotic test of some of the pellets discharged indicated a positive result for heroin.
The defendant was arrested and cautioned. Under caution the defendant said that she used the heroin for herself but says now that that was just an explanation that she gave in order to reduce the seriousness of her conduct and that explanation I accept.
From 21 May 2011 to 26 May 2011 the defendant discharged in total 68 pellets of suspected dangerous drugs in the custodial ward of the hospital. The 68 pellets discharged by the defendant were seized for examination and were confirmed by the Government Chemist to contain the drugs particularised in the charge. The retail value of the seized dangerous drugs in the month of May 2011 was around $595,950. The defendant claims that she had no idea of the true value of the drugs she was concealing and I accept that to be so.
The defendant admits and accepts that she unlawfully trafficked in the dangerous drugs seized in this case and she has indicated, from the earliest stage, of her intention to plead guilty and of her remorse for her conduct.
However, the defendant’s plea has been delayed because of uncertainty over the nature of the monoacetylmorphine hydrochloride. There are two forms of monoacetylmorphine hydrochloride one of which is regarded as inactive in terms of its narcotic potency. Had this defendant been trafficking in the inactive form she would have been subject to a much lower sentencing band. But the form being trafficked by this defendant has now been confirmed to be the active potent form.
Consequently, for the purpose of sentencing this defendant the proper course, in my view, is to treat the heroin hydrochloride and the monoacetylmorphine hydrochloride as the same and sentence her for a total narcotic content of 650 grammes.
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 650 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 600 and 1,200 grammes a sentencing range shall be 20 to 30 years’ imprisonment.
Thirdly, the Court of Appeal has also said in the Abdallah case that should there be present an aggravating factor then the starting point should be enhanced. It listed a number of aggravating factors one of which is that an international element is involved in the commission of the offence. When drugs are transported across borders then an international element is involved and of course this is what happened in this case.
The court said that when the amount of drugs being trafficked is above 1 kilogramme the enhancement should be not less than 2 years’ imprisonment. Two years appears to have now become the norm for these larger amounts of heroin (see HKSAR v Lau Chun Sing [2011] 2 HKLRD 551). But for smaller quantities, such as the quantity in which this defendant trafficked, the amount of the enhancement is within my discretion.
As Miss Crebbin recognises, the existence of these sentencing tariffs leaves little room for mitigation. But notwithstanding this the 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 play some other role. Whatever their role, the sentence would generally be the same (see HKSAR v Manalo [2001] 1 HKLRD 557 at page 560G‑H). Secondly, the tariffs help to deter those who might otherwise be tempted by what they perceive as an easy and low‑risk means to substantial profits.
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 at page 908, paragraph 22). No such circumstances are present in this case.
Nevertheless, I still have some sentencing discretion. I can take into account the profit that might have been derived by the defendant 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 or she may have had in drug offences (see HKSAR v Abdallah [2009] 2 HKLRD 437).
But there are certain matters that the Court of Appeal has said cannot be treated as mitigation. Amongst such matters, and those that are relevant to the present case, are the fact that the defendant has a clear record, youth other than extreme youth, and the fact that the defendant is a foreign national for whom incarceration a long way from home will be more onerous than for a Hong Kong resident (see HKSAR v Bugaay [2008] 6 HKC 326).
Nor will financial need arising from an impoverished and disadvantaged background be a basis for discounting the sentence (see HKSAR v Somphaksorn Lamyai & Anor [2009] 1 HKC 437).
Notwithstanding these limitations imposed upon me, there is still some room, as I have mentioned, for the exercise of my discretion in determining the appropriate sentence for the defendant. Miss Crebbin has very helpfully provided me with some information on this defendant’s background, especially the dire situation of her family background and the circumstances that led to her involvement in this trafficking.
The defendant is a 31 years old single woman from Tanzania. She has completed secondary junior level education and prior to her arrest was a businesswoman. She has no criminal record in Hong Kong and, as I have indicated, has expressed through her counsel and directly to this court in a letter that she has written, great, and I believe genuine, remorse for her conduct.
I have no doubt that there is no need for the sentence of this court to contain any element of personal deterrence. However, sentences in drug trafficking cases are primarily designed to address the issue of general deterrence and are intended to send a message to those who might be tempted by drug trafficking of the consequences should they succumb to that temptation. However, as Miss Crebbin has rightly pointed out, that message may perhaps be better communicated, particularly in third world countries, where prospective traffickers may not be aware of the consequences they face should they be apprehended in Hong Kong or other foreign jurisdictions.
I accept that the defendant is as much a victim of the drug traffickers as Hong Kong and other countries into which drugs are trafficked are also victims of the drug trafficker. Her naivety and her ignorance were played upon and she was taken advantage of in order to persuade her to engage in drug trafficking.
These considerations provide me with some basis for exercising my sentencing discretion more favourably towards this defendant than I might otherwise have been inclined to do.
As the quantity is 650 grammes and the relevant sentencing band is 20 to 23 years’ imprisonment, I have decided to adopt the lowest starting point of 20 years. However, I have to take account of the fact that there is present the aggravating factor of an international element, but as I have said the enhancement to allow for this element is within my discretion and taking into account the circumstances as advanced by Miss Crebbin in her mitigation I shall only enhance the 20 years by a further 6 months.
The starting point for sentence then becomes 20 years and 6 months. I discount that sentence by one-third to allow for the plea of guilty. Notwithstanding the very early stage in which she indicated her intention to plead guilty I cannot give greater credit than the one-third discount for that fact. The resulting sentence then becomes 13 years and 8 months.
As I mentioned previously, the defendant has had her plea delayed and suffered the additional anxiety at what her sentence might be because of uncertainty surrounding the nature of the monoacetylmorphine hydrochloride, an uncertainty which was created solely by a lack of precision by the Government Chemist in the certificate that he provided. That further anxiety, I believe, is justification for me for discounting her sentence further and I do so by a period of 8 months. Apart from this additional discount, I can see nothing else in the mitigation to justify any further leniency.
The defendant is sentenced to 13 years’ imprisonment.
Ms Kionamera, I accept completely your remorse and I accept what your counsel has said most eloquently on your behalf. Your counsel will have explained to you that to some extent there are limitations on the leniency that I can allow you and I believe I have been as lenient as the law allows.
Your counsel will have explained to you that the Commissioner for Correctional Services does have a discretion to allow you some remission of sentence should you be of good behaviour and if you benefit from that, that will allow the sentence to be reduced further.