The defendant is a 38 year old Zambian passport holder and on 15 April 2011 he arrived at Hong Kong International Airport on a flight from Bangkok. He was selected for Customs clearance. A search of his baggage and person proved negative but it was suspected that he may have dangerous drugs concealed internally.
He was sent to Queen Elizabeth Hospital for further examination and there an X-ray revealed the presence of suspicious objects in his abdominal cavity. The defendant was admitted to hospital and subsequently he discharged a total of 67 packets containing the dangerous drugs, the subject of the charge.
In respect of the substance known as monoacetylmorphine hydrochloride the forensic scientist who conducted the examination commented that like heroin hydrochloride, monoacetylmorphine hydrochloride is a narcotic analgesic with a potency similar to heroin hydrochloride and is controlled under the Dangerous Drugs Ordinance, First Schedule, Part 1, as a salt of an ester of morphine.
The seized dangerous drugs had an estimated retail value at the time of their seizure of HK$633,410.
In his cautioned interview the accused said that the drugs had been given to him by a friend in Bangkok and he had been told that they would be collected in Hong Kong and that when this happened he would then be paid. No particular amount of money had, however, been mentioned.
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 and not the powder in which it is contained. Thus the quantity for which this defendant must be sentenced is a total of 0.57 of a kilogramme of narcotic.
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 [1992] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There the Court of Appeal said that for amounts between 400 and 600 grammes the sentencing range is 15 to 20 years’ imprisonment.
Thirdly, the Court of Appeal has also said in the Abdallah case that should there be present any 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 was above one kilogramme the enhancement should not be 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.
The existence of the 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. As the Court of Appeal said in HKSAR v Manalo [2001] 1 HKLRD 557, it is important “to provide and maintain consistency of sentence between all offenders who traffic in dangerous drugs” and to avoid distinguishing between drug traffickers on the basis of the role they play. Whether the trafficker is a courier or storekeeper or has some other role, he should receive the same sentence.
Secondly, sentencing tariffs help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits.
As the Court of Appeal said in Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20:
“It is important to follow the guidelines so that people who engage in such evil business can be assured of the length of the inevitable custodial sentence, and hopefully such an approach will be a deterrent.”
In the same case the Court of Appeal made it clear that it requires exceptional circumstances to justify a departure from the guidelines. No such exceptional circumstances are present in this case that would entitle me to depart from the tariff band that applies to the quantity of drugs that this defendant trafficked. Nevertheless, I still have a discretion as to where within the tariff band I adopt my starting point.
There are certain matters that the Court of Appeal has said cannot be treated as mitigation, amongst such matters and relevant to this defendant are the fact that the defendant is a foreign national for whom incarceration a long way from home would be more onerous than for a Hong Kong resident, see HKSAR v Bugaay [2008] 6 HKC 326, or the fact that the defendant comes from an impoverished and disadvantaged background, see HKSAR v Somphaksorn Lamyai & Anor [2009] 1 HKC 437.
The defendant is 38 years of age and is a citizen of the Republic of Zambia. He is not a drug addict and has no criminal record in Hong Kong. He is married with three children and a fourth is on the way. He seems to have been tempted by the prospect of easy money and to a person from a third-world country such a temptation must be hard to resist.
Defendant, stand up. In the present case the quantity of drugs is within the 15 to 20 years’ imprisonment band as it covers trafficking in 0.57 of a kilogramme. As the quantity is above 0.50 of a kilogramme I adopt 19 years’ imprisonment as my starting point.
Because there is present the aggravating factor of an international element I enhance that sentence by 6 months. The starting point for sentence then becomes 19 years 6 months’ imprisonment.
I discount that sentence by one-third to allow for the plea of guilty. The resulting sentence is 13 years’ imprisonment. Despite what has been said by Mr Lo I can find nothing in the mitigation to justify any further discount of the sentence.
You are sentenced to 13 years’ imprisonment.