COURT: Defendant, you pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You admitted that on 26 May 2013, in Hong Kong, you unlawfully trafficked in dangerous drugs, namely 793.93 grammes of a mixture containing 440.10 grammes of heroin hydrochloride and 105.32 grammes of 6-monoacetylmorphine hydrochloride.
On 25 May at about 2.40 pm, you were found by police officers, unconscious, I am informed by your counsel, in Tsim Sha Tsui. An ambulance was called, however, at that time, you declined assistance and left the scene. Later that day, you sought medical treatment at the Queen Elizabeth Hospital. There, you were admitted.
In the early hours of 26 May, the police were informed that, upon examination, there were packets of dangerous drugs in your body. An emergency surgery was carried out and 84 packets were recovered from your intestines. Some packets, however, could not be removed and they were eventually discharged by yourself or recovered from your anus. The total number of packets were 89 packets which contained the amount of drugs as mentioned in the charge sheet.
You were arrested and remained silent. The retail value of these dangerous drugs was estimated to be around HK$636,731. You had arrived in Hong Kong the day before, on 24 May. You are South African.
Defendant, Mr Leslie Parry has mitigated fully and thoroughly on your behalf and I have taken into consideration all that he has had to say for you. You are 34 years of age and have a clear record. You are from South Africa and you came here to Hong Kong, having swallowed these pellets on your journey to Hong Kong from South Africa. I am informed that you took the flight from Johannesburg, then when you arrived in Tanzania, that is when you swallowed these pellets.
On the flight over, you had felt unwell. It now transpired that the reason why you were feeling unwell was because one of the packets had burst. You were hallucinating and, eventually, when you arrived in Hong Kong the following day, you admitted yourself into hospital.
In short, Mr Parry has said that you have suffered a near-death experience as a result and since your admission to the hospital in May and being remanded in custody last year, you have spent a considerable amount of time in hospital rather than at the Lai Chi Kok Prison as a result of the consequences of the bursting of this packet of heroin.
Mr Parry has also referred me to a medical report dated 12 May which informs me that as a result of this, you suffer from renal failure and, in due course, as a result of the surgery, there has been a hernia around your stomach area and, for that, once you are stronger, perhaps later in this year, you will need further surgery on that.
He has sought to persuade this court, though he knows that it might not be accepted, that as a result of your near-death experience, the court should take this into mitigation and start at a lower starting point.
The reason why, he says, you committed this offence was as a result of your financial woes in South Africa. You are a trained motor mechanic and bricklayer and prior to committing this offence, you were working as a bricklayer in Capetown. You, however, had difficulty finding employment because of a policy to employ coloured or black people in South Africa. Eventually, this led to you sleeping on the street and somebody had suggested to you to traffic in these drugs to Hong Kong and promised you a sum of US$3,000. This is what you agreed to do to finance yourself. I am informed you received only US$500 plus flight expenses.
As regards your background, despite being white, Mr Parry says, you are not from a wealthy family; in fact, your family has been poor and you have had a poor upbringing.
Mr Parry rightly refers me to the case of Lau Tak Ming as the guiding tariff case for trafficking in heroin. The guideline is that for between 400 and 600 grammes of narcotic, a sentence of imprisonment of between 15 to 20 years as a starting point would be appropriate, after trial, that is if you were convicted after trial.
Mr Parry has sought to ask this court to start at as low a starting point as possible. He has submitted to me various cases. Those are Hong Kong SAR v Kharim Mohamed Omari, HCCC 265/2011, and a case of HCCC 264/2011, Hong Kong SAR v Masham Deborah James and a case of CACC 360/2013, Hong Kong SAR v Law Num Chun.
In the first two cases I have mentioned, Mr Parry has referred me to the quantity of drugs in those cases and asked me to take a similar starting point because they are of similar quantities. In the case of CACC 360/2013, a case by Stock VP earlier this year, he has referred me to the paragraph wherein the experienced Vice President says:
“The question of appropriate application of the dictum in Lau Tak Ming is long overdue in regard of the sentencing suggested factors and band.”
I have taken these matters into account when considering my sentence. Quite correctly, this court is bound by sentencing tariffs, however we are not tied and it is not a mathematical approach. The courts do take into account the various factors expressed in Lau Tak Ming.
The amount of drugs in this case was 545.42 grammes of heroin. This is quite a large amount of drugs and you swallowed these drugs knowing that you were going to be trafficking in these drugs and bringing them into Hong Kong from Tanzania. As for that aspect, that is of course a cross-border trafficking and that in itself adds an international element to your offence. This requires an enhancement to the starting point as this is an aggravating factor as you were trafficking and importing drugs into Hong Kong. The guiding case on that is the Hong Kong SAR v Abdallah Anwar Abbas case.
Defendant, as regards your near-death experience, I do have every sympathy for you as a result of the leakage of the heroin and the consequences that it has caused you. I understand that you have now suffered from lifelong consequences of renal failure and protein and vitamin D deficiency.
Although I myself have every sympathy for the predicament that you are in, this was a risk that you took when you swallowed these drugs. There were two risks here: a risk, obviously, that you would be caught and put in prison for a very, very long time; the other risk is that you knew the packets, or a packet, could burst or leak and as a result of that, there would be severe or fatal consequences. You did this knowing that this could happen.
I cannot, in those circumstances, feel, or take into account that these are mitigating factors. I understand clearly the anxiety that you are now experiencing and the period of time you have had to spend in hospital as a result of this but I can only say that you did this with your eyes wide open and with that knowledge.
I only equate that to the fact that if a burglar is going to burgle a flat 12 storeys high and if he manages to burgle and escapes while the home owner is returning by going out of the window and falls down 12 storeys and severely injures himself, I cannot see how the court can give him any further mitigation or reduction on that point. In those circumstances, Defendant, this, as I say, was brought upon by yourself.
Defendant, you are, 34 years of age and of clear record.
For the amount of drugs that you were trafficking in, I consider a starting point, had the jury convicted you after trial, of 18 years’ imprisonment to be appropriate. As I mentioned earlier, there is an aggravating factor to enhance this starting point as a result of you importing these drugs into Hong Kong. I take a further 6 months’ imprisonment as an enhancement.
Your most powerful and strongest mitigating factor is your plea of guilty. As a result, I give you the full one-third discount and therefore you shall be sentenced to 12 years and 4 months’ imprisonment.