CRIMINAL CASE NO. 428 OF 2011
COURT: The defendant has pleaded guilty to trafficking in a dangerous drug, namely 1.45 kilogrammes of a mixture containing 0.79 kilogrammes of heroin hydrochloride and 0.13 kilogrammes of monoacetylmorphine hydrochloride.
On 22 May 2011 the defendant, a Tanzanian national, arrived in Hong Kong on flight QR812 from Dar Es Salaam via Doha, Qatar. She was intercepted by Customs officers for Customs clearance. She was taken to the Queen Elizabeth Hospital, where an x-ray check revealed the presence of foreign objects inside her body cavity. She was thereupon arrested.
Between 22 and 23 May 2011 she discharged a total of 125 pellets of suspected dangerous drugs in the hospital. The 125 pellets were examined by a Government Chemist and found to consist of the drugs particularised in the charge.
The defendant was interviewed under caution, and admitted the following:
(a) an unknown male gave her some pellets to swallow in Tanzania before departure to Hong Kong;
(b) she swallowed a total of 125 pellets knowing they were drugs;
(c) she took the flight QR812 from Doha to Hong Kong;
(d) she had financial problems; and
(e) she expected to receive a reward of US$9,000 for bringing the pellets into Hong Kong.
The retail value of the seized drug as at May 2011 is estimated to have been $993,250.
The defendant’s plea has been delayed because of uncertainty over the nature of monoacetylmorphine hydrochloride. There are two forms of monoacetylmorphine hydrochloride, one of which is regarded as inactive in terms of its narcotic potency.
The form being trafficked by this defendant has now been confirmed to be the active, potent form. Consequently, for the purposes of sentencing this defendant, I shall treat the heroin hydrochloride and the monoacetylmorphine hydrochloride as the same, and sentence her for a total narcotic content of 920 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 0.92 kilogrammes, or 920 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 and Others [1992] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There, the Court of Appeal said that for amounts between 600 to 1200 grammes, the sentencing range would be 20 to 23 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 was above 1 kilogramme, the enhancement should not be less than 2 years’ imprisonment. 2 years appears to have now become the norm for these larger amounts of heroin - see HKSAR v Lau Chun Sing [2011] 2 HLKRD 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 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 have 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 560 G‑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.
Nevertheless, I still have some sentencing discretion. Amongst the matters that I can take into account are the profit that might be derived from the trafficking, the number of packets or pellets, the type of mixture containing the narcotic, the degree of involvement of the offender and any previous involvement the offender may have had in drug offences.
But there are certain matters that the Court of Appeal has said cannot be treated as mitigation. Amongst such matters, 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 would 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 and Another [2009] 1 HKC 437.
The defendant is a 33-year-old female of Tanzanian nationality. She has no criminal record in Hong Kong. She has some secondary education and was working as a self‑employed merchant, earning around US$350 per month before her arrest. She is a widow, with a 15-year-old daughter. Both her parents are deceased.
There is no doubt that the defendant has had a difficult life. She may well feel that life has treated her unfairly. Coming from a third world country and struggling to support a family and keep a business running, she has had to endure considerable suffering and hardship. Her husband transmitted HIV to her. He incurred debts which destroyed the family business, and then, by killing himself, left her to fend for herself.
However, all these difficulties do not justify her decision to become a drug trafficker. The Court of Appeal has made it very clear that a medical condition is not a licence to commit crime and cannot be used to justify a lesser sentence than would otherwise be appropriate.
However, I do not think that appellate authority prevents me from taking into account the likelihood that the defendant’s HIV medical condition will make her something of a social outcast in prison, and consequently make her prison sentence harder for her to endure. Whether she is in fact an infectious danger to others is beside the point. People’s fears and perceptions of the disease, no matter how unfounded and ill‑informed, will be what determines their social attitude towards her, and in the restrictive confines of a prison, I am not confident that the defendant will be met with a generosity of spirit from her fellow inmates. To that extent, I believe I am entitled to make some allowance for her condition.
In the present case the quantity of drugs is within the 20 to 23 years’ imprisonment band, as it covers trafficking in 600 to 1200 grammes. 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 the Chan Ka Wah case at page 908 paragraph 22.
Despite what Miss Crebbin has said, I am not persuaded that any such exceptional circumstances are present in this case, and I therefore am bound to adopt a starting point within this 20 to 23 years band.
Allowing for the matters advanced in mitigation, I shall adopt, within this band, a lower starting point than I would otherwise have been minded to adopt given the quantity of drugs. For the same reasons, I shall also enhance this starting point by a little less than the quantity might have otherwise warranted.
I adopt 20 years as my starting point. Because of the presence of the aggravating factor of an international element, I enhance the sentence by 9 months. The final starting point for sentence then becomes 20 years and 9 months. I discount that sentence by one-third to allow for the plea of guilty.
The resulting sentence is 13 years and 10 months’ imprisonment.
However, the defendant has had her plea delayed and suffered additional anxiety at what her sentence might be, all of which could have been avoided had the Government Chemist provided greater precision in his certificate.
I discount her sentence by a further 10 months to allow for this factor.
Apart from this, there is nothing else in the mitigation to justify a further discount of the sentence.
The defendant is sentenced to 13 years’ imprisonment.