CRIMINAL CASE NO. 109 OF 2009
COURT: Tsang Wai-hei, you have pleaded guilty in the magistracy to trafficking in 133 grammes of methamphetamine hydrochloride and you have been committed for sentence to the Court of First Instance. The sentence I am going to impose upon you is one of 8 years' imprisonment.
The simple facts of the case are that on 12 December 2008, you were caught trying to smuggle these dangerous drugs strapped to your leg through the Customs Control of Lok Ma Chau border crossing from Shenzhen. You said then that you were doing so for somebody else and were to be paid a reward of $2,000.00. The estimated street value of those dangerous drugs is about $91,000.00.
You are 27 years of age and have no significant record of offending and there is no evidence of previous involvement in dangerous drugs. You have family here in court, your parents and other relations, who stand by you. Indeed, I have been given a letter from your father emphasising the foolishness of your actions and pleading for mercy on your behalf.
I have no doubt that you regret the anguish which you have caused to your family but I am confident that they will continue to stand by you whilst you serve this sentence of imprisonment and that they will assist you in your rehabilitation when you are released.
I am told today that you became involved in this matter because of a gambling debt and, having gone to the Mainland, the drugs were forcibly attached to your body. It is not suggested, however, that you were committing this offence in an involuntary manner or that you were acting under duress. Apart from anything else, even on your own account, you had the opportunity to inform the authorities of what was happening and to escape any pressure; and you went through the "Nothing to Declare" channel at the border.
I do not need to decide on the truth of the version of events that you have given in court today because it can have no effect on the approach to sentence.
I have no doubt that you have been told that sentences for trafficking in dangerous drugs follow guidelines set by the Court of Appeal, according to the type of drug involved and the quantity of that drug. This is so that different cases are dealt with on an equal basis and there is a consistent approach by the courts in dealing with different defendants. So, in your case, the quantity of dangerous drugs which is relevant for the purpose of assessing the appropriate sentences is 133 grammes.
Sentencing guidelines for methamphetamine hydrochloride were set as long ago as 1991. The Court of Appeal pointed out that this is a highly addictive drug. The advice that the court had received was that it is more addictive than heroin and that a user can become addicted by a single dose. That characteristic, taken together with the ease of manufacture and the intense effects of the drug, led the court to the view that methamphetamine hydrochloride is as serious if not more serious than heroin; but because it was almost always sold in a pure form and not cut or adulterated for sale, separate guidelines were laid down by the court.
These guidelines relate to trafficking in methamphetamine hydrochloride within Hong Kong; but I must tell you that it is very well established, and has recently been re-affirmed by the Court of Appeal in another case, that those who engage in cross-border trafficking in dangerous drugs, importing them into Hong Kong through the airport or across land boundaries with the Mainland, commit a more serious offence. So those like you who act as cross-border couriers of dangerous drugs are to be dealt with on that aggravated basis. It does not make any difference that the importation is from the Mainland rather than from a different nation because the point about this aggravation is that the offender is bringing the drugs into Hong Kong for distribution to drug addicts here perhaps by other people. That is the particular menace at which this aggravation is aimed.
For very large quantities over a kilogram, the sentence is to be enhanced by not less than 2 years' imprisonment. Following the guidelines for trafficking in methamphetamine hydrochloride, it is evident that the appropriate starting-point for sentence before considering the aggravation of cross-border trafficking is 11 years' imprisonment. You fall into the bracket covering quantities between 70 and 300 grammes for which a sentencing band of 10 to 14 years' imprisonment is stipulated. To that, I judge that a period of 1 year should be added to reflect the aggravation to which I have referred. I use one year rather than the two years because of the lower quantity. So the sentence before discount for mitigation should be 12 years' imprisonment.
The mitigation you have is to be found in your plea of guilty. That will result in a discount of one-third from that 12-year term because that is the sentence that you would have got if you had been convicted by a jury after trial. The discount for your timely plea is 4 years and so you must serve a sentence of 8 years' imprisonment.
The guideline case for methamphetamine hydrochloride which I have applied is a case called Ching Kwok Hung [1991] 2HKLR 125. It is now 18 years now but it has been consistently applied and is binding on this court. I note that it involved trafficking entirely within Hong Kong, hence the enhancement is appropriate in the present case. The Court of Appeal has very recently re-affirmed this aggravating feature of cross-border trafficking in a case covering heroin/cocaine trafficking called Abdallah Anwar Abbas CACC304/2008. The principles set out in that case have equal application to trafficking in methamphetamine hydrochloride.