CRIMINAL CASE NO. 49 OF 2012
COURT: The defendant has been convicted after trial of trafficking in a dangerous drug, namely 1,754.44 grammes of a mixture containing 608.76 grammes of cocaine.
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. It is said that in such cases, the sentencing range is to be determined by the quantity of the narcotic being trafficked and not the mixture in which it is contained. Thus the quantity for which this defendant must be sentenced is 608.76 grammes.
The Court of Appeal has said that for amounts of between 600 and 1,200 grammes, the sentencing range should be 20 to 23 years’ imprisonment. However, the Court of Appeal has also said that should there be present an aggravating factor, then the starting point should be enhanced. One such aggravating factor 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 of Appeal said that when the amount of drugs being trafficked was above 1 kilogram, the enhancement should not be less than 2 years’ imprisonment, but when it was less, the amount of enhancement is within the discretion of the sentencing judge. 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.
In exercising such sentencing discretion as I have, I can take into account the degree of involvement of the offender and any previous involvement he may have had in drug offences (see HKSAR v Abdallah[2009] 2 HKLRD 437). Here, there is no evidence of any previous involvement by the defendant with drugs or, I should add, with any criminal conduct at all.
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 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 & Anor[2009] 1 HKC 437).
As the defendant complained of medical problems, I ordered a medical report to be completed on him. This report reveals that his general health is satisfactory, albeit he is HIV positive. I accept that notwithstanding this assessment of his general health, he continues to regularly suffer from relatively minor ailments which require treatment and, occasionally, that treatment has to be provided outside of prison. These other health problems may flow from his being HIV positive or from his chronic gastritis.
Although 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, I do not think that appellate authority prevents me from taking into account the possibility that the defendant’s HIV medical condition may make him something of a social outcast in prison and consequently make his prison sentence harder for him to endure.
Whether he is in fact an infectious danger to others is beside the point. People’s fear and perceptions of the disease, no matter how unfounded and ill-informed, will be what determines their social attitude towards him, and in the restrictive confines of a prison, I am not confident that the defendant will be met with a generosity of spirit from his fellow inmates. To that extent, I believe I am entitled to make some allowance for his condition.
I believe I am also entitled to make allowance for the fact that, as a result of his current medical condition and the likely future course that it could take with regular treatment for attendant ailments, that prison will be more difficult for him to endure than it might be for healthy inmates. I also take into account the fact that this case has been hanging over his head for some considerable period of time and that this has caused him much anxiety.
In the present case, the quantity of drugs is within the 20 to 23 years’ imprisonment band which covers trafficking in amounts between 600 to 1,200 grammes. As the quantity is 608.76 grammes, and taking into account all the mitigation to which I have referred, I adopt 20 years as my starting point.
Because there is present the aggravating factor of an international element, I must enhance that sentence but, again, taking into account all the mitigating factors, I shall only enhance that sentence by 3 months. The sentence then becomes 20 years and 3 months.
Notwithstanding all that has been very ably advanced on his behalf by Mr Bedford, I am not persuaded that there is any other aspect to his mitigation which would justify me granting him any further discount on this sentence.
The defendant is sentenced to 20 years and 3 months’ imprisonment.
Mr Henao, would you stand up. For the reasons which have just been interpreted to you, I sentence you to 20 years and 3 months’ imprisonment. In reaching this figure, I have of course been constrained by the comments of the Court of Appeal on how trial judges should sentence persons convicted of drug trafficking. However, I am not unsympathetic to your medical condition and I have extended to you as much leniency as I think I am entitled to do.
I should also say that Mr Bedford has advanced everything possible on your behalf and you have benefited from his advocacy. You may sit down.