CRIMINAL CASE NO. 372 OF 2011
COURT: The defendant has pleaded guilty to trafficking in a dangerous drug, namely, 2,030 grammes of a mixture containing 1,240 grammes of heroin hydrochloride.
On 16 March 2011 the defendant with two of her three children, those were 7 years old and 10 months old, and another Russian woman boarded flight AK 070 from Kuala Lumpur, Malaysia to Hong Kong.
At Kuala Lumpur they checked-in four pieces of luggage but when they arrived at Hong Kong International Airport at about 10.20 am they only collected three of these pieces of luggage.
Before they left the airport they were stopped for a random check. The three pieces of luggage were examined but no irregularities were found. They then left Hong Kong for the Mainland via Lok Ma Chau at 12 noon the same day.
At 3.05 pm on that day an employee of Jardine Air Services Limited presented an unclaimed suitcase to Customs & Excise for clearance. Affixed to the suitcase was a luggage tag, SDK 0179757, which showed that the suitcase was checked in by a passenger on flight AK 070 from Kuala Lumpur, Malaysia.
The Customs & Excise Officers noticed that the cover of the suitcase was unusually thick which prompted them to do an X-ray scan of the suitcase. The scan revealed a false compartment and when this was accessed there was found inside it 2,030 grammes of a mixture containing 1,240 grammes of heroin hydrochloride.
Enquiries with Air Asia revealed that the suitcase had been checked-in under the name of the woman accompanying the defendant and related to the air tickets of this woman, the defendant, and the two children. Also within the suitcase were clothes, infant food, diapers and other personal belongings.
On 20 March 2011, the defendant together with her two children and the Russian woman travelling with her returned to Hong Kong. They were intercepted at Lok Ma Chau and subsequently arrested for trafficking in a dangerous drug.
On 21 March 2011 the defendant in a video-recorded interview admitted that she had not claimed the suitcase containing the drugs and that inside the suitcase there were items belonging to her and her children. She further admitted that it was her intention to claim the suitcase on her return to Hong Kong on 20 March 2011.
The defendant now admits and accepts that she knowingly had all the dangerous drugs particularised in the charge for the purpose of unlawful trafficking. The seized drug had an estimated retail value at the time of its seizure of $1,390,000 Hong Kong currency.
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 1,240 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 & Others [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There the Court of Appeal said that for amounts between 1,200 and 4,000 grammes the sentencing range should be 23 to 26 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 in 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. 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.
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 and avoid distinctions being drawn between drug traffickers who are couriers or storekeepers. Whatever the role played by the defendant in the trafficking, the sentence will generally be the same. See
HKSAR v Manalo [2001] 1 HKLRD 557 at 560 G to 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.
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.In respect of this defendant no such exceptional circumstances exist.
Notwithstanding that I have some discretion the Court of Appeal has also said that certain matters 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 will be more onerous than for a Hong Kong resident. See HKSAR v Bugaay [2008] 6 HKC 326.
Nor will the fact that the offence was committed out of financial need arising perhaps from an impoverished and disadvantaged background be a basis for discounting the sentence. See HKSAR v Somphaksorn Lamyai & Anor [2009] 1 HKC 437.
The defendant is 37 years of age with three young children. By her conduct the defendant has now caused them to lose the presence of their mother in their lives for a prolonged period. That is a tragedy that cannot be undone and will no doubt add to the pain of the defendant’s imprisonment.
The defendant says that she became involved in this drug trafficking at the instigation of her partner, and I accept that that is true, but that does not justify her conduct in becoming involved in international drug trafficking.
In the present case the quantity of drugs is within the 23 to 26 years’ imprisonment band as it covers trafficking in 1,200 to 4,000 grammes. As the quantity is 1,240 grammes only I adopt 23 years as my starting point as suggested by counsel for the defendant. Because there is present the aggravating factor of an international element I enhance that sentence by 2 years.
The starting point for sentence then becomes 25 years. I discount that sentence by one-third to allow for the plea of guilty and the resulting sentence is 16 years and 8 months.
I have considered all that Mr Chau has said but even he accepts that there is nothing he can advance that would entitle me to further discount this sentence. I sentence the defendant to 16 years 8 months’ imprisonment.
Miss Vorobeva, would you stand up. For the reasons which I have just given I sentence you to 16 years 8 months’ imprisonment. I realise that this will be a severe punishment for you and particularly painful as it will involve you being deprived of the opportunity to become heavily involved in the rearing of your children.
I hope you will understand that for the reasons I have given Hong Kong adopts a very strict policy in relation to drug trafficking. However, as your counsel will no doubt have explained to you the Commissioner for Correctional Services does have a discretion which will enable him to provide you with remission of sentence should you be of good behaviour in the course of serving your prison term. You may sit down.