The particulars of offence are that the defendant on the 9th day of March 2014, at the Lo Wu Control Point, Lo Wu in Hong Kong, unlawfully trafficked in a dangerous drug, namely 429.56 grammes of a crystalline solid containing 414.13 grammes of methamphetamine hydrochloride.
He is committed to this court for sentencing.
Facts admitted
On 9 March 2014, the defendant was stopped and searched by Customs officers at the Arrival Hall of Lo Wu Control Point on his entry to Hong Kong from China. Two packets and one packet of dangerous drugs were found taped respectively to his right lower leg and left lower leg.
The dangerous drugs were later confirmed to be 429.56 grammes of a crystalline solid containing 414.13 grammes of methamphetamine hydrochloride.
On being arrested and cautioned the defendant said, “I convey them for someone.” He confirmed that the substance was “ice” and he was to receive a reward of $3,000.
In a video recorded interview subsequently conducted, the defendant admitted inter alia that he left Hong Kong at 4 am and was asked by Ah Ming to deliver the “ice”. The three packets of “ice” were given to him in a McDonalds Restaurant in Xicun and he wrapped them into his legs. He was to deliver them to Nam Cheong Street where someone would collect the dangerous drugs and the reward was HK$3,000.
The “ice” in question had an estimated retail value of $225,089 at the time of seizure.
Criminal record
The defendant has 18 previous convictions, including six of possession of a dangerous drug and one of trafficking in a dangerous drug. He was last convicted of two counts of burglary on 26 August 2004 for which he was sentenced to a total of 34 months’ imprisonment.
Mitigation
The defendant is aged 43; received Form 2 education; married in 2012 and divorced in 2013. There are no children in the marriage.
Counsel for the defendant points out that the defendant was a cook, earning about $12,000 a month, but shortly before the offence, he became unemployed. He committed the present offence because he wanted to make some quick money.
The defence counsel informs the court that according to the sentencing guidelines of Ching Kwok Hung the present case falls within the 14 to 18 years’ imprisonment band and is at the lower end of the band. Regarding the criminal records of the defendant, defence counsel says that the previous conviction of trafficking in a dangerous drug took place in 1999, which is 15 years ago. He asks the court to adopt the lowest possible starting point and to enhance it for the international element involved for not more than a year.
The defence counsel stresses that the defendant is deeply remorseful and was fully cooperative with the law enforcement officers after arrest. He had provided information to the police, although it eventually bore no fruits. The defence counsel asks leniency for the defendant.
Sentence
As correctly pointed out by the defence counsel, in the case of R v Ching Kwok Hung [1991] 2 HKLR 125, the Court of Appeal laid down sentencing guidelines for the offence of trafficking in “ice”. If the quantity of “ice” is between 300 to 600 grammes, the starting point ranged from 14 to 18 years’ imprisonment. The amount of “ice” involved in the present case is 414.13 grammes and the normal starting point should be approximately 15 years 6 months’ imprisonment.
The defendant committed the offence because of economic reasons. This, of course, cannot be an excuse to offend the law and is certainly not a valid mitigating factor.
The court notices that the defendant has a number of dangerous drug related previous convictions, but as the last one, as pointed out by the defence counsel, took place in 1999, the court will not enhance the starting point because of his criminal record.
The court adopts a basic starting point of 15 years 6 months’ imprisonment for the present case. There is, however, an aggravating factor in the case which necessitates the enhancement of the starting point. The defendant committed the offence across the Hong Kong/China border and this is the factor which the court should take into account in enhancing the starting point of the case.
Having considered authorities such as HKSAR v Abdallah [2009] 2 HKLRD 437 and the case of HKSAR v Edy CACC 50/2014, referred to by the defence counsel, the court enhances the starting point to one of 16 years 3 months’ imprisonment.
Giving credit to the defendant for his plea of guilty, the court sentences him to 10 years 10 months’ imprisonment.