CRIMINAL CASE NO. 201 OF 2010
In November last year you were the subject of a police operation whereby a police officer posed as a buyer of ice. On 6 November, following some preliminary arrangements, you supplied that officer with a plastic bag containing around 13 grammes of a mixture of which 12.68 grammes was methamphetamine hydrochloride. He paid you a total of $6,600. That transaction took place in a public toilet in Wanchai and you told the undercover officer that if he wanted more ice he should call again. This transaction is represented by Charge 1, trafficking in dangerous drugs.
A few days later on 10 November that officer contacted you again and ordered another quantity of drugs. It appears you were unable to find any drugs in Hong Kong to fulfil the order and that you had to go to the Mainland to find a supply. After various preliminaries the undercover officer met you again in the public toilet in Wanchai, he had already deposited $10,000 into your bank account and he gave you a further $2,500 in cash whereupon you handed over a bag containing 27.45 grammes of a mixture of which 26.49 grammes was methamphetamine hydrochloride. This transaction is Charge 2, trafficking in dangerous drugs.
As you left the public toilet you were arrested and in your pocket was found a further small quantity, 3.23 grammes of a mixture containing 3.13 grammes of methamphetamine hydrochloride. Your possession of that quantity of drugs is represented by Charge 3, possession of dangerous drugs.
I know you have been told that sentencing for trafficking in dangerous drugs is based upon guidelines laid down by the Court of Appeal which are designed to give a measure of consistency between different cases. There are sentencing guidelines relating to methamphetamine hydrochloride which was set out by the Court of Appeal as long ago as 1991.
Although it is the responsibility of sentencing courts to apply such guidelines, each and every case must be sentenced on its own facts and circumstances. Sentencing is not an arithmetical exercise. If it were, it would do a great injustice both the individual defendants and the public interest.
I have received submissions this morning on how I should approach sentence in your case, including submissions in relation to the 3rd Charge on the issue of latent risk of redistribution of the drugs, the subject of Charge 3. I am not going to explain that further for the reasons which will be apparent from what I said during the course of submissions. I am willing to accept that you were a user of methamphetamine hydrochloride, that given the quantity of dangerous drugs involved, Charge 3 should have no impact on your overall sentence.
Some mention has been made on the question of entrapment in your case. I can tell you straightaway that in my judgment entrapment played no part in your culpability. You were, at the time of the commission of these offences in Charges 1 and 2, a willing and active trafficker in these dangerous drugs. You were not drawn into the commission of the offences which you would not otherwise have committed but for the invitation of the undercover officer. That officer simply made himself available to you to carry out your wicked trade.
However, I do note that you could have been arrested after the first incident of trafficking on 6 November which would have brought this conduct to an end. The police chose not to do that no doubt for a variety of reasons, not the least of which, must have been that you had offered to supply more drugs if the officer so requested. You were not entrapped into committing the second trafficking, given that you had invited him, as your customer, to contact you again if he wanted a further supply. So entrapment is not an issue here.
I have also been invited to look at each charge individually fixing the sentence for each charge and then to look at the totality of sentence. As to the general approach to sentencing for trafficking the circumstances are slightly unusual. Not only must I have regard to the sentencing guidelines but also I must bear in mind your mitigation, primarily your plea of guilty, and I must have regard to a particular feature of your case which is that on two previous occasions you have been convicted of trafficking in dangerous drugs.
I have decided, in the circumstances, and bearing in mind that an individual sentence must be imposed for each offence, that it is best to determine the individual starting points for each of the offences in Charges 1 and 2 and then to discount those terms to reflect the mitigation that is available to you. I will return to the issue of the aggravating factors and the totality of sentence later.
I note that if I were simply to consider the quantities of dangerous drugs which were trafficked together, they would amount to a little under 40 grammes in weight. On the basis of the appropriate sentencing guidelines that would justify a starting point for sentence of around 8½ years’ imprisonment. I keep in mind that though the transactions reflected in Charges 1 and 2 were separate and distinct, they could properly be regarded as an overall course of dealing, for the purpose of determining the starting point for sentence, that is, before any aggravation or mitigation, when having regard to the sentencing guidelines for methamphetamine hydrochloride.
It is appropriate, in my judgment, to look at the total amount of dangerous drugs involved in that course of dealing so that the overall sentence imposed upon you is consistent with those guidelines. I have, as I say, decided that the simplest and fairest way to sentence you is to determine the appropriate terms of imprisonment for the individual offences of trafficking and then to apply the discount that is appropriate to reflect the mitigation and then return to the issue of aggravation and totality of sentence.
In my judgment, the appropriate sentence for Charge 1 involving 12.68 grammes of methamphetamine hydrochloride should be 7 years’ imprisonment before any discount is allowed for mitigation. The appropriate sentence for Charge 2 involving 26.49 grammes would be 8 years’ imprisonment, also before any discount is allowed for mitigation.
Of course those sentences would have to be substantially overlapped so as to achieve a starting point for sentence consistent with the 8½ years to which I have referred. In principle, given that these were wholly separate transactions on different days, wholly consecutive sentences would be justified but the resulting sentence would be too long overall, even taking into account the aggravation of your similar previous convictions.
Now, in determining the proper totality the court is entitled to take account of all the circumstances of the case. Firstly, the mitigation, this comes mainly from your plea of guilty. I have been told other things about you. You are in your early 40s. You had a brief spell as a police officer. You have, yourself, fallen prey to the misery of drug addiction. You have worked as a driver. Your mother is in poor health. Your brother is serving an extremely lengthy term of imprisonment. But the principal mitigation, as I am sure you are aware, comes from your pleas of guilty to the charges. It is those pleas which allow for substantial reductions in the sentences which would otherwise be appropriate in each case.
The starting point is to be reduced by one-third to reflect that element of the mitigation. The other aspects of your mitigation are included in that discount. As a result the sentence of 7 years which would have been appropriate for Charge 1 is to be reduced to 4 years and 8 months’ imprisonment. And the sentence of 8 years’ imprisonment which would have been appropriate for Charge 2 is to be reduced to 5 years and 4 months’ imprisonment.
Now, in your case, mitigation is not the only factor that I have to consider. As I have said, you have a record involving a number of previous convictions starting from 1993 but significantly in September 1997, you were sentenced to 26 months’ imprisonment for trafficking in dangerous drugs. In April 2002 you were sentenced again for trafficking in dangerous drugs, this time receiving a sentence of 3 years’ imprisonment.
Your counsel tells me that those cases involved heroin and both were dealt with in the District Court despite what appears on the record. Nevertheless, the fact that your appearance before the court now is your third appearance for trafficking in dangerous drugs means that those previous convictions amount to a very substantial aggravation of your offences.
Let me make this clear. No man is to be sentenced again for offences for which he has been convicted in the past and for which he has served the sentence. But if a man continues to offend in the same way after he has been sentenced for a particular type of crime, his subsequent offending is greatly aggravated. That is, it is much more serious.
This is no more than commonsense; but it is a principle that is very well established in these courts; and it is a principle which applies to you, given your previous convictions for trafficking in dangerous drugs. Your persistence in offending in this manner, that is, by trafficking in dangerous drugs, is shown by your record and also by the fact that there are now two cases before the court.
That aggravation should be reflected in your sentence, it could be done by simply increasing the individual terms on Charges 1 and 2, but in the end, since the court must have the totality of sentence clearly in mind, it seems to me to be more appropriate to reflect the aggravation in the totality of sentence and therefore to adjust the overlap of the sentences to reflect your persistence in trafficking in dangerous drugs. By this means it is the court’s intention to sentence you for your overall criminality, achieving what is fair to you by way of punishment and deterrence and fair to the public given your persistent disregard of the law.
I do need to be specific as to the degree to which this aggravation arising from your previous convictions applies to the sentence which must be imposed upon you now. The total quantity of ice in Charges 1 to 3 is 42.3 grammes. If the quantity in Charge 3 is excluded, the quantity which was the subject of trafficking by you is 39.17 grammes. That puts you into the sentencing bracket of 10 to 70 grammes for which sentences of 7 to 10 years’ imprisonment are prescribed in the Court of Appeal’s guidelines for an offender whose case does not involve any aggravation and before any discount for mitigation. In fact, it puts you approximately in the middle of the bracket, so that the appropriate starting point would, as I have already said, be about 8½ years’ imprisonment.
I have considered how to reflect that aggravation in the sentences that I impose. I have concluded that it would be unnecessarily complicated to enhance each term for Charges 1 and 2 and then discount them for the mitigation. Given that I have to consider totality of sentence in any event, it is better simply to adjust that totality to reflect the aggravation.
Now, I appreciate that what you want to know is the sentence which the court is actually going to impose on you, rather than the somewhat complicated technicalities of how that sentence is determined, so let me tell you here and now that I am going to impose a sentence of 6½ years’ imprisonment on you. Now, you can sit down.
Ordinarily, that 8½ years’ starting point to which I have referred would be discounted to 5 years and 8 months’ imprisonment to reflect the mitigation. Given the aggravation of your previous convictions and the persistence of your offending in this grave manner, I consider that an overall sentence of 6½ years’ imprisonment is appropriate to reflect the offences in Charges 1 and 2 and the mitigation available to you in respect of those offences and the aggravation to which I have referred.
Accordingly the individual sentences that I impose upon you are as follows. Charge 1, 4 years and 8 months’ imprisonment. Charge 2, 5 years and 4 months’ imprisonment of which 1 year and 10 months is to be served consecutively to the other term and the balance concurrently. Charge 3, 12 months’ imprisonment concurrent to the other terms. So the total sentence that I impose is 6½ years’ imprisonment.