CRIMINAL CASE NO. 140 OF 2012
COURT: The defendant has pleaded guilty to trafficking in a dangerous drug, namely 97.58 grammes of a mixture containing 62.93 grammes of heroin hydrochloride.
The defendant crossed into Hong Kong at the Lok Ma Chau border point on 4 January 2012. He was intercepted by Customs officers, who handed him over to the police for investigation. When traces of lubricant jelly were found on the defendant’s underwear, he was suspected to be transporting drugs within his body.
He was taken to hospital, where x-ray examination revealed the presence of objects within his body. He later excreted five packets whose contents were subsequently confirmed to be the dangerous drugs the subject of the charge.
The defendant admitted he was a cross-border drug courier and would have been paid $1,000 for his services.
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 62.93 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 [1992] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There, the Court of Appeal said that for amounts between 50 to 200 grammes the sentencing range should be 8 to 12 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 is involved in the commission of the offence. When drugs are transported across borders, 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 is above 1 kilogramme, the enhancement should not be less than 2 years’ imprisonment. 2 years appears to have now become the norm for these larger amounts of heroin. See HKSAR v Lau Chun Sing [2011] 2 HKLRD 551. But for smaller amounts such as the quantity in which you trafficked, the amount of the enhancement is within my discretion.
The existence of these 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 based upon the nature of their trafficking, whether they be couriers, storekeepers, or some other role. Whatever the role played by the trafficker, the sentence would 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 the present case, the quantity of drugs is within the 8 to 12 years’ imprisonment band, and that covers trafficking in amounts between 50 to 200 grammes. Within that band I have a discretion as to where I should adopt my starting point.
The defendant is 41 years of age and has a criminal record. He committed this offence not long after being released from prison for other offences. He said that on his release from prison he embarked upon a career as a taxi driver, but that came to an end when, after having been involved in an accident, he found it difficult to obtain further access to taxis. He expresses remorse for his conduct, which he says was due to him surrendering to the influence of someone in China.
He is at the stage where the courts are reluctant to extend further leniency. However, I have been persuaded by the submissions of his counsel to extend to him one last chance. I therefore accede to the suggestion of his counsel, and adopt the lowest part of this band of 8 to 12 years as my starting point. But from this starting point of 8 years, I am required to add a further punishment because of the presence of the aggravating factor of an international element. Again, I am asked to extend to the defendant as much leniency as I can by adopting the minimum amount for this aggravating factor.
As I have already said, for the amount in which this defendant trafficked, the additional punishment is within my discretion. As the amount involved in this case is small, I intend to only enhance his sentence by a further 3 months.
The starting point for sentence then becomes 8 years and 3 months. I discount that sentence by one-third to allow for the plea of guilty.
The resulting sentence is 5 years and 6 months. There is nothing in the mitigation of his counsel that would justify a further discount of the sentence, and the defendant is sentenced to 5 years 6 months’ imprisonment.
Mr Yau, as will have been explained to you, I have extended to you as much leniency as the court can in the circumstances of your case.
It is up to you as to what you do with your life upon release from prison. You should make use of your time in prison to completely rid yourself of any addiction to drugs. You should also take advantage of whatever opportunities might be provided in prison for you to acquire skills which will enable you to obtain gainful employment upon your discharge. I understand you wish to return to a career of taxi driving, but you should plan an alternative option in case that is not available to you.
It is very easy for persons in your position, upon discharge from prison, to return to associating with people involved in the drug trade, and if they have trouble obtaining employment to support themselves and their family, to return to drug trafficking for the easy money that it provides. That is something you must strive to avoid.
I hope that with the love and support of those who care for you, you will have success in this. If you fail, you will have thrown away possibly your last chance for an enjoyable life.
Should you come before the courts again for drug offences, you will not be given the leniency that I have extended to you today. Do you understand that?
ACCUSED: Yes, I understand.