CRIMINAL CASE NO. 126 OF 2010
COURT: You were convicted by a jury of trafficking in dangerous drugs. The drug in question was methamphetamine hydrochloride. You were caught carrying 1,916 grammes of it at the airport.
The drug was disguised as tea. You were taking it to Japan. You will well know that sentences for drug trafficking in Hong Kong are based on guidelines. There is a guideline for heroin of large amounts that was recently passed in March of 2009.
Since that judgment it is my experience that judges in the High Court have been following the heroin guideline as a guide also to “Ice”. They have done that because no one sensibly advances a proposition that heroin is worse than “Ice” as a dangerous drug. Accordingly, I shall follow the guidelines in Abdallah.
You fall into the category with 1,916 grammes that runs from 1,200 grammes to 4,000 grammes and that attracts a bracket of imprisonment of 23 to 26 years.
It is also a fact that that case spoke of the need to enhance the sentence if there was an international element to the crime and for amounts over a kilogramme, such as yours, the enhancement is said to be one in the region of 2 years. Your case has an obvious international element.
I shall take a starting point at the bottom end of the bracket of 23 years. I shall enhance that by 2 years for the international element and therefore the sentence will be 25 years.
You are an intelligent, university educated young lady and you must have seen a sentence like that coming. I do not wish to detain you much longer, however, by debating some of the submissions that your counsel has made to me. But there is one matter that I must deal with.
It is the fact that methamphetamine hydrochloride can exist in two isomeric states called the D-Isomer or the L-Isomer. I thought it was common ground in the case, but it is certainly established by evidence, that both are dangerous drugs in either form under our Dangerous Drugs Ordinance.
Our Government Chemist does many, many analyses of methamphetamine hydrochloride but it does not as a general procedure distinguish between the D-Isomer and the L-Isomer for our criminal jurisdiction.
For the purpose of deciding whether or not you were guilty it did not matter which one it was because whether it was one or the other or a mixture the crime was committed. So even though your counsel raised the point in the trial it did not require any adjournment for any further analysis of the drugs because it did not matter for the purposes of the verdict whether it was ‘D’ or ‘L’.
However, your counsel has raised the issue when it comes to passing the sentence because he points out that D-Isomer is equivalent to what we know as “Ice” and is the dangerous drug with all the mischief that is well-known to attend it. Whereas methamphetamine hydrochloride in its L-Isomer form is relatively harmless and is an ingredient used in things like talcum powder.
Your counsel has approached the case by saying that because it was never resolved in the trial whether it was ‘L’ or ‘D’ I am obliged to sentence you on the basis that it is the harmless sort, the sort that goes in talcum powder.
He is either unable to see or declines deliberately to see the distinction between what matters on working out whether you are guilty and what the nature of the substance is when it comes to sentence. I hope he has not raised your expectations too high in this regard.
Common sense indicated to me at the end of your trial that people who organise drug trafficking, such as you are involved in, would not be dressing it up as tea and using a courier to send it to Japan if it was something akin to talcum powder.
Because of the gravity of this case I decided it would be right to go back to the Government Chemist and ask him to determine whether it was the ‘D’ or the L-Isomer. That has been done and after a substantial delay necessary to carry it out, I now have a Government Chemist’s Certificate in the correct form telling me, unsurprisingly, that all of the drugs that you were trafficking are the D-Isomer. Notwithstanding that your counsel still insists that I should sentence you as if it were an ingredient of talcum powder.
There is a clear distinction between having evidence that goes to the verdict of the jury and evidence about the nature of the substance, in both its forms criminal, but to see whether it is the potent or the impotent form.
The submission made to me is that somehow legal rules prevent me from doing that in looking to the result. But even if legal rules do not it would be unfair of me to do so.
All I will say is that I reject both submissions. There is nothing unfair in knowing for sure by this further evidence from the Government Chemist that the drugs you were trafficking were the drugs which are the mischievous sort.