CRIMINAL CASE NO. 54 OF 2012
COURT: You have been convicted after trial of two counts. The first, which was Count 2 on the indictment, related to the conspiracy involving yourself, PW1, who gave evidence against you, and another person to traffic in dangerous drugs. The terms of that conspiracy were given effect during March and April 2003. The second, which was Count 3 on the indictment, was trafficking in 346.73 grammes of a mixture containing 237.84 grammes of heroin hydrochloride together with PW1 on 25 May 2003.
A difficulty which commonly faces courts when sentencing on counts of conspiracy to traffic in dangerous drugs is that there is no evidence as to the quantity of drugs likely to be involved in the execution of the conspiracy.
The position here is somewhat different, although not without its own difficulties. PW1 gave careful and detailed evidence, which I accept, concerning the quantities of mixture containing heroin hydrochloride which he carried on your instructions and for which you rewarded him on the occasions on which he did so.
The conspiracy was implemented in two phases. In the first phase, after you had supplied PW1 in the mainland with blocks of heroin, he and the co-conspirator broke them down and repackaged them into smaller, approximately 28 gramme, packets, which they then transported into Hong Kong, and in accordance with your instructions, placed in various previously identified locations in Mong Kok.
It was PW1’s evidence that the blocks were those commonly known as a “half jack”, each of which had a weight of approximately 350 grammes. I note from Count 3 that the weight of the one block he was carrying was indeed almost precisely 350 grammes of mixture.
His evidence was that this system was employed approximately every other day for a month. It is obviously impossible for me to be precise, but given that evidence, and assuming a month to be four weeks or 28 days, that means that for approximately 14 days, you trafficked in some 350 grammes, being in aggregate 4.9 kilogrammes of mixture.
The second phase, so PW1 testified, was that it was then agreed, at your suggestion, that he should bring into Hong Kong from the mainland entire half jacks of heroin and then hand them over to you, whilst the co-conspirator would continue to be supplied by you in the mainland with half jacks which he would continue to deal with as before. It was his evidence that he agreed to this proposition and related it to the co-conspirator, who also agreed. He gave no evidence as to whether in fact the co-conspirator continued in his role.
In the circumstances of the evidence as a whole, that appears overwhelmingly likely, but it is not possible for me to estimate, even in general terms, the amount of drugs dealt with in this manner.
It is possible, on the other hand, to approximate the further quantity of mixture brought into Hong Kong by PW1. It was his testimony that over a three-week period, and four or so times per week, he carried half jacks into Hong Kong on his person. He said that on some occasions he carried two blocks, and sometimes three.
Taking those figures to be correct, and taking it as two blocks per occasion, he would have imported and then handed over to you 8.4 kilogrammes. That being so, the evidence is that at least some 13 kilogrammes of heroin mixture was in fact imported into Hong Kong following upon the conspiracy.
I recognise that the practice now is for a sentence in respect of offences under the Dangerous Drugs Ordinance for the starting point to be fixed by reference to the narcotic content and not the mixture.
It has been suggested on your behalf that this creates a problem for me to determine the appropriate starting point as there is no real basis upon which I am able to determine the volume of narcotic involved. Of course, it would have been arithmetically easier had the amount of narcotic been known, but the reality of the present situation is that whatever the precise figure may be, the scale of your trafficking can justifiably be described as massive.
When dealing with huge quantities, small variations in quantity of narcotic have a very limited effect on the length of sentence. This is illustrated in the context of this case. If one were to arbitrarily, for example, determine a narcotic content of half of the mixture and to apply the basic guidelines now referred to in Abdallah Anwar Abbas before allowing for aggravating features, the resulting figure would still be such as to bring the sentence within the range of 26 to 30 years, which covers the range from 4 to 15 kilogrammes.
It was clear from the evidence that you had a regular supply of half jacks at your disposal. I have no doubt that this operation would have continued until somebody, probably PW1, was apprehended. It is almost an understatement to describe this offence as grave.
This conspiracy was designed to introduce vast quantities of heroin into Hong Kong, with all the misery that that would bring to our community. The fact that you have only been convicted some 9 years after the commission of the offence was due to the fact that you were detained in the mainland until last year as you had been sentenced in 2004 to a period of 12 years’ imprisonment in respect of an offence involving the smuggling of drugs.
I am alive to the fact that you fall to be sentenced for the offences in accordance with the sentencing regime that prevailed at the time the offences were committed. I am alive too to the provisions of section 39 of the Dangerous Drugs Ordinance which provide that a person convicted of conspiracy to commit an offence under the ordinance is liable to the same penalty as substantive offence.
Although the decision of the Court of Appeal in Abbas dates from 2009, much of what it contains is of assistance, firstly because it refers to a number of sentencing decisions around the time of the commission of these offences, and secondly, because it identifies certain features, or restates certain features which have been accepted by the courts for a substantial period as enhancing sentence.
The first aggravating feature which obviously is present in this matter is the international element in the sense of the drugs being imported from the mainland. Indeed, from the evidence, that was clearly the whole point of the conspiracy. The second is that you have five previous convictions for possession of dangerous drugs for the purpose of trafficking as well as, in 1994, a conviction for trafficking in dangerous drugs, for which you were imprisoned by the High Court for 13 years.
The Court of Appeal, in the earlier decision of Lau Tak Ming, recognised that an offender’s previous history of narcotic offences is a matter to be taken into account.
You were released from prison in respect of that offence in January 2001. You committed these offences a little over one year later. That period of imprisonment, a substantial one in particular, as well as the other punishments imposed on you over the years, appear to have had little deterrent effect on you.
The third feature is the role you played in this conspiracy. You, as a drug abuser and trafficker even before these offences, would have been fully aware of the devastating effect these drugs would have had on those to whom they were to be distributed in Hong Kong, yet you plainly played a leading role in this entire undertaking.
PW1’s evidence showed that you had actively recruited his involvement as a courier, although I accept he was no naïve innocent duped into participation. He knew full well what he was doing, and became involved for financial reasons. Not only did you recruit him, but his evidence showed that you sourced the drugs in the mainland and handed them over to him there. Thereafter, he had brought the drugs into Hong Kong on each occasion. He took instructions from you as to how they should be dealt with, which, in the case of the unbroken half jacks, involved handing them over to you personally. You were also his paymaster, remunerating him for his involvement.
It is self-apparent that you were a senior player responsible for orchestrating, planning and supervising the operation.
In all the circumstances of this case, I judge that the appropriate sentence on Count 2 on the indictment is one of 30 years’ imprisonment.
As for the appropriate starting point in respect of the offence of trafficking in Count 3, the quantity of narcotic falls into the fourth band of sentencing, that between 12 to 15 years’ imprisonment, for a quantity between 200 and 400 grammes, as set out in the decision in Lau Tak Ming.
Disregarding the aggravating factors, a sentence of 12 years 6 months’ imprisonment would be appropriate. Allowing for those features, the starting point which I would adopt after trial is 14 years.
Realistically, it has not been suggested to me that there is anything in your personal circumstance which mitigates those sentences. Whilst the offence in respect of Count 3 was committed subsequent to the period charged for the conspiracy and notionally could attract a wholly or partially consecutive sentence, in my judgment, in this matter it is appropriate to order that the sentences be served concurrently with one another.
I take that approach for two reasons. Firstly, the magnitude of the sentence in respect of Count 2 requires such an order, applying the principle of totality, and secondly, there was nothing in the evidence at trial to indicate that the offence referred to in Count 3 was otherwise than in pursuance of the conspiracy previously concluded.
In the circumstances, on Count 2 you will undergo imprisonment for 30 years, and on Count 3 you will undergo imprisonment for 14 years, those sentences to be served concurrently with one another.
By virtue of the jury’s verdict on Count 1, you are discharged.