CRIMINAL CASE NO. 377 OF 2009
COURT: Ma Kam-shui, you pleaded guilty in the Magistracy to trafficking in 66 grammes of a crystalline solid of which 59.24 grammes was methamphetamine hydrochloride, or ice, and you have been committed for sentence to the Court of First Instance.
The Admitted Facts show that you were stopped at the border, having entered Hong Kong at Lok Ma Chau and the dangerous drugs were found in your underwear. You said in interview that you were recruited by someone in the Mainland to bring the dangerous drugs into Hong Kong for a payment of $1,000. You needed the money and therefore you agreed. You said you were told that after you brought the drugs into Hong Kong you would be contacted and the drugs would be collected from you.
You are 44 years of age and have a number of previous convictions, though not for dangerous drugs offences. You are presently serving a term of 12 months' imprisonment, imposed in June 2009, for a money-laundering offence.
As is well known, in order to achieve a measure of uniformity in sentencing for drugs offences the Court of Appeal has laid down sentencing guidelines over the years for different types of dangerous drugs. In the case of ice, the guidelines are to be found in a case called Attorney-General v Ching Kwok Hung [1991]. This case falls into the bracket of 10 to 70 grammes of narcotic for which 7 to 10 years' imprisonment is prescribed for conviction after trial before, that is, the appropriate discount for mitigation.
It is well recognised that importing dangerous drugs into Hong Kong is an aggravation of the offence of trafficking. The Court of Appeal so held as long ago as 1995 R v Lee Chiu Pang and the principle has been recently re-affirmed by the Court of Appeal in HKSAR v Abdallah Anwar Abbas, where the court referred to importation of very large quantities of heroin and said that for quantities over 1 kilogram, the sentence should be enhanced by at least 2 years.
It is suggested on your behalf that the fact that this was an importation from Shenzhen, where the social circumstances are said to be similar to Hong Kong, should lead this court to give little weight to this factor and to regard the cross‑border trafficking, or at least the border in this context, as something of a formality. I do not accept that to be the correct approach. The point about importation of dangerous drugs being an aggravation is that the drugs are being brought into Hong Kong, into this community, for distribution. Those who are engaged in bringing the drugs into this community, where they do so much harm, are committing the offence of trafficking in a more serious way than those engaged in trafficking similar quantities within Hong Kong itself.
The term "international trafficking" in this context refers as much to trafficking across the border from the Mainland as it does to trafficking between different sovereign states. Here, of course, the quantity imported was much smaller than the amount referred to in Abdallah Anwar Abbas but the fact of importation still amounts to an aggravation.
I can say that, but for the importation, I would take a starting point of 9½ years' imprisonment for nearly 60 grammes of narcotic because it is towards the top end of the appropriate bracket. Given the importation, I consider 10 years is appropriate. Of course, given your plea of guilty, you are entitled to a reduction of one-third from that starting point.
In an extensive mitigation, Miss Barbara Wong has meticulously detailed your background and has emphasised, in particular, the deprived circumstances of your upbringing, the qualities which you were able to demonstrate despite the depravation, and the circumstances of your previous convictions. I am told that you were in debt at the material time and were in desperate circumstances, partly as a result of the pregnancy of your wife, which made you susceptible to the temptation of easy money for importing these dangerous drugs.
I have also been told about an attempted suicide by you in April 2008, which, it is said, has had some lasting effects, physically and mentally, though it is not suggested that there is any medical issue which should have an impact on your sentence for this offence which was committed over a year after that attempted suicide.
I am bound to say that although your difficult circumstances are very persuasively and extremely thoroughly explained on your behalf, and I bear them in mind, they cannot in the circumstances amount to mitigation so as to allow for a further reduction of the sentence beyond the one-third to which I have already referred and which is sometimes called the high water mark of the discount after a plea of guilty.
As I have already remarked, you are now serving a term of 12 months' imprisonment imposed in Kowloon City Magistracy on 29 June 2009 for a money-laundering offence. That was an entirely separate matter to the present offence. It arose from your involvement in the cashing of a cheque for $40,000 in April 2008 and you were arrested in respect of that offence at the time of your arrest in respect of the present offence. It seems you were already on a watch-list in respect of that offence.
I have regard, as I am asked to, to the totality of sentence but I am satisfied that, in principle, the term for the present offence must be wholly consecutive to the term you are presently serving and that there is no injustice in applying the principles of totality and that the totality of sentence thus imposed upon you is correct.
Accordingly, I reduce the 10 year starting point for the present offence to 6 years 8 months, and I order that term to run consecutively to the term you are now serving.