CRIMINAL CASE NO. 63 OF 2010
COURT: These defendants pleaded guilty at committal on 26 February to one charge each of traffickingin dangerous drugs.
In the case of D1, it was 49.74 grammes of a crystalline solid containing 48.55 grammes of methamphetamine hydrochloride, commonly known as “Ice”. The 2nd charge, to which the 2nd defendant pleaded, involved 149.57 grammes of a crystalline solid containing 147.31 grammes of methamphetamine hydrochloride.
Today, each of the defendants confirmed the pleas that they entered at committal and confirmed the facts that they had admitted at committal.
The 1st and 2nd defendants are cohabitees. They were intercepted by police officers in an anti-narcotics operation at the Lok Ma Chau Border Crossing Point. During the subsequent search, the 1st defendant removed from his anus a quantity of dangerous drugs he had concealed there, and told police he had bought the “cold stuff” from China for his own consumption.
The 2nd defendant was questioned, but did not say anything until about two hours later, when she told police that she had concealed dangerous drugs in her vagina. She removed those drugs herself.
Subsequent x-rays confirmed that neither defendant had any more drugs concealed in their bodies.
The 1st defendant said he had paid HK$16,000 for the drugs from a man in Shenzhen, they were for his own consumption, and he had concealed them in an attempt to avoid detection by sniffer dogs. Subsequently, he admitted that he had had them for a purpose other than for his own consumption.
The 2nd defendant said she obtained the drugs from a man in mainland China, after she told him she did not have enough money. She was given the drugs in China and instructed to deliver them to a park in Mong Kok. She was to be paid HK$500 for each piece delivered. She told police that the 1st defendant was not present when she collected the drugs, and that he did not know that she had them. Given the nature of their relationship and the long-term habit of the 1st defendant, I am slightly sceptical as to whether or not he knew about this.
Subsequent analysis by the Government Chemist confirmed the quantity and nature of the drugs found from the defendants as set out in the Charges 1 and 2. The estimated street value for both lots of drugs was HK$158,451.
Immigration records show that defendants 1 and 2 had left Hong Kong for mainland China near the Lok Ma Chau Point at 0930 on 11 August and returned on the same day, at 1747 for D1 and 1746 for D2, through the same checkpoint.
The 2nd defendant has a clear record. The 1st defendant has a lengthy record, which has some significance in respect of his sentence. He has a long record, starting in 1979. Between 1979 and 1994 he was convicted of a number of minor offences, including convictions for possession of dangerous drugs, and for those offences he was either fined or sent to Drug Addiction Treatment Centre. In 1994 he was sentenced to 7 years on a trafficking charge that was dealt with in the High Court. In 2004 he was convicted of two separate charges of trafficking and sent to prison for 3 years and 4 months in one case, and 5 years and 4 months in the second case. Again the venue was the High Court. In 2008 he was sentenced for possession of dangerous drugs, and the sentence of 8 months was suspended for 3 years and he was fined $2,000. The present offence was committed within the currency of the suspended sentence.
It appears that this defendant comes into the category of a persistent reoffender as discussed in HKSAR v Chan Pui Chi 1999 2 HKLRD 830. For that reason, the court can consider a higher starting point for sentence to take into account the aggravating features of persistence and the failure of previous sentences to deter, on the one hand, and the court’s duty to protect the public on the other.
The defendant is now aged 59. I am advised that he is not in good health. He has a prostate problem which affects his urination. He also has gout from the build-up of uric acid, and he has varicose veins in his legs which are said to result from his dangerous drug habit. He was described by his counsel as a lifelong addict, and he needed to commit this offence to find money to fund his own drug habit.
The 2nd defendant is aged 43. She is divorced and has a son aged 12 years. She was divorced in 2003, when her son was about 4 or 5 years old. She obtained custody of her son and had custody of him with access granted to the husband. She worked, once her son went to secondary school, at part-time jobs, and at the time of her arrest was working as a part‑time clerk in a warehouse, earning roughly $5,000 a month. She was awarded maintenance to be paid by the husband, but he did not pay it regularly. It appears that the 2nd defendant met the 1st defendant and formed a relationship with him, which involved the 2nd defendant becoming involved in taking drugs herself.
I have had put before me letters from the defendant herself, her elder sister, and a classmate from her secondary school. All of those point out the good characteristics of the defendant and her concern for her son. Her counsel advised that one of the reasons she wished to earn money in this manner was to send her son to New Zealand for studying.
It appears that she came under the adverse influence of the 1st defendant. It is understandable that she would find somebody who cared for her in this manner attractive. The great pity is that she did not seek help from her siblings or her friends.
In both instances, the greatest mitigation for these offences is the pleas of guilty that have been entered by the defendants.
Under the sentencing guidelines, the quantity of drug in respect of the 1st defendant comes into the range of 10 to 70 grammes, which has a 7 to 10-year imprisonment range.
I take a starting point of 9 years in this case, taking into account both the quantity and also the fact that this man is a persistent reoffender. I add 6 months in respect of the importation aspect, which makes a sentence of 6 years and 4 months, and I add the full 8 months which is outstanding under the suspended sentence, which makes 7 years in total.
In respect of the quantity of narcotic carried by the 2nd defendant, that comes into the range of 700 to 300 grammes, which is a 10 to 14-year range of imprisonment. Taking into account the nature of the case and her degree of involvement, I take a 10-year starting point in this case. I give her a full one-third discount, and she is sentenced to 6 years and 8 months’ imprisonment. I do not add anything for the importation in this particular case.