CRIMINAL CASE NO. 78 OF 2010
COURT: Velayitham Vythilingam, you pleaded guilty in the Magistrates’ Court to trafficking in dangerous drugs. You have been committed here to this court for sentence, and following the proceedings which you have heard this morning, including discussions as to various aspects of your case and the nature of the drugs involved, I can proceed to sentence you for the crime that you have committed.
It is a grave crime - I know you are in no doubt about that - although the facts are relatively straightforward. You came to Hong Kong from Malaysia. You entered through the airport carrying a bag which contained two children’s books, in each of which there was concealed a quantity of dangerous drugs. Those are the drugs referred to in the charge.
And as you have heard in the detailed discussions that have taken place this morning, the bulk of the drugs was heroin, with a smaller quantity, a smaller proportion of the drugs, being monoacetylmorphine hydrochloride, which is the salt of ester of morphine, which is a form of heroin. The value of those drugs at the time, if they had been retailed as heroin, would have been in the region of $770,000, though that is of course only a broad figure of valuation.
In any event, you were stopped and searched by Customs officers at the airport, and the drugs were found, and you said that you had been recruited to bring the drugs to Hong Kong for a payment of some money, and that you knew there was something in the books. You knew it was some form of dangerous drugs, I am told, but you did not know exactly what form. You had been taken to the airport in Malaysia by a man and a woman and you were given instructions to deliver the books to a Chinese woman at Chung King Mansions here in Hong Kong, and indeed, having been stopped and having made certain admissions about the case, you took Customs officers to Chung King Mansions to see if the intended recipient arrived to collect the books, but in fact nobody came.
Now, you know that sentencing here in Hong Kong for trafficking in dangerous drugs is based on the narcotic quantity of the dangerous drugs involved; in this case, 601.68 grammes of heroin and that additional 94 grammes of monoacetylmorphine hydrochloride. The reason for that approach is that sentencing courts apply guidelines laid down by the Court of Appeal for different types of drugs so that all drug traffickers are dealt with on the same basis.
I have heard mitigation on your behalf from Mr Mitchell this morning which describes your background and your circumstances. I am told you were in debt and that you became, as many drug traffickers or many drug couriers do become involved, you became involved by reason of the debt and the temptation that was offered to earn some easy money.
But you understand, of course, that although that may be an explanation for your involvement, it cannot amount to any effective mitigation so as to reduce the sentence that the court must impose upon you.
You are, of course, I might add, a man without previous convictions here in Hong Kong, and indeed I am told that you have no previous convictions in your home country. What does amount to mitigation, as Mr Mitchell has said to me and as I dare say he has said to you, is your plea of guilty, and it is that plea of guilty which amounts to substantial mitigation and which will reduce the sentence to be imposed upon you by one-third from what would otherwise have been imposed upon you if you had been convicted by a jury after trial. So the discount for that plea of guilty and for that mitigation, which takes into account all other aspects of your mitigation as well, is substantial.
As recently as February 2009 the Court of Appeal here in Hong Kong in a case called Abdallah Anwar Abbas laid down more up to date guidelines to deal with quantities of dangerous drugs being trafficked; quantities, that is, of this scale, and in your case, dealing with the 601‑odd grammes of heroin, you pass the threshold of the bracket of cases involving 600 to 1,200 grammes of drugs, for which a sentence of 20 to 23 years’ imprisonment after trial is appropriate.
You have heard some extensive discussion today about the additional quantity of dangerous drugs described by the Chemist as monoacetylmorphine hydrochloride, a salt of ester of morphine, and how that should be valued for the purpose of determining the appropriate starting point for sentence.
It is submitted that that particular form of the drug is to be regarded as, in effect, a degraded form of heroin, and therefore it should not have the same value as heroin hydrochloride. I am going to say, though it will mean little to you, that over the years here in Hong Kong, heroin has been described in many different ways by courts: No. 3 heroin, No. 4 heroin, salts of esters of morphine, heroin hydrochloride; and heroin hydrochloride is the usual way in which it is described and is the usual way in which it appears here in Hong Kong in terms of the drug being trafficked and consumed.
I have determined that I do not need to decide the question of how to value that 94 grammes of monoacetylmorphine hydrochloride for the purpose of sentencing in your case, because the 601 grammes of heroin hydrochloride, which is the bulk therefore of the drugs which you were trafficking, takes you over that threshold of 600 grammes for which that starting point for sentence of 20 to 23 years’ imprisonment is appropriate. Were that 94 grammes to have been heroin hydrochloride, it might have added a few more months to the starting point for sentence, but in the context of your case, that would not have made a substantial difference, so I do not need to consider that matter further, and I shall take the quantity being trafficked as being 601.68 grammes of heroin hydrochloride.
Now, there is more to be said about your case, because, as I know you have been told and as you have heard us refer this morning, the importation of dangerous drugs into Hong Kong incorporates, in effect, an international element into the drug trafficking, and that is regarded as an aggravation of the offence, and the Court of Appeal has directed that where that international element is present there should be an enhancement - that means an increase - of the starting point for sentence which, for amounts above a kilogram, would not be less than 2 years’ imprisonment. Of course, the drugs in your case are less than a kilogram, and that is a matter which I must take into account.
Sentencing is not an entirely mathematical process, as you have also heard me say this morning, and I must judge therefore the extent to which that aggravating feature must be taken into account in your case.
I judge that the sentence in your case, leaving aside the aggravation of importation, and before any discount for your plea of guilty, should be a term of 20 years’ imprisonment. I judge that the aggravation of the importation - that is, the international element - should add a term of 1 year 6 months to that 20 years, so that the starting point for sentence in your case should be 21 years 6 months’ imprisonment.
That is the starting point which must be discounted by one‑third to reflect your mitigation, and that discount will bring the sentence down from 21 years 6 months to 14 years 4 months, and that is the sentence that I impose upon you in respect of this offence.