CRIMINAL CASE NO. 464 OF 2011
COURT: The defendant has pleaded guilty to trafficking in a dangerous drug, namely 11.14 grammes of crystalline solid containing 10.90 grammes of methamphetamine hydrochloride.
At around 1850 hours on 4 July 2011, police officers on duty outside Flat F2, 16th Floor, Kingland Apartments, No. 737‑741C Nathan Road, Mong Kok, observed the defendant exiting from this flat in a furtive manner. When the police started to approach the defendant to make inquiry of her, she immediately tried to return to her flat. One of the officers revealed his identity and then executed a search warrant of the premises.
At around 1905 hours, when the police started to conduct the house search, the defendant told a police officer that the dangerous drugs and packaging paraphernalia were kept inside a drawer of a white cabinet near the refrigerator. Inside this drawer the police officer seized a number of items, amongst which were:
(a) eight plastic bags containing the “Ice” that is the subject of the charge;
(b) one bundle of empty resealable transparent plastic bags;
(c) one electronic scale; and
(d) one pair of scissors.
Between 2356 hours on 4 July 2011 and 0700 hours on 5 July 2011, the defendant was interviewed on video. Under caution she admitted the following:
(a) the “Ice” seized was for sale;
(b) the packaging paraphernalia was for packing the “Ice”; and
(c) she rented the flat.
The Government Chemist certified that the eight bags of “Ice” were 11.14 grammes of a crystalline solid containing 10.90 grammes of methamphetamine hydrochloride, a salt of methamphetamine.
The total retail value of the drugs seized is estimated by a police drug expert to be $7,820.
In a number of different cases the Hong Kong Court of Appeal has set out the principles and sentencing guidelines for judges to follow when sentencing a defendant convicted of a drug trafficking offence.
The first is that the sentencing ranges for trafficking in “Ice” are to be taken from the guidelines laid down by the Court of Appeal in Attorney-General and Ching Kwok Hung [1991] 2 HKLRD 125as amended by the Court of Appeal in the subsequent decision of HKSAR v Capitania CACC28/2004. As a result of this subsequent amendment the first sentencing band relates to quantities up to 10 grammes and so in the present case, as the quantity in which this defendant trafficked was 10.90 grammes of “Ice”, this defendant is placed in the 7 to 10 years band for sentencing purposes.
The existence of these sentencing tariffs leaves little room for mitigation, but notwithstanding this, the sentencing tariffs play a very important role for two main reasons. Firstly, they lead to consistency in sentencing and avoid distinctions being drawn between drug traffickers based upon the nature of their trafficking, whether they be couriers, storekeepers, or play some other role. Whatever the role played by the trafficker, the sentence will generally be the same. See HKSAR v Manalo [2001] 1 HKLRD 557 at 560 G-H.
The purpose of these sentencing bands is to lead to consistency in sentencing, and secondly, to deter those who might otherwise be tempted by what they perceive as an easy and low‑risk means to substantial profits. See Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20.
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines, and that whilst a sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands. See the Chan Ka Wah case at page 908, paragraph 22.
No such circumstances are present in this case. Nevertheless, I still have some sentencing discretion, and I can take into account the amount of packets, the type of mixture containing the narcotic, the degree of the involvement of the offender and any previous involvement he or she may have had in drug offences. See HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Chong Heung Sang [2010] 3 HKC 88.
The defendant is 40 years of age and has received education only up to secondary Form 1 level. She was unemployed at the time of her arrest. She is single, and lived alone. She claims to have been addicted to “Ice” for the past 10 years.
She has a criminal record dating back to 1989, when she would have been only 18 years of age. She was then convicted and fined for possession of dangerous drugs. Then in 1993 she was convicted of robbery and sentenced to 12 months’ imprisonment. At around the same time, she was convicted of a further two charges of possession of dangerous drugs. In 1994 she was convicted in the High Court of 3 counts of trafficking in drugs, and sentenced to a total of 10 years’ imprisonment.
After her release from prison she has continued to be involved with dangerous drugs. She was convicted in 2002 of possession of dangerous drugs, and in 2005 of trafficking in dangerous drugs. For the trafficking offence she was sentenced to 13 months’ imprisonment. She then had convictions in 2007 for theft and possession of dangerous drugs, and mostly recently in 2008 for trafficking in dangerous drugs, when she was again sent to prison, this time for 16 months.
In identifying appropriate penalties when assessing an appropriate starting point, I cannot ignore the defendant’s criminal record. Her past offending reveals a failure to be deterred by the criminal justice process from reoffending. This failure to be deterred, this persistent reoffending, and this continued involvement in drug trafficking constitutes an aggravating factor justifying the adoption of a higher starting point. See HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.
However, her counsel asks for one last chance for her client. Amongst all the gloom, she points to a glimmer of hope in that the defendant did at one stage prior to these offences engage in some employment, and she does have a close bond with her adult daughter. These two factors may provide some hope that the defendant will try and break the cycle of drug addiction and drug trafficking which has dogged her life.
In the present case, the quantity of drugs is 10.90 grammes, just above the 10 grammes lower limit of the sentencing band. I have decided to extend to the defendant the last chance and the leniency that has been asked, and instead of increasing the starting point within this band, I will adopt the lower limit of the band as my starting point. That is, 7 years. I discount her sentence by one-third to allow for her plea of guilty.
The resulting sentence is 4 years and 8 months, and that is the sentence I impose.
Miss Kwok, your case is one which is of great concern to me and which disturbs me greatly. You have wasted your youth, and the only issue that remains is whether you can make something of the life that is left to you. Your life has been a cycle of drug addiction and drug trafficking interrupted by periods in prison because of these addictions. I fully appreciate that you may find drug trafficking an easy means of sourcing an income, since you do not have qualifications which would enable you to get a highly-paid job. However, you should be well aware that continued involvement in drug trafficking can only lead to further periods of imprisonment and the destruction of your life.
You are very fortunate indeed that you still have some closeness with your daughter. If you want to enjoy that relationship, then try and do something to break the cycle of drug addiction and drug trafficking. You will be well aware that the Commissioner for Correctional Services has the power to reduce your sentence further by remitting part of it should you be of good behaviour. You will also be aware of what facilities exist in prison that might enable you to acquire some kind of skill or qualification that you can make use of on your release.
What you do with your life after your release is entirely in your hands. You are fortunate indeed that I have not started at a higher starting point than the one I adopted. You can be confident that courts in future will not extend you any leniency should you appear again on drug‑trafficking charges.
Prison provides you with an opportunity to try and break away from drug trafficking and acquire a skill. I urge you to take advantage of that opportunity, otherwise you will find yourself regularly appearing in court and regularly being sent to prison.