COURT: Diao Jun-hua pleaded guilty before a Magistrate to two counts of trafficking in dangerous drugs and two counts of money laundering. He was committed to this court for sentence. However, there are some significant background events germane to the assessment of the sentence appropriate to Mr Diao.
This case is closely connected with HCCC 312/2019, HKSAR v Tsoi For. In that case, Mr Tsoi For was tried on an indictment alleging trafficking in a dangerous drug and three money laundering charges. As a matter of history, Mr Tsoi was acquitted by following the verdict of not guilty of one of the counts of money laundering. That related to a bank account in his own name. Earlier in the proceedings, he was held to have no case to answer on a further count of money laundering involving a substantial quantity of cash found in the premises in which he and Mr Diao lived. That cash is the subject of one of the money laundering charges to which Mr Diao has pleaded guilty. In Mr Tsoi’s case, the jury could not agree on the trafficking in dangerous drugs count and a further count of money laundering involving a joint account, which Mr Tsoi held with Mr Diao. The trafficking count upon which the jury could not agree in Mr Tsoi’s case, is in the same terms as the 2nd Count faced by Mr Diao in the present proceedings. The money laundering count upon which the jury could not agree is the same as one of the money laundering charges to which Mr Diao has pleaded guilty.
I tried that case and entered the acquittals in relation to the two money laundering counts, to which reference has been made. In relation to the trafficking in dangerous drugs count and the remaining money laundering count, I discharged the jury. It is relevant to make the point that on the indictment faced by Mr Tsoi, which is the trafficking in dangerous drugs count, the drugs averred in that count are the same as in the second charge to which Mr Diao has pleaded guilty. The case against Mr Tsoi in relation to this charge was presented upon the basis that he was aiding and abetting the traffic of Mr Diao. The outstanding money laundering charge is, as I have mentioned, the same as on the 3rd Count in the charge sheet against Mr Diao. In relation to this count, Mr Tsoi was prosecuted on the basis that he was a co-principal.
I mention this history for a number of reasons. The first is that the premises which were the subject of the raid by Customs and Excise Service officers, to which I will return very briefly, resulted in the prosecution of Mr Tsoi and Mr Diao. The second is that these men were living together as partners in the same premise. The third is that Mr Diao testified at the trial of Mr Tsoi as a defence witness. A good deal of the material covered in his testimony is replicated in the submissions in mitigation advanced by his counsel on his behalf. The fourth is that the charge sheet to which Mr Diao pleaded guilty alleged that, with the exception of the first charge, he committed those crimes with Mr Tsoi. For the record, Mr Diao’s plea of guilty has no impact on whether or not Mr Tsoi is, or may be liable to be convicted on any of the joint counts.
Procedural history
On 12 May 2018, officers of the Customs and Excise Service examined an inbound parcel from Lithuania conveyed by UPS. They examined the parcel and found 11 plastic bottles which contained a substance known as gamma-butyrolactone - here after referred to as “GBL”. GBL is a dangerous drug under the First Schedule of the Dangerous Drugs Ordinance. The parcel bore the address 2nd Floor, 66 Peel Street, Central, in Hong Kong. That is where Mr Diao and Mr Tsoi lived together. The officers took that parcel to the address disguised as UPS couriers. On arrival, Mr Diao met the officers and took delivery of the parcel. He was arrested and cautioned and said that the parcel belonged to him and it contained water for cleaning.
The GBL received by Mr Diao and delivered by the customs officers disguised as UPS officers contained 10.21 litres of a liquid containing 8.853 kilogrammes of GBL. That formed the basis for Count 1 that he faced, trafficking in dangerous drugs.
Following his arrest, Mr Diao permitted the officers to enter the premises at Peel Street and a search was conducted. A further quantity of GBL was found in the refrigerator of the premises, together with some herbal cannabis weighing 38.63 grammes. The search revealed, amongst other things, 2,964 millilitres of a liquid containing 2,490 grammes of GBL. A search of the bedroom occupied by Mr Diao was conducted and a further quantity of drugs was found, including 1,602.75 grammes of a crystalline solid containing 1,489.46 grammes of methamphetamine hydrochloride. 48.16 grammes of a solid containing 22.31 grammes of cocaine. 30.70 grammes of a powder containing 26.90 grammes of ketamine. 1,031 tablets and 4 tablets fragments totalling, I think, 180.13 grammes of MDMA and 75.36 grammes of cannabis resin. 44 tablets containing 82 milligrams of phenazepam, 60 tablets containing 0.89 grammes of methamphetamine and 0.5 grammes of a powder containing 0.01 grammes of methamphetamine and 0.17 grammes of MDMA.
Also found in the refrigerator in the premises was the sum of $375,920 in cash. That formed the subject of the fourth charge on the charge sheet, that was a charge of money laundering.
A body search was conducted on Mr Diao and just over $6,800 was found on him, together with five mobile phones. These were seized.
Mr Diao was arrested and cautioned for the exhibits found in the premises at Peel Street. He admitted that the drugs to which reference has already been made were his and belonged to him for the purpose of selling. He admitted that the GBL was his and was there for the purpose of selling. He admitted ownership of the money in the premises. He admitted that a notebook found in the open kitchen recorded drug transactions and against the entries in that, the words, “Tina”, were meant to represent transactions for methamphetamine hydrochloride or ‘Ice’. A post-record of his admissions were made to the Customs and Excise Service officers.
On 15 May 2018, Mr Diao underwent a video-recorded interview and told the officers under caution the following:
He was an Australian and had a restaurant in Australia;
(1) He went to Shanghai in 2007 and set up a tanning studio;
(2) He then went to Shenzhen in about 2014 and set up a massage shop;
(3) He was retired at the time of the arrest;
(4) He was on a tourist visa and could not stay more than 3 months at a time in Hong Kong;
(5) He had moved to Hong Kong in 2015 or 2016;
(6) He bought the GBL for sale but about half a litre was to be used for cleaning; all the dangerous drugs seized on the premises belonged to him and they were for sale;
(7) He bought the drugs from an Indian and an Asian and he communicated with the drug sellers by WhatsApp;
(8) He sold drugs and marked up the price by 60 per cent when he sold to his customers;
(9) He earned his living by selling drugs;
(10) The notebooks seized by the officers contained records of drug transactions;
(11) The cash seized on the premises would be used to purchase drugs;
(12) And finally, his customers would pay him by cash, a service known as “Payme”, or transferred to his bank account.
The drug transaction records in the two notebooks were analysed and revealed that from 17 September 2016 to 14 May 2018, there were a total of 4,497 drug transaction records which averaged just over seven transactions a day and that the value of the drugs sold by him, as recorded in the notebook, was about $7.7 million.
Investigations were conducted and revealed that Mr Diao had a joint bank account with Mr Tsoi at HSBC. This was the subject of the third charge on the charge sheet. An analysis of the records of the bank indicated total deposits of $4,252,188. A feature of the deposits in the bank is that there were frequent substantial cash deposits.
Mr Diao came before a Magistrate on 16 September 2019. On that date, he pleaded guilty and admitted the Summary of Facts found at page 61 of the record. The admissions included paragraph 13 of that summary, which I think it is appropriate to read in full.
“At all material times, [Mr Diao] possessed the drugs seized in Charges 1 and 2 for the purpose of unlawful trafficking. At all material times, [Mr Diao] dealt with the properties in Charges 3 and 5 knowing or believing the said properties in whole or in part directly or indirectly, represented proceeds of an indictable offence.”
It is appropriate to note that at the trial of Mr Tsoi, when he testified, Mr Diao took full responsibility for the drugs and the money.
Antecedents and Mitigation
Mr Diao told an officer of the Customs and Excise Service that he was an Australian citizen and carried an Australian passport. He was born on 13 January 1964. He had no previous convictions in either Hong Kong or Australia.
He told the officer that he was HIV positive.
Ms Juliana Chow, Barrister-at-Law, advanced a number of matters in mitigation. She told the court that Mr Diao was born in Mainland China and emigrated to Australia at the age of 24. She said that his parents are both in their 80s and they live in Shanghai. He has a sister in Australia. The elder sister has a son who is close to Mr Diao and, indeed, Mr Diao acts in a parental role in relation to this son, and has done for some considerable time. That person is now attending medical school in Australia and is financially supported by Mr Diao.
I was told by Ms Chow that Mr Diao received a Bachelor’s Degree in Fibre Textile Technology from the Shanghai Textile University. He worked in that industry in Australia but in 1991, took a different path and became a chef and restaurant owner in Australia. About that time, he confirmed to himself that he was a homosexual man. The running of the restaurant business in Australia was, so Ms Chow tells me, a validation for sexuality of Mr Diao. In the result, he closed his restaurant in 2007 and travelled to Europe. That had the consequence of him discovering a business opportunity in the field of indoor tanning. As a consequence of this, he opened a tanning studio in Shanghai when he returned there.
In 2015, Mr Diao was diagnosed as having AIDS. That was, I have no doubt, a severe blow to him, both physically and mentally. Ms Chow submits that he regarded his own death as imminent and this motivated him to worry about sorting out his obligations to his family and others. He was, at the time, the only breadwinner in his family, supporting both his aged parents in Shanghai, and his elder sister in Australia. The elder sister returned to Shanghai to offer full-time care to their parents. Mr Diao also supported the son of his elder sister in the matter I have already described.
Ms Chow told me that the AIDS diagnosis placed Mr Diao under tremendous financial pressure because he was supporting the households in Australia and also having to support payments for his own medical treatment. This led, so Ms Chow submits, to Mr Diao turning to the idea of trafficking in dangerous drugs. I also learned from the trial of Mr Tsoi that he and Mr Diao were partners, living in the same premises. Although the precise scope and nature of their relationship was not made absolutely plain, it seemed to me that they were very close and Mr Diao felt a strong bond, including a deep loyalty for Mr Tsoi. The other thing that I noted in the trial was that Mr Diao was a highly intelligent and rational person. He was methodical and this extended to his drug trafficking activities and his record-keeping in this regard.
During the trial of Mr Tsoi, he told the court that part of his motivation in setting up the joint account between himself and Mr Tsoi was to build up a record of them having an account together, because they both intended to live in Australia in the future. In this regard, the intention was that Mr Diao, as an Australian citizen, would sponsor the emigration of Mr Tsoi. I am sure that I have over-simplified that process, but that is the critical component relevant to the determination of sentence.
Sentencing Principles
Trafficking in dangerous drugs - starting point
The community of Hong Kong and, as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’, cocaine and other drugs. ‘Ice’ has, in particular, terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment. The trafficking and possession of ‘Ice’ can also have serious consequences for the family members close to the accused.
It also has serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to these drugs. However, the conduct of persons affected by ‘Ice’ in private, and possibly more pertinently in public, can be quite dangerous.
What I have said about ‘Ice’ is also true about the cocaine, ketamine and MDMA. Each of those has its own unique clinical and societal consequences. They vary in their impacts. The ingestion of each of them is a very serious matter and the commercial sale of those drugs is most serious. In relation to ‘Ice’, cocaine, ketamine and MDMA, the courts of Hong Kong have developed guidelines for the trafficking in those drugs.
The view of the community and the courts is reflected in the nature of the sentences and the levels traditionally imposed for drug trafficking.
To reflect the serious view that the courts and the community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of drugs, including the drugs, other than GBL, which is the subject of the charges in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.
For the quantities involved in the present case, the guidelines for these drugs indicates the starting points which are fixed as follows:
(1) ‘Ice’
For trafficking in quantities between 1.2 kilograms and 4 kilograms, the starting point is between 23 and 26 years’ imprisonment is indicated. See HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah [2009] 2 HKLRD 437. On that premise, for 1,489 grammes of ‘Ice’, the starting in the present case should be about 24 years.
(2) Cocaine
For quantities between 10 grammes and 50 grammes, the starting point is 5 to 8 years’ imprisonment. See R v Lau Tak Ming & Ors [1990] 2 HKLR 370, HKSAR v Abdallah [2009] 2 HKLRD 437. On that premise, for 22.31 grammes of cocaine, the starting point in the present case should be of the order of 5 years and 11 months.
(3) Ketamine and MDMA
Ketamine and MDMA share the same guideline and for trafficking in 50 grammes to 300 grammes, ketamine and MDMA or ecstasy, the guidelines suggest also a starting point of imprisonment of 6 to 9 years. See Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. On that premise, combining the weights of ketamine, MDMA and phenazepam, this arrives at a starting point of about 8 years and 11 months.
(4) Cannabis Resin
For trafficking in up to 2,000 grammes of cannabis resin, a starting point of up to 16 months is appropriate. See AG v Tuen Shui Ming & Anor [1995] 2 HKCLR 129. On that premise, for 75.36 grammes of cannabis resin, the starting point in the present case should be 1½ months.
(5) Herbal Cannabis
For trafficking in up to 2,000 grammes of herbal cannabis, the starting point of 38.63 grammes of herbal cannabis should be 2 weeks.
The other dangerous drug in this mix is GBL. This drug is, in comparison to ‘Ice’, cocaine, ketamine and MDMA, a less well-known drug in Hong Kong. It has been listed in the first Schedule to the Dangerous Drugs Ordinance since 2012. There are no sentencing guidelines established by the Appellate Courts for the trafficking in this chemical. In HKSAR v Jin Bin & Anor, HCCC 223/2018, Barnes J considered the appropriate sentencing approach for this drug. She relied on an expert report on the nature of the drug. Indeed, she heard, and accepted, testimony from the author of the report. Further, in HKSAR v Lai Keung, William [2019] HKCFI 2108, Woodcock DJ dealt with a case involving the sentencing for trafficking in GBL. She also considered the report provided to Barnes J, and accepted the reasoning in that report which she accepted as the reasoning as to the proper approach to sentencing, propounded by Barnes J. I quote from the reasons for sentence of Woodcock DJ, where she articulates aspects of the expert report that both she and Barnes J considered, which was written by Dr Chan Chi-hung. Woodcock DJ observed:
According to Dr Chan, GBL is a solvent and reagent used in industrial chemistry or chemicals. It is also a solvent in cleaning products. It is a colourless, soluble liquid when put in water. It has a distinctive taste and odour but it can be masked by drinks such as soft drinks, ale or juice. GBL is a prodrug of gamma-hydroxybutyric acid, an abusive drug commonly known as “GHB” or the “date-rape drug”. After oral ingestion, GBL is rapidly absorbed and converted to GHB by the body. The effect of the drug occurs within 15 minutes of ingestion and lasts several hours.
There is no published human GBL dose effect data, so Dr Chan used the available human GHB dose effect data from volunteer studies and case reports published outside of Hong Kong. The effects following the use of GBL dose from 0.7 g to over 2.4 g in a 50-kilogramme man range from confusion, euphoria, memory loss and drowsiness to life-threatening harmful effects, including deep coma, respiratory depression, cerebral hypoxia. Other reported clinical effects from GBL use include bradycardia, hypertension, hypothermia, vomiting and respiratory depression. Salivation and vomiting can complicate the respiratory depression leading to aspiration pneumonia in comatose patients.
Dr Chan writes that the confusion and euphoria associated with GBL use increases the chance of risky behaviour and accidental injuries. The clinical effects at this dose is comparable to the euphoric and disinhibited effects of alcohol intoxication. Victims of GBL intoxication tend to suffer from anterograde amnesia, making it difficult to recall events that precipitated the recreational use and that the alleged drug has facilitated sexual assaults.
At paragraph 27 of his report, Dr Chan says when used as an abusive substance, GBL is a central nervous system depressant with clinical effects similar to that of acute alcohol intoxication and acute benzodiazepine intoxication. The clinical effects of GBL is indistinguishable from that of the “date-rape drug”. There have been reports of GBL being sold as GHB in London. Both drugs have been used in criminal settings to commit drug-facilitated sexual assaults. Both drugs can be used as the liquid form of the “date-rape drug” and because it is colourless and only a small amount is necessary to drop in a person’s drink - an unaware person - then that person is vulnerable to sexual assault or rape.
GBL can be added to drinks and a recreational dosage of around 1.13 g of GBL or 1 millilitre of pure liquid will create euphoria. However, an ingestion of more than 2.4 g will result in a deep coma and could be fatal without medical intervention. The addictiveness and abuse potential of GBL is comparable to benzodiazepine. For benzodiazepine to cause death, one has to take 50 to 100 mg, meaning that an accidental overdose is not likely with that drug. Therefore, the safety margin of benzodiazepine is much higher than the safety margin of GBL.
The method of use is by oral ingestion and adding a dose to beverages for consumption. It is either taken in a single dose or in separate portions over a period of time. According to overseas reports, GBL is used specifically in recreational settings such as bars, raves and nightclubs. There is a high use of GBL or GHB amongst homosexual men. Among respondents sampled in gay or homosexual bars in Amsterdam, the prevalence for GHB or GBL use rose to 17.5 percent compared to less than 5 percent among respondents in the more mainstream or student pubs or bars.
Chronic users of GBL can develop physical dependence and tolerance. There will be withdrawal symptoms if there is an abrupt cessation of GBL usage, often indistinguishable from alcohol withdrawal. It is a dangerous drug in Hong Kong but its use is considered uncommon here for the time being.
In Dr Chan’s opinion, the usage pattern of GBL is similar to that of alcohol and benzodiazepine. From what he says in his report, it is clear that GBL has a narrow safety margin between a recreational dose and a poisoning dose. Moreover, it is a drug that can potentially facilitate offenders to commit sexual offences against unsuspecting victims. If an offender uses too much to incapacitate a victim, then it could be potentially lethal or fatal without medical care.
Woodcock DJ added that there was no evidence before her that the use of GBL to facilitate sexual abuse is prevalent in Hong Kong at present. That is also the position before me.
As Barnes J and Woodcock DJ concluded, this chemical, when used as a drug, has potentially serious consequences and sentencing for GBL must reflect that. Barnes J took the view that, in view of the clear dangers associated with the ingestion of GBL, that a sentence in the order of 50 per cent over the appropriate starting point for benzodiazepines, would be appropriate. In my opinion, that approach is cogent and, in the absence of sentencing guidelines by our Appellate Court, this is the approach I intend to adopt. In Attorney General v Chan Chi Man [1987] HKLR 221, the Court of Appeal (Roberts CJ, Li VP and Silke JA) considered sentencing guidelines, for amongst other things, methaqualone, which is a form of benzodiazepine. In that case, the Court of Appeal held that the guidelines for methaqualione should be as follows: ([1987] HKLR 221, 226)
(a) under 500 grammes - as the court things fit;
(b) over 500 grammes - 6 to 12 months;
(c) over 1,000 grammes - 12 to 24 months;
(d) over 2,000 grammes - 2 to 3 years;
(e) over 3,000 grammes - 3 years to 4½ years;
(f) over 6,000 grammes - 4½ years to 6 years;
(g) over 9,000 grammes - 6 years upwards.
Plainly, the progression in sentencing levels in these guidelines is not linear. In Chan Chi Man, the quantity of methaqualone in issue was just over 33.5 kilograms. The Court of Appeal indicated that, but for the fact that this was an Attorney-General’s review, the appropriate sentence would have been somewhere between 7 and 10 years.
In the present case, taking the GBL in Charges 1 and 2 together, it had a total weight of 11.34 kilograms. I consider an appropriate starting point of 9 years is appropriate for the GBL.
Sentencing where there are many drugs involved
There are well-established sentencing guidelines available in such a circumstance. In HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367, these were identified as the individual approach with the starting point for the multiple drugs involved is identified in the combined approach where a sentence for the most serious drug would be identified before making an upward adjustment to take account of significant of other less serious drugs (by reference to their potency). The authorities recognise the imperfections in both means of approaching the overall sentence and, the Court of Appeal said in Yip Wai Yin (above) that the task was to sentence fairly, realistically and in a common sense manner. The court recognised in HKSAR v Cheung Kwok Leung [2003] HKLRD 542, the difficulty of the task involved. That, applied to this case, is no understatement.
The notion that a sentence based on consecutive sentences for the drugs, the subject of Counts 1 and 2, would result in a very high sentence, and on totality grounds alone, would result in a sentence which is unjust. The fact that there are substantial quantities of drugs in the 2nd Count makes such a calculation impractical.
It seems to me that the combined approach is the most appropriate for this case. Plainly, the most potent drug trafficked by Mr Diao was the ‘Ice’. The largest quantity is manifestly the GBL. If the narcotic weights in both Charges 1 and 2 are combined, the weight is just over 13 kilos. If all the drugs were treated as ‘Ice’, then the approach in Abdallah (above) would be appropriate. At the narcotic weights involved in the present case, the ‘Ice’ would be treated as heroin and cocaine, and at this quantity, the guidelines suggest a starting point of between 26 and 30 years’ imprisonment. That would put the starting point at somewhere in the order of 28 years. However, the majority, that is about 86 per cent of the narcotic weight, is attributed to GBL. On this premise, the more realistic overall starting point would be 24½ years.
I have been the beneficiary of helpful submissions by both the prosecution (as to principle) and by counsel for Mr Diao. Both parties accept the overall starting point of 24½ years is appropriate in the present case in relation to the drugs. Because there are two counts of drug trafficking, and it is necessary to sentence on both of these counts, I have broken up the overall starting point to 3½ years in relation to Count 1 and 21 years on Count 2. It will be immediately apparent that this is a somewhat arbitrary division. What I am concerned with is the overall result on the trafficking counts.
Money Laundering
The Appellate Courts of Hong Kong have made it plain that there is no tariff of money laundering. This is a recognition of the many and varied ways in which such a crime might be committed. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the Court of Appeal held that the principle considerations are as follows:
(a) The amount of the money involved was the major
consideration, not the amount of benefit received by a defendant in the transaction;
(b) The culpability of the offence lay in and the assistance, support and encouragement offered to the commission of an indictable offence so a defendant’s level of participation and number of occasions on which he was involved in the “money laundering” activities were relevant factors;
(c) The offence of dealing with the proceeds from an
indictment offence did not necessarily have any direct correlation with the indictable offence in question, but if the latter offence could be identified, the court could take into account the sentence imposed on it per se when determining the sentence for the former offence;
(d) If the case had an international element involving activities carried out across different regions, the court might impose a more severe sentence so as to protect Hong Kong’s reputation as an international finance centre and banking hub from being tarnished; and
(e) The length of the time the offence lasted.
Adopting this analysis, the total deposits in the joint account is about 4.4 million. The money laundering did not, in the present case, involve any attempt to disguise the proceeds of the crime. The joint bank account was clearly the clear account of choice into which the proceeds of sale of the various dangerous drugs was deposited. It is certainly true that the motivation for setting up and maintaining the joint account was to provide a basis for Mr Diao, and for that matter, Mr Tsoi, contending to the Australian Immigration Authorities that Mr Diao and his partner were an enduring couple. There is more than an element of wishful thinking in that, because I cannot imagine that if this account was presented to the Australian Immigration Authorities as a basis for the couple having an enduring relationship, that those authorities would not ask some very pointed questions about the source of the funds. In the result, this goes to underline the absence of any attempt to disguise or convert the proceeds. I am sure that the vast majority of the deposits in the joint account were the proceeds of Mr Diao’s drug trafficking. There is no international element involved. The length of time that the offence lasted was about 18 months. Clearly, on no account could it be said that this was a one-off transaction in a bank account.
The topic of the appropriate approach to sentence in money-laundering cases was also considered in HKSAR v Boma [2012] 2 HKLRD 33. In this case, Stock VP, recognised the multiplicity of circumstances in which the offence could be committed. Taking account of the factors discussed by Stock VP, which compliment those in Hsu Yu Yi (above), to which a reference has been made, the predicate offence is drug trafficking and as I have already noted, the proceeds were simply banked into a joint account. There is a substantial amount of cash in the refrigerator in the premises which was plainly used for drug trafficking, and that cannot be ignored. However, in my view, the conduct of the money-laundering in this case is relatively unsophisticated.
It is also relevant to note that the decision of the Court of Appeal in HKSAR v Lam Chi Wah CACC 94/2008, considered cases where the drug trafficker was laundering his own proceeds. That plainly resonates with the present case. This is relevant because in this case, the Court of Appeal recognised that it would be open to the sentencing court to make the sentences for the drug trafficking and the money-laundering where the drug trafficker was laundering his own proceeds, partly consecutive and partly concurrent, or wholly concurrent.
In my judgment, taking account of the substantial amount of money involved in the money-laundering counts and the source of the funds, but allowing for the fact that nothing in the conduct of Mr Diao could be said to disguise the proceeds of his crime, and the fact that the money-laundering was, all things considered, relatively unsophisticated, a starting point of about 3½ years is about right. I will consider to what extent the sentence should be consecutive or concurrent with the more serious drug trafficking sentence. Again, it is necessary to sentence on each count and I propose to make the starting point 3 years on Count 3, and 6 months on Count 4.
Discount
The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point by a factor of 33 per cent.
Resolution
Before I bring this case to resolution, let me make it absolutely plain. On no account does any part of this sentence for drug trafficking take into account what the records to which Mr Diao has made admissions, reveal. That he had trafficked in a very substantial quantity of drugs and he had done so over a substantial time. I can only sentence, and I do only sentence, on the charges which are before me.
In this case, Mr Diao set out what appears to me to be an ordered and deliberate manner to raise funds by drug trafficking. While the motivation of the raising of funds is undoubtedly laudable, the method of doing so is the complete and exact opposite. While it might be said that Mr Diao was doing good for those in respect of whom he considered himself financially responsible, in selling the drugs that he did he was doing serious harm. In relation to the ‘Ice’ and the cocaine, the harm is plain and obvious and it must have been plain and obvious to Mr Diao. I recognise the contention that it was perhaps less obvious in relation to the GBL, but the expert opinion upon which the courts have relied in recent times as to the impact of GBL on the persons who ingest it and the risk of harm, simply cannot be ignored. Even if it is true that Mr Diao saw no harm in selling this drug, it is manifestly a dangerous drug and the risks to the community in the sense of the direct physical risks to the persons who ingest the drugs and the societal risks in terms of potential exploitation of persons, is for those persons foolish enough to ingest those drugs, something which simply cannot be ignored.
Mr Diao has deliberately set about trafficking in dangerous drugs as a solution for the need for money based on the obligation he felt to other persons. Unlike many traffickers that come before the courts, Mr Diao was not trafficking to feed his own habit, he was trafficking to make money. I accept as true his motivation, but the evil and the potential misery he perpetrated on others by selling the drugs in his possession, makes his motivation, no matter how laudable, utterly irrelevant in the assessment of the appropriate penalty.
There is a great deal of force in the proposition that where the trafficker is himself dealing with his own proceeds, that either a partly consecutive and partly concurrent sentence, or wholly concurrent sentence with the drug trafficking charge, is indicated. In my view, this is particularly so where the proceeds were simply banked. I have also observed that there was no attempt to convert or conceal the manner in which the drug trafficking proceeds were received, and that is one of the critical objectives of the criminalisation of dealing in the proceeds of crime. For this reason, my choice is between making a small portion of the money-laundering counts consecutive to the sentence I intend to impose on the drug trafficking, or make this wholly concurrent. I was sorely tempted to choose the first option, not the least reason for which is that that money actually represents past trafficking, but I cannot sentence for that. I think the more just outcome would be to order the money laundering sentences to be served wholly concurrently with the drug trafficking sentences.
Plainly, Mr Diao is entitled to the full discount for his plea of guilty.
Doing the best I can to temper justice with mercy, and trying to balance (1) the utter seriousness of the conduct of Mr Diao, to which he has pleaded guilty and, (2) the mitigation advanced so cogently by his counsel, the order of this court is that he be sentenced as follows:
Count 1: 2 years and 4 months’ imprisonment.
Count 2: 14 years’ imprisonment.
Count 3: 2 years’ imprisonment.
Count 4: 4 months’ imprisonment.
The sentences on Counts 1 and 2 are to be served consecutively. The sentences on Counts 3 and 4 are to be served concurrently with each other and concurrently with the sentences on Counts 1 and 2. That makes the overall sentence that Mr Diao must serve is 16 years and 4 months, and that is the order of the court.