HKSAR v. Esterhuizen Alwyn

DCCC1069/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1069 OF 2008

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Before:   H H Judge Whaley

Date:     20 January 2009 at 12.43 pm

Offence:  Trafficking in a dangerous drug (販運危險藥物)

Reasons for Sentence

1. The defendant has been convicted on his plea of one charge of trafficking in dangerous drugs, namely, on 19 August last year, at the examination counter at the Hong Kong International Airport, he was found to be trafficking in 21,705.79 grammes of cannabis in herbal form.

2. As disclosed by the Agreed Facts, the defendant was intercepted going through the green “Nothing to Declare Channel” at the airport, his luggage was searched, and the herbal cannabis was found inside a suitcase, wrapped inside a blanket, consisting of 22 slabs of cannabis in herbal form. 

3. The defendant subsequently admitted during interview that he was carrying the drugs for a Nigerian drug trafficker who had previously supplied him with drugs for his own consumption, and on this occasion, he was promised a reward of US$5,000 for bringing in the drugs to Hong Kong.

4. The defendant is 24 years old and he has a clear record.  The courts in Hong Kong take a very serious view of the offence of trafficking in dangerous drugs.  Heavy prison sentences are imposed in the hope that this will deter people like yourself who would otherwise succumb to the temptation of making what may appear to be easy money, by carrying drugs for someone else. It is seldom the big fish who are caught, it is invariably couriers like yourself.

5. I note that the defendant has been a drug addict for some 12 years, also addicted to alcohol, and I accept that he is very remorseful for what he has done, as evidenced partly by his having pleaded guilty at the earliest available opportunity.  I note that he has been extremely co-operative with the police to the extent that he took them to the designated place where he was due to meet this Nigerian and hand over the drugs, in order to enable the police to ambush and capture him.  However, the scheme did not work, since the Nigerian man did not reveal himself.  Nevertheless, I accept this was co-operation somewhat beyond the normal degree of co-operation that one experiences in these cases. 

6. I note also that the defendant has been in custody since 19 August and he has suffered some emotional problems in consequence, which resulted in his spending two months in Siu Lam Psychiatric Centre.

7. The Court of Appeal has laid down guidelines for sentencing in these cases, the aim of which are to attempt to achieve a high degree of uniformity in the sentences which different courts hand down for these offences; and also to make it clear what sort of sentence a person can expect to receive and to enable his lawyers to advise him what sort of sentence he can expect to receive if he is caught trafficking in dangerous drugs.  The governing authority in relation to trafficking in cannabis is still Attorney General v Tuen Shui Ming & Another [1995] 2 HKC 798 in which the court revised somewhat the guidelines that had been earlier suggested in Attorney General v Chan Chi Man [1987] HKLR 221.  The guidelines indicate that for a quantity of cannabis resin of over 9,000 grammes, a starting point of 4 years upwards would normally be appropriate. 

8. As I indicated to Mr Nasir during his very full and helpful submissions in mitigation on behalf of the defendant, the quantity in the present case of considerably more than 9,000 grammes would call for a starting point of in excess of 4 years, if this was cannabis resin.

9. On the other hand, I have noted that in R v Li Mo Boon [1991] HKCA 138 the defendant was trafficking in just over 12,000 grammes of cannabis resin, for which he was sentenced to 5 years’ imprisonment, which was endorsed by the Court of Appeal. 

10. Furthermore, in AG v Tuen Shui Ming & Ano (supra), the quantity of cannabis resin being trafficked in was 51,230 grammes - more than twice the quantity in the present case - and the Court of Appeal stated that the appropriate starting point for that quantity was 7 years’ imprisonment. 

11. Bearing in mind that the quantity in the present case is 21,705 grammes of herbal cannabis, in my view, the appropriate starting point would be 5 years’ imprisonment if this was cannabis resin.  However I bear in mind that it is herbal cannabis and that the court in AG v Tuen Shui Ming stated that the sentencing court could adjust the tariff by applying a discount of up to 1 year for herbal cannabis within the range suggested by the guidelines.  In my view the appropriate starting point for the present quantity of herbal cannabis, is 4 years’ imprisonment.

12. In return for his plea of guilty and his co-operation with the authorities, the defendant is entitled to the normal one-third discount, which discounts the starting point of 4 years to 32 months’ imprisonment.  In all the circumstances and to reflect the further aspects of mitigation that I have referred to, I discount that by a further 2 months, and I impose a sentence of 30 months’ imprisonment on the defendant.