CRIMINAL CASE NO. 263 OF 2009
All things considered, I will draw no distinction between any of the accused based on their ages or their records, the 3rd accused having a clear record while each of the others have been in trouble with the law before but not for anything nearly as serious as the present offence. Nor do I draw any distinction between the role played by each accused. Each played a significant role but there is nothing to suggest that any of them was a principal or “a big fish” as it is sometimes put, in the drug trade.
As to the 2nd accused having said to the police that he had been told to move cannabis, I note the statement in Cross & Cheung on Sentencing in Hong Kong, 5th Edition (2007) at page 599:
“A court can take into account an offender’s mistaken belief that the drug was of a less potent type than in fact it was. But even then, the sentence will be in accordance with the tariff for the actual drug trafficked, with a discount for the mistaken, but genuine belief that the drug was something else. If the offender takes a chance on the nature of the drug and has no actual concern for the type of drug, there can be no discount.”
As it seems to me, this is not a case for a discount on that basis. The 2nd accused disputed the statement. Moreover the statement was by no means the only evidence against him.
The fact that the offence is one of attempting to traffic in a dangerous drug rather than the full offence of trafficking in a dangerous drug is due only to the fact that the police took the sensible step of replacing the original dangerous drugs with dummy drugs. The accused are no less blameworthy just because of that substitution. Nevertheless, I will take into account in their favour that their offence is one of attempt rather than the full offence.
There is no difference between the penalty each accused deserves. There is no real mitigation as such available to any of them. At the same time, I will not treat the offence as aggravated by anything, and I will not enhance the sentence. I will sentence them as leniently as the facts, the appropriate sentencing guidelines and my duty to the public permits.
The original dangerous drugs, being the dangerous drugs in which the accused attempted to traffic, consist of 10,877.65 grammes of a powder containing 6,605.68 grammes of cocaine.
All things considered, I consider that the appropriate sentence for each accused is 25 years’ imprisonment, and I sentence each of them to 25 years’ imprisonment.