CRIMINAL CASE NO. 22 OF 2011
COURT: This defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The drug was heroin. The quantity was 0.76 kilograms of a mixture, the narcotic quantity of which was 0.38 kgs of heroin hydrochloride and 0.15 kg of monoacetylmorphine hydrochloride.
The facts admitted by the defendant show that, on 24 June 2010, she entered Hong Kong via the International Airport by plane from Bangkok. She was intercepted for a personal search and although nothing was found, she was suspected of having concealed dangerous drugs. Accordingly, she was sent to Queen Elizabeth Hospital where medical staff confirmed by X-ray that there were foreign objects inside her body. The defendant was arrested and admitted to the ward.
Between 25 and 28 June 2010, the accused discharged a total of 73 pellets. Subsequent analysis by the Government Chemist established the quantities of drug as set out in the particulars of the charge. The estimated retail value of the drugs at the time of the arrest was HK$642,200.
The accused admitted that at all material times she knowingly had the drugs the subject of the charge for the purpose of unlawful trafficking.
The defendant is a Philippines national and was born on 2 October 1976. She was aged 34. She was educated to Primary 6 level in the Philippines. Prior to her arrest, she had been working in a canteen as a cook, earning the equivalent of HK$1,000 a month. She also did part-time work as a laundrywoman to earn another 1,000 a month. She has five children aged from 2½ to 14 years. She has a clear record in Hong Kong.
In mitigation, I was advised that she had three children by one father who subsequently died and two children by another man from whom she was separated. Her children were being cared for by her sister, aged 24. Her sister is unable to continue to care for the children because she has no money and is considering putting them in an orphanage.
I have had put before me letters from the defendant in which she expresses her remorse and asks for leniency, in particular because of her children. There is also a letter from her sister making the same pleas, and a letter from her daughter who is now aged 14, also asking for mercy for her mother.
I was advised by counsel that the defendant was effectively tricked into going to Bangkok with the promises of legitimate jobs. When she got there, she was told that she was to be a drug mule and, eventually, with reluctance, she agreed to do one trip. If she had been successful, she was to receive a sum of $5,000 American dollars.
The total quantity of narcotic involved in this charge is 0.53 of a kilogram. Under the Lau Tak Ming guidelines, (The Queen v Lau Tak Ming [1990] 2 HKLR 370) that quantity comes within the range of 400 to 600 grammes for which the sentencing range is 15 to 20 years’ imprisonment.
The court is also obliged to consider the question of enhancement of the sentence because of the importation element. That was established in HKSAR v Abdallah [2009] HKLRD 437. Abdallah set the range for sentences where the quantity was far in excess of the 600 grammes cut-off point in Lau Tak Ming.
The court, in dealing with aggravating factors that could affect sentence, looked at the matter of importation and commented, in Abdallah:
“We do not envision that the enhancement, for any of the reasons we have itemised, for amounts above 1 kilogram will be less than 2 years’ imprisonment, in addition to the new guideline tariffs we have set out.”
However, in the instant case, the quantity of narcotic was below 600 grammes and although some enhancement might be considered necessary, it was certainly not to the level referred to in Abdallah.
In this case, I adopt a starting point of 15 years. The only valid mitigation in this case is the plea of guilty which, I accept, was an early plea as it was notified prior to the pre-trial review and the defendant is entitled to the full one-third discount.
As an act of mercy, I leave the sentence at 10 years’ imprisonment without making any additional importation quantity enhancement, but I stress that this is based on the particular facts of this case. It is not a matter to be relied on as a precedent in future cases.