CRIMINAL CASE NO. 173 OF 2011
COURT: In this matter, on 20 May this year, the defendant pleaded guilty to one charge of trafficking in dangerous drugs. Today before me he has confirmed that plea of guilty.
On that occasion, a Summary of Facts was read in open court and agreed to by the defendant. Today again before me he has confirmed that Summary of Facts.
The particulars of the charge allege that he did, on 12 December 2010, traffic in a dangerous drug, namely four packets consisting of 138.91 grammes of a mixture containing 118.72 grammes of heroin hydrochloride.
The Summary of Facts reveals an all too familiar scenario. Around midday on 12 December 2010, the defendant arrived in Hong Kong from the mainland at the Low Wu border crossing. He was intercepted by police officers. Obviously there were suspicions surrounding his entry into Hong Kong, and those suspicions proved to be correct.
From the Lo Wu Border Control Point he was conveyed to the North District Hospital, where a doctor x-rayed his abdomen. It was apparent that there were four packets of substance concealed in his rectum. Subsequently he excreted four condoms which contained the dangerous drugs which were the subject of the charge.
He readily admitted under caution that he was trafficking in heroin hydrochloride. He told the police officers that he had been paid $1,000 to do just that.
Subsequent to the initial admission he made, he was further interviewed, and told the police officers that the reason he became engaged in the conveyance of dangerous drugs into Hong Kong was because he was unemployed. He asked for the police officers to give him a chance.
The defendant, I am told, is 41 years of age. He is a divorced man and he has no children. He was educated to Form 2 level, and he was unemployed at the time of his arrest. He is, I am told, drug addicted.
Whilst he has an extensive criminal record, he has hitherto no convictions for any offence involving dangerous drugs, be it for the purpose of his own consumption or for trafficking.
The dangerous drugs that the defendant brought into Hong Kong on this occasion was a very substantial quantity. It is an Admitted Fact that the value on the street of these drugs was in excess of $97,000.
I have to consider the appropriate starting point for sentence after trial and what appropriate discount should be given to the defendant to reflect his plea of guilty. In the year 1990, the Court of Appeal in R v Lau Tak Ming and Others provided guidance to judges sentencing persons trafficking in dangerous drugs. That case is reported at [1990] 2 HKLR 370.
Having considered a number of earlier authorities and indeed the evidence of a number of expert witnesses, the Court of Appeal laid down guidance based on the quantity of the drugs trafficked. That guidance, with reference to this defendant, indicates that those trafficking in amounts of 50 to 200 grammes of heroin hydrochloride would face a sentence after trial of 8 to 12 years’ imprisonment.
In the circumstances of this defendant, bearing in mind the quantity of drugs involved, an appropriate starting point of 9 years and 9 months after trial is advised.
I have to consider in the circumstances whether that sentence should be further enhanced by reference to the fact that the defendant brought this heroin into Hong Kong from China. Throughout the course of a number of authorities in this jurisdiction, the Court of Appeal has consistently indicated that importing dangerous drugs into Hong Kong from another jurisdiction is a serious aggravating factor.
In HKSAR v Abbas [2009] 2 HKLRD 427, guidance has been provided where the amounts of drugs imported into Hong Kong are in excess of the guidelines provided for in Lau Tak Ming. There are, to my mind, no specific guidelines, with respect, other than those.
In the circumstances, I consider that enhancement of the defendant’s sentence by reason of the fact that he has imported these drugs into Hong Kong is called for. Given the quantities of drugs involved and by reference to the degree of enhancement recommended in Abbas, I believe that an enhancement from 9 years and 9 months to 10 years is called for.
The defendant is entitled to a full one-third discount from that starting point. That would result in a sentence of imprisonment of 6 years and 8 months.
There is nothing in the circumstances of the defendant or in the circumstances of the commission of the offence which would justify any further discount from the starting point which I have indicated.
In all of the circumstances, the sentence I will impose is therefore one of 6 years and 8 months’ imprisonment.