CRIMINAL CASE NO. 85 OF 2011
COURT: These are tragic cases to deal with because the defendant involved is invariably used by others higher up the chain to traffic in quantities which have devastating consequences for the defendant when caught.
I have no reason to doubt the mitigation put forward as to how you became involved in this offence and I note that, somewhat curiously, you told the Customs & Excise that you believed the drugs were cocaine when, in fact, they were heroin.
Nevertheless, you must have realised the seriousness of what you were doing, having been to such elaborate lengths to swallow these drugs to avoid detection, and you must have fully realised the risks involved in taking drugs into the mainland where the consequences would have been even more devastating than any sentence to be imposed here in Hong Kong, yet you were fully prepared to take that risk.
As Mr So correctly points out, the applicable tariff guidelines for this quantity of heroin - and both counsel accept that heroin hydrochloride and monoacetylmorphine hydrochloride are to be treated as the same for sentencing purposes - are 20 to 23 years’ imprisonment for quantities of 600 to 1,200 grammes, subject to enhancement of the sentence. In my judgment, I would be failing in my duty if I did not adhere to those guidelines which are applicable to anybody committing such a serious offence.
I have a measure of personal sympathy for your predicament, which predicament you now fully appreciate according to your letter to this court which I have read. But the courts must be resolute in their application of sentences, particularly to people who use Hong Kong as a convenient port of entry for large quantities of dangerous drugs. The fact that these drugs were going on to the mainland does not affect that resolution. Hong Kong is part of China and we owe it to the mainland, as with other countries, to apply our law consistently.
The appropriate starting point for this quantity of 1.07 kilograms of heroin narcotic is 22 years’ imprisonment, which I enhance by 2 years in accordance with the guidelines set out in Abdallah Anwar Abbas, Criminal Appeal 304/2008 at paragraph 43, for the international element of bringing these drugs across our border from another country. The overall starting point, therefore, is 24 years’ imprisonment.
You have, as Mr So points out, pleaded guilty at the first available opportunity, namely, the Magistrates Court. Despite the, I would have thought, insurmountable difficulties of making any defence, having swallowed these drugs to avoid detection, I shall give you a full one-third discount which reduces the sentence to 16 years’ imprisonment.
You are a mature man of 38 with a hitherto clear record so far as Hong Kong and, I presume, Mainland China is concerned. Normally, that counts for little with offences of this gravity, but I consider I can give you a small discount, bearing in mind that you have also all along confessed your guilt and played fair with the system by pleading guilty at the first available opportunity. I shall give you a 3 months’ discount from 16 years, making 15 years and 9 months’ imprisonment.
So defendant, would you please stand up. You are found guilty on your own plea and on admission of these facts. You will go to prison for 15 years and 9 months.