CRIMINAL CASE NO. 148 OF 2011
COURT: On 21 December 2010 you were arrested when arriving in Hong Kong from the Mainland through the Lok Ma Chau Control Point. A diligent and observant senior Customs officer thought you were acting suspiciously and duly informed his colleagues in the Customs Arrival Hall who caused a check to be made on your clothing and belongings.
You were subsequently discovered to have four Ziploc bags containing 728.45 grammes of ketamine narcotic concealed and held in place by a girdle or corset strapped around your waist. The street value of the drugs found on you was just under HK$123,810.
On the first day of trial you pleaded not guilty and I proceeded to hear a voir dire on the admissibility of a notebook entry and a cautioned statement. At the outset of the second day, just before cross-examination of PW3 was to commence, you changed your plea to one of guilty. One of the issues I shall have to decide is whether or not you are entitled to a one-third discount for your plea, as advocated by your counsel, or whether you should receive a lesser discount bearing in mind the stage of the trial at which your plea came. I shall address that issue in a moment.
The appropriate tariff guideline for the quantity of ketamine in which you were trafficking is, after trial, on the authority of Hii Siew Cheng [2009] 1 HKLRD 1 at page 30, 12 to 14 years’ imprisonment. However, there is also in your case the question of enhancing the sentence by virtue of the fact that you were crossing over the border into Hong Kong with these drugs.
In the case of Abdallah Anwar Abbas CACC 304/2008, the Court of Appeal held that where for example an international element is involved, as it is when drugs are brought into this territory from outside it, the sentence should be enhanced. At paragraph 30 of the judgment, the court made clear that such international element will include the trafficking of drugs across the border with the Mainland. The court considered that for quantities of above 1 kilogram of heroin hydrochloride, that enhancement should not be less than 2 years’ imprisonment in addition, of course, to the appropriate tariff for the quantity itself.
However, it is fair to point out, and I make clear, that I am not here dealing with a kilogram of heroin where the tariff starts at 20 years’ imprisonment for 600 grammes, but with 728.45 grammes of ketamine, the tariff for which is 12 to 14 years. Obviously, any enhancement for the international element must be commensurately less.
I take into account in assessing the overall starting point what I have heard about you and what led you to be involved in this type of offence. I am inclined to accept the view advocated by your counsel, Mr Leung, which is to some extent supported by the letters I have received on your behalf, that you are a simple woman who was used and prevailed upon by others to do something you would not normally have done.
On the other hand, the message has got to go out loud and clear that people who are tempted to use their frequent trips across the border to traffic in a dangerous drug, disguising their drugs on and sometimes in their person, will be dealt with severely when they are caught. In my judgment, bearing all the circumstances in mind and how you came to be involved in this offence, the appropriate starting point for the quantity alone in this particular case would be 12½ years’ imprisonment, which I enhance by 6 months for the international element of bringing these drugs from the Mainland across the border into Hong Kong.
Accordingly, the overall starting point for sentence which would have been the sentence imposed upon you after trial, would be one of 13 years’ imprisonment.
The next issue is the extent of the discount which I can properly give you in the light of your plea of guilty on the second day of the voir dire. It is true to say that a whole day was spent in receiving the evidence of various Customs officers before you decided to plead guilty. To that extent, your plea was not rendered at the first available opportunity. On the other hand, the evidence had not yet progressed to the cautioned statement itself and was confined to the circumstances of the making of the notebook entry.
Moreover, the objections to admissibility were very limited; your counsel making it clear at the pre-trial review that the complaint was more to do with the Customs officer concerned misunderstanding and thereby mis‑recording what you were saying in her notebook rather than a wholesale attack on the conduct and propriety of prosecution witnesses. Indeed, it seems to me that Mr Leung probably achieved his objective in that regard when the officer responsible for the notebook accepted that it was not a verbatim account and there did seem a certain amount of confusion as to what exactly was said. That is not to say that I would have ruled the documents inadmissible.
Accuracy is a different issue from voluntariness and matters had not proceeded far enough for me to judge admissibility. Nevertheless, it would be difficult to hold, in the light of the answers Mr Leung received in cross-examination, that embarking on the voir dire in the limited way I have described, was an unjustified waste of time. In all the circumstances, and not without some hesitation, I have decided to give you a full one-third discount from the starting point I have identified.
I might also say that if one is prepared to enhance a sentence for the reasons I have given, one might be more readily persuaded to discount it when the argument is evenly balanced. Allowing a one-third discount from the starting point of 13 years produces a sentence of 8 years and 8 months’ imprisonment.
I have a measure of personal sympathy for the loss of your husband and the father of your young daughter some four days after your arrest last December. However, personal sympathy must give way to the need for a resolute message to be sent out to people who are similarly tempted to traffic in dangerous drugs and any sympathy for your unhappy predicament must be tempered by remembering the harm and destruction which drugs bring to individuals and families who are the end users and victims of these offences.
You have a clear criminal record. It has been said by the courts that a clear record counts for little in drugs offences of this seriousness. Nevertheless, I bear in mind that you are 38 years of age and have not been involved in any offences before, either here or on the Mainland. I am prepared to give you a very slight recognition of that factor in the context of the type of person I am prepared to accept you are and how you came to be involved in this offence. I shall give you a further reduction of 2 months’ imprisonment.
Accordingly, the sentence of the court is that you shall serve a sentence in respect of this offence of 8½ years’ imprisonment.
Please refer to CACC333/2011 for the relevant appeal(s) to the Court of Appeal.