CRIMINAL CASE NO. 422 OF 2010
COURT: You have been convicted of a very serious offence of trafficking in a dangerous drug, namely 6.91 kilograms of a powder containing 4.75 kilograms of cocaine. You were intercepted by officers of the Customs and Excise Department at Hong Kong International Airport after arriving on a flight from Doha. In your luggage were two large metal bolts which were hollow and when Customs officers drilled into these bolts they found that cocaine was concealed within them.
In different cases, the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a prisoner convicted of a drug-trafficking offence. Your counsel will have explained the effect of these to you, but it is only right that I set them out so that you can understand how I have calculated your sentence.
The first principle is that for sentencing purposes cocaine is to be treated as the same of heroin. Secondly, the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the powder in which it is contained. Thus for you the sentence is in respect of 4.75 kilograms.
Thirdly, the Court of Appeal has said that the sentencing ranges for trafficking in heroin and cocaine are to be taken from guidelines it laid down in a case by the name of HKSAR v Abdallah [2009]2 HKLRD 437 to which your counsel has referred. There, the Court of Appeal said that for amounts of between 4 kilos and 15 kilos the sentencing range should be 26 to 30 years’ imprisonment.
However, the Court of Appeal went on to add that should there be present an aggravating factor, then the starting point should be increased. It listed a number of aggravating factors, one of which is that an international element is involved in the commission of the offence. When drugs are transported across borders, then an international element is involved and, of course, this is what happened in this case. The court said that when the amount of drugs being trafficked was above 1 kilogram, the enhancement should be not less than 2 years, but 2 years now appears to have become the norm, see HKSAR v Lau Chun Sing [2011]2 HKLRD 551.
The court has explained why these strict sentencing guidelines should be applied. Firstly, they lead to consistency in sentencing so that all persons involved in drug-trafficking receive around the same level of sentence. The Court of Appeal said in HKSAR v Manalo [2001]1 HKLRD 557:
“The guidelines, whilst of course not straitjackets, are there to provide and maintain consistency of sentence between all offenders who traffic in dangerous drugs. It is important for courts to avoid distinctions which will often be irrational or speculative being drawn between drug-traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.”
The second reason for these strict sentences is because they help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits. The Court of Appeal said in Secretary for Justice v Chan Ka Wah [2005]4 HKLR 904 at page 908, paragraph 20:
“It is important to follow the guidelines so that people who engage in such evil business can be assured of the length of the inevitable custodial sentence and hopefully such an approach will be a deterrent.”
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines and, in my view, no such circumstances are present in this case. Nevertheless, I still have some sentencing discretion. In the Chan Ka Wah case, the Court of Appeal said at page 908, paragraph 22:
“Whilst the sentencing judge may retain some degree of discretion and other factors may be taken into account to determine an appropriate sentence, the sentence imposed should normally be within the suggested band.”
The reasons why the Hong Kong courts have adopted such a strong stance in respect of drug-trafficking are two-fold: firstly, because the trafficking in drugs is such an evil trade. The harm these drugs cause to the societies in which they are consumed is enormous and there is the further harm, as you now feel, to the accused, their families and societies from which they come as they are often from impoverished families in third world countries. The drug trade is all about exploitation, exploitation of the consumers and exploitation of the couriers and the low‑ranking people involved in it.
Secondly, because the drug trade is international, Hong Kong must do all it can to support the efforts of all countries in combating it. For some countries, punishment will involve the imposition of the death penalty and you are fortunate, indeed, that Hong Kong is not such a country. Nevertheless Hong Kong courts must show to the international community that in its punishment of drug-traffickers it is standing side-by-side with other countries in its efforts to deter persons from engaging in this trade.
I do not accept your explanation that you did not realise the seriousness of what you were doing, but I do accept that you come from a disadvantaged background and have been exploited by others. I accept that you would only have derived a small reward for your role and that this was the first occasion in which you engaged in drug-trafficking.
But much of what has been said by your counsel cannot be used to discount further the appropriate sentence. This is again because the Court of Appeal has made it clear that a clear record, the fact that a defendant is a foreign national for whom incarceration a long way from home would be more onerous than for a Hong Kong resident should not have any bearing on sentence, see HKSAR v Bugaay [2008]6 HKC 326. Nor will financial need arising from an impoverished and disadvantaged background be a basis for discounting the sentence, see HKSAR v Somphaksorn Lamyai & Anor [2009]1 HKC 437.
The sentencing ranges that I have referred to are indeed a range and I believe that I can reflect the mitigation that has been advanced by your counsel in the starting point that I adopt within these ranges without departing from them.
In the present case, as your counsel has pointed out, the quantity of drugs is within the 26 to 30 years’ imprisonment range, as it covers trafficking in 4 to 15 kilograms. In view of the mitigation that has been advanced and as the quantity is just above 4 kilograms, I adopt 26 years as my starting point. Because there is present the aggravating factor of an international element, I enhance that sentence by 2 years. The starting point for sentence then becomes 28 years. I discount that sentence by one-third to allow for the plea of guilty which brings a resulting sentence of 18 years and 6 months.
Your counsel has said everything that could be said for you and, despite her eloquence, I cannot find anything further in mitigation to justify any further discount of the sentence. For this offence of trafficking in a dangerous drug I sentence you to 18 years and 6 months’ imprisonment.