CRIMINAL CASE NO. 258 OF 2011
COURT: Miss Kessy, you have pleaded guilty to trafficking in a dangerous drug, namely 1.17 kilograms of a mixture containing 0.39 of a kilogram of heroin hydrochloride and 0.25 kilogram of monoacetylmorphine hydrochloride.
You were intercepted by officers of the Customs & Excise Department at Hong Kong International Airport after arriving on a flight from Doha. An X-ray confirmed the presence of foreign objects in your body.
You were then arrested and cautioned, and in response, admitted that the foreign objects were drugs, and that you had been paid US$3,000 to transport them in your body.
You subsequently discharged a total of 100 packets, and the estimated retail value of these drugs was HK$850,590.
You had been told that someone would be waiting for you on your arrival in Hong Kong.
You have no doubt been told by your counsel that 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 defendant convicted of a drug‑trafficking offence. The first is that the sentencing range for heroin is to be determined by the quantity of the narcotic being trafficked, not the powder in which it is contained.
Thus the quantity for which I am sentencing you is 0.64 of a kilogram - that is, 640 grammes.
Secondly, the sentencing range for trafficking for this amount is 20 to 23 years, and that is laid down in two cases of the Court of Appeal.
Thirdly, the Court of Appeal has said in one of its cases that should there be present an aggravating factor, then the starting point within the 20 to 23 year range 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 your 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’ imprisonment, and 2 years appears to have become the norm for larger amounts of heroin, but for smaller quantities such as the quantity in which you trafficked, the amount of the increase is within my discretion.
As your counsel has pointed out, the existence of the sentencing principles and tariffs leave little room for her to mitigate on behalf of you, but you should understand that there are good reasons for having these sentencing tariffs.
Firstly, they lead to consistency in sentencing. This is important, because the tragedy is that there are many people like yourself who are tempted into trafficking in drugs. Like yourself, they often come from difficult if not impoverished backgrounds, and they usually have many people dependent upon them for financial support. Their own personal difficulties are taken advantage of by others who hope to benefit hugely from being able to tempt these others into transporting drugs for them. So the purpose of these sentencing guidelines is to let everyone know that if you are caught transporting drugs, you will all be dealt with in a similarly harsh manner.
Secondly, the guidelines are intended to dissuade people from being tempted, to make them realise the risks to which they are exposing themselves; and because drug trafficking is an international crime, Hong Kong as a government is obliged to do what it can to protect the interests of other countries in which these drugs might finally be distributed.
Nevertheless, despite the limitations within which I must operate in sentencing you, there is some discretion that I have. However, the fact that you have a clear record and the fact that you are a foreign national to whom prison will be more difficult than for a Hong Kong resident are not matters that I can take into account; nor can I take into account the fact that you come from a difficult, if not impoverished, background, and that you were in financial need.
However, I do accept that you are remorseful, and I do accept that in a very real sense you are also a victim of the drug trade. You were naïve and you were tempted by the opportunity to obtain what for you was a large sum of money. I accept that you would have used these moneys to have supported your extended family, and that now you must face the terrible reality that your son is left without his mother and your nephews and nieces without their aunt.
In the present case, the quantity of drugs in which you trafficked brings you within the 20 to 23 years’ imprisonment band, as it covers trafficking in 640 grammes. As the quantity is just above 600 grammes, I shall adopt 20 years as the starting point for my sentence. However, because there is present the aggravating factor of an international element, I must enhance that sentence. But given your background and your disadvantaged circumstances, and the fact that you were as much a victim and taken advantage of by others, I enhance that sentence by only 6 months.
That creates a final sentence of 20 years and 6 months, which I then discount by one-third to allow for your plea of guilty.
The resulting sentence is 13 years and 6 months, and I have looked very carefully at everything that Miss Crebbin has said to see whether there is any justification for me to discount that sentence further. Unfortunately, I can find nothing in the mitigation that would justify a further discount, and so you are sentenced to serve a period of 13 years 6 months’ imprisonment.
Please refer to CACC448/2011 for the relevant appeal(s) to the Court of Appeal.