CRIMINAL CASE NO. 70 OF 2011
She was intercepted by officers of the Customs & Excise Department at Hong Kong International Airport after arriving on a flight from Johannesburg. In her luggage was a portable cooler box in which the drugs were concealed.
In a number of different cases, the Hong Kong Court of Appeal has set out the principles and sentencing guidelines for judges to follow when sentencing a defendant convicted of a drug trafficking offence. The first is that the sentencing ranges for trafficking in “Ice” are to be taken from the guidelines laid down by the Court of Appeal in Attorney General v Ching Kwok Hung [1991] 2 HKLRD 125. There, the Court of Appeal said that where the amount of “Ice” being trafficked is above 600 grammes, the sentence should range from 18 years upwards.
In the present case, the quantity in which this defendant trafficked was 1,962.05 grammes of “Ice” and so this defendant is placed in the 18 years and upwards band for sentencing purposes.
The second is that in HKSAR v Abdallah [2009] 2 HKLRD 437, the Court of Appeal said that where there is present an aggravating factor, then the starting point should be enhanced. 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 is above 1 kilogram, the enhancement should not be less than 2 years’ imprisonment. Two years appears to have now become the norm, see HKSAR v Lau Chun Sing[2011] 2 HKLRD 551.
The existence of these sentencing tariffs leaves little room for mitigation but, notwithstanding this, the sentencing tariffs play a very important role for two main reasons. The first is that they lead to consistency in sentencing. As Stuart-Moore J said in HKSAR v Manalo [2001] 1 HKLRD 557 at page 560 G-H:
“The guidelines, whilst of course not straitjackets, are there to provide and maintain consistency of sentencing 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 is that they help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits.
As the Court of Appeal said in Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 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. In the Chan Ka Wah case, the Court of Appeal concluded:
“Whilst a 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 bands’.”
No such circumstances are present in this case. That means that I am constrained to sentence in accordance with the 600 grammes above band which is the 18 years upward band. Nevertheless, I still have some sentencing discretion. I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender and any previous involvement the offender may have had in drug offences - see HKSAR v Abdallah.
But there are certain matters that the Court of Appeal has also said cannot be treated as mitigation. They are a clear record, youth, other than extreme youth, and the fact that the defendant is a foreign national for whom incarceration a long way from home would be more onerous than for a Hong Kong resident - 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 defendant is a Thai national and she is just a few months short of her 31st birthday. She comes from a disadvantaged background. Her parents died when she was young and she was brought up by her paternal grandmother and her aunt. She was educated to secondary school level only and, after leaving school, started working in department stores and other similar establishments.
At the time of this offence, she was working as a waitress in a nightclub in Pattaya and it was there that she met the man she calls Emmy and who appears to have been the person responsible for her present situation. Before meeting Emmy, she had been in a relationship with a man by whom she had a daughter now aged 8 and a son now aged 3. However, that relationship did not last and the defendant became a single mother. I have no doubt that the defendant found life financially very difficult and in that situation, the large amounts of money that can be earned from the drug trade must have seemed particularly alluring to her.
I also have no doubt that she was being exploited by Emmy and would not necessarily have enjoyed the large profits that were expected to be earned from the sale of this “Ice”. Nevertheless, as sympathetic as I am to the defendant’s plight, most of what I have just described by way of her background does not mitigate the seriousness of her offence.
The defendant stand up. In the present case, as the quantity of drugs is just under 200 kilograms, I adopt 24 years as my starting point for sentence. Because there is present the aggravating factor of an international element, I enhance that sentence by 2 years. That final sentence then becomes 26 years’ imprisonment and I turn to what your counsel has said to me to see whether I can discount that to allow for mitigating matters.
As your counsel has indicated, since your arrest, you have been speaking to Thai law enforcement officers and assisting them with their inquiries, but this assistance only came a month before trial and the delay in providing that assistance has two effects. Firstly, it calls into question the genuineness of your remorse and secondly it has also resulted in the information that you have provided being of no value. Nevertheless, I shall in this case give you the benefit of the doubt and treat your assistance as having been genuinely motivated.
Also, the court has, as one of its sentencing goals, the desire to encourage other offenders to provide assistance to law enforcement authorities but that assistance must be given at the earliest possible time and usually must result in valuable information being provided. But in order to reflect your attempt to provide assistance, I will allow a discount of 1 year on your sentence. The resulting sentence then becomes 25 years.
I have considered everything else that your counsel has said on your behalf but I can find nothing in it to justify any further reduction of sentence. I therefore sentence you to 25 years in prison.
Please refer to CACC443/2011 for the relevant appeal(s) to the Court of Appeal.