CRIMINAL CASE NO. 312 OF 2011
The offence occurred when, on 18 December 2010, at about 11 pm, the defendant was observed by police, sitting in the driver’s seat of private car NW468 outside Heng Cheong House, Fu Heng Estate, Tai Po. To the police officers, the defendant appeared to be looking for something and acting suspiciously.
They approached the car and, in response to their inquiry, the defendant claimed that he was waiting for friends. One of the police officers checked the compartment of the car and found a red plastic bag on the front passenger seat. Suddenly, the defendant fled. The police officers gave chase, apprehended the defendant and brought him back to the car.
The red plastic bag on the front passenger seat contained 12 plastic bags containing 207.67 grammes of cocaine and one cigarette box containing a plastic bag containing 8.79 grammes of cocaine. A paper bag on the front seat contained a plastic bottle containing 128 millilitres of a liquid containing traces of cocaine, four mobile phones and an electronic scale.
When arrested and cautioned, the accused said that the cocaine was for his own consumption but now admits that he was trafficking in the cocaine.
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 defendant convicted of a drug trafficking offence. The first is that, for sentencing purposes, cocaine is to be treated as the same as heroin. Secondly, the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained. Thus the quantity for which this defendant must be sentenced is 216.46 grammes. Thirdly, the sentencing ranges for trafficking in heroin and cocaine are to be taken from the guidelines laid down by the Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There, the Court of Appeal said that for amounts of between 200 to 400 grammes, the sentencing range should be 12 to 15 years’ imprisonment.
The existence of these sentencing tariffs leaves little room for mitigation but, notwithstanding this, the sentencing tariffs do play a very important role for two main reasons. Firstly, they lead to consistency in sentencing. As was said by the Court of Appeal in HKSAR v Manalo,[2001] 1 HKLRD 557 at 560 G-H:
“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.”
Secondly, they help to deter those who might otherwise be tempted by what they perceive as an easy and low-risk means to substantial profits. In Secretary for Justice v Chan Ka Wah[2005] 4 HKLR 904 at 908, paragraph 20 the Court of Appeal said:
“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, it said:
“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.”
I can see no such exceptional circumstances present in the case of this defendant and, therefore, the sentencing band, as his counsel has indicated, is 12 to 15 years’ imprisonment.
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, of course, any previous involvement he may have had in drug offences - see HKSAR v Abdallah.
Certain matters, the Court of Appeal has said, cannot be treated as mitigation. They are clear record, youth, the fact that a defendant is a foreign national, which does not apply here, the fact that a defendant is financially impoverished.
Here, the defendant is a person whom his counsel has described as fitting into the typical run-of-the-mill case of a person already addicted to drugs turning to trafficking as a means of earning income to feed his addiction. His criminal record bears out that description. He has convictions for possession of dangerious drugs dating back to 2007, from which time, his counsel says, he has been addicted. He has a significant offence of trafficking in dangerous drugs which I am told by his counsel was ketamine and to which he pleaded guilty and received a sentence of 41 months. His counsel says that he is addicted to both ketamine and cocaine.
Notwithstanding his criminal record, his counsel pleads for a lower starting point within the 12 to 15 year band, not only to reflect that the quantity of drugs is just above the amount relevant to this band, but also because of the defendant’s youth and in order to give him a second chance -to complete his sentence as quickly as possible and still enjoy some time of his young adult life out of gaol and free from drugs.
To the defendant I would say this. What happiness, what pleasure, what meaningful enjoyment you get from the remainder of your youthful adult life is entirely in your hands. Though the sentence that I impose must necessarily be somewhat lengthy, you will have the opportunity, as you well know, in gaol to get a further reduction should you conduct yourself in accordance with prison discipline. It is clear to me that the only opportunity you will have to lead an enjoyable life is if you can rid yourself from your drug addiction. Prison will help you to do that if you take a positive response to the opportunity. That is entirely in your hands.
I am disturbed by how young you are and how much time of your youth has been spent in addiction to drugs and in prison. I am going to give you the chance that your counsel has pleaded for you. As I have already explained, the discretion I have is rather limited and I cannot depart from the band that the Court of Appeal has said is relevant to your quantity of drugs. But it is for me to determine where I start within that band. I could start much higher than 12 years because you have shown a past involvement in drug trafficking, but 12 years is itself a significant sentence and so I will adopt that as my starting point.
As your counsel will have explained to you, you are entitled to a third discount of that sentence in recognition of your plea of guilty. That brings your sentence down to 8 years’ imprisonment. Where there is other exceptional mitigation, the court is entitled to discount it further but there is nothing in your background to justify a further discount of the sentence.
I therefore sentence you to 8 years’ imprisonment.