CRIMINAL CASE NO. 265 OF 2011
COURT: 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.
First, 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 these defendants must be sentenced is 516.86 grams for Mrs Masham and 659.33 grams for Mr Kharim.
Secondly, the sentencing ranges for trafficking in heroin are to be taken from the guidelines laid down by the Court of Appeal in R v Lau Tak Ming [1990] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. In these cases the Court of Appeal said that for amounts of between 400 to 600 grams the sentencing range should be 15 to 20 years’ imprisonment and for amounts between 600 to 1200 grams the sentencing range should be 20 to 23 years’ imprisonment.
However, it went on to add that should there be 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 both these cases.
The court said that when the amount of drugs being trafficked was above 1 kilogram the enhancement should not be less than 2 years’ imprisonment. Two years appears to have now become the norm for the larger quantities of narcotic (see HKSAR v Lau Chun Sing [2011] 2 HKLRD 551) but for amounts below 1 kilogram the amount of enhancement is left to my discretion.
These sentencing tariffs leave little room for mitigation but notwithstanding this they play a very important role for two main reasons.
Firstly, they lead to consistency in sentencing and avoid distinctions being drawn between drug traffickers based upon their role in the drug trafficking. Whatever their role their sentence will, generally, be the same (see HKSAR v Manalo [2001] 1 HKLRD 557 at page 60G-H).
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 (see Secretary for Justice v Chan Ka Wah [2005] 4 HKLR 904 at 908, paragraph 20).
The Court of Appeal has made it clear that it requires exceptional circumstances to justify a departure from the guidelines and that whilst the sentencing judge may retain some degree of discretion the sentence imposed should normally be within the suggested bands (see the Chan Ka Wah case at page 908, paragraph 22).
As to the mitigation, it has been clearly stated by the Court of Appeal that 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, 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).
There is nothing that has been said by either counsel in mitigation that would constitute exceptional circumstances for their clients. But much argument has taken place on the actual nature of the monoacetylmorphine hydrochloride (“MAM”) and the effect it would have upon users of it.
It has now been agreed that there are two types of MAM, what I shall call “3‑MAM” and “6‑MAM”. 3‑MAM is regarded as of much lower potency and is in fact described as inactive. 6‑MAM has the same potency as heroin hydrochloride and further testing by the Government Chemist has revealed the form of MAM being trafficked by both defendants as being 6‑MAM.
The original mitigation of both Mr Laskey and Mr Mitchell was predicated on the possibility of being able to persuade this court that the MAM should not be aggregated with the heroin and that it should either be ignored or, if punished, should be treated differently from heroin hydrochloride and should not be taken into account when determining into which band each defendant fell.
I have rejected that submission but that submission only became possible because the Government Chemist had not in the past distinguished between 3‑MAM and 6‑MAM when certifying the nature of the substance that he had examined. To describe this as unsatisfactory is an understatement and I am pleased to be informed that henceforth this will end and the type of MAM will be more precisely identified.
As a result of the Government Chemist’s unsatisfactory practice counsel and their clients have been misled into believing that they had a reasonable prospect in convincing this court of their arguments in relation to how this court should treat the MAM. In this respect, I note the judgment of Madam Beeson J in the case counsel referred me to.
Though neither they nor their clients could say that they had a settled expectation of success in respect of their argument they did have their hopes falsely raised by the Government Chemist’s lax practice. This I regard as a strong item of mitigation for both defendants and I have taken it into account both when determining where within the relevant band I should adopt as a starting point and the amount by which I should enhance that starting point.
I shall now deal with each defendant.
For Deborah James Masham: this defendant has pleaded guilty to trafficking in a dangerous drug, namely, 1,449.17 grams of a mixture containing 394.67 grams of heroin hydrochloride and 122.19 grams of monoacetylmorphine hydrochloride making a total quantity of narcotic of 516.86 grams.
On 12 January 2011 this defendant was intercepted by officers of the Customs and Excise Department at Hong Kong International Airport after arriving on a flight from Tanzania via Dubai. Customs officers conducted a search of her luggage and her person. Inside the underpants that the defendant was wearing 11 pellets of drugs were found. The defendant was then taken to Queen Elizabeth Hospital and between 12 and 16 January she discharged a total of 89 pellets.
In her record of interview the defendant admitted that she knew the pellets contained drugs but not the type of drug and said that the person who gave them to her had promised she would be paid US$10,000 on delivery. The estimated retail value of the drugs in Hong Kong is $1,053,546.59 as at January 2011.
In the present case the quantity of drugs is within the 15 to 20 years’ imprisonment band as it covers trafficking in 400 to 600 grams. As the quantity is just over 500 grams I adopt 16 years as my starting point after taking into account all the mitigation advanced by Mr Laskey and the particular mitigation in relation to the argument over the credit that should be given for the MAM.
Because there is present the aggravating factor of an international element I enhance that sentence by 6 months. The starting sentence then becomes 16 years 6 months. I discount this sentence by one‑third to allow for the plea of guilty. The resulting sentence is 11 years and that is the sentence of the court.
For Mr Omari Mohamed Kharim: the defendant, who is a national of Tanzania, has pleaded guilty to trafficking in a dangerous drug, namely, 1,388.45 grams of a mixture containing 492.82 grams of heroin hydrochloride and 166.51 grams of monoacetylmorphine hydrochloride, making a total quantity of narcotic of 659.33 grams.
On 7 December 2010 the defendant was intercepted by officers of the Customs and Excise Department at Hong Kong International Airport after arriving on a flight from Tanzania via Dubai. He was suspected of transporting drugs within his body and so he was escorted to hospital for medical examination. An X‑ray revealed foreign objects within his body. Between 8 and 13 December the defendant discharged a total of 109 pellets containing the heroin. The estimated retail value of these drugs in Hong Kong is $974,692.
The defendant told the Customs and Excise officers that he expected to be paid for transporting the drugs but did not know how much he would receive.
In the present case the quantity of drugs is within the 20 to 23 years’ imprisonment band as it covers trafficking between 600 and 1,200 grams. As the quantity is just above 600 grams and taking into account the argument that had been advanced in respect of the MAM and the other mitigation by Mr Mitchell I adopt 20 years as my starting point.
Because there is present the aggravating factor of an international element I enhance that sentence by 6 months. The starting sentence then becomes 20 years 6 months. I discount that sentence by one‑third to allow for the plea of guilty. The resulting sentence is 13 years 8 months and that is the sentence of the court.