CRIMINAL CASE NO. 395 OF 2010
COURT: Baasanjav Tuvshinjargal and Lkhaijav Bayanmunkh, you have each been convicted on your own pleas of trafficking in very substantial quantities of heroin, which you swallowed before arriving in Hong Kong by air on the same flight from Kuala Lumpur on 20 April last year.
In your case, 1st defendant, the drugs were in the form of 71 capsules and comprised 707.14 grammes of a mixture containing 404.81 grammes of heroin hydrochloride and 64.92 grammes of monoacetylmorphine hydrochloride. Some idea of the value of this quantity of drugs can be gleaned from the fact that if they had been sold on the streets of Hong Kong they would have had a retail value of approximately HK$470,000.
In your case, 2nd defendant, the drugs were in the form of 100 capsules containing 990.90 grammes of a mixture containing 625.24 grammes of heroin hydrochloride and 104.02 grammes of monoacetylmorphine hydrochloride. If they had been sold on the streets of Hong Kong they would have had a retail value of approximately HK$660,000.
It was clear from the evidence that you were travelling in the company of two other men, the 3rd and 4th defendants in this case, who, like you, were holding Mongolian passports. Both of them, like you, had swallowed similar capsules containing heroin prior to arriving in Hong Kong. You were all stopped in the transit area of the airport from where you were about to take a ferry to the Mainland. It appears, therefore, that the ultimate destination of these drugs was the Mainland.
Bearing in mind the very large number of capsules you had each swallowed, neither of you can have been in any doubt that very serious consequences would follow if you were caught. I have been told by Mr Fan that you, the 1st defendant, had been promised a reward of US$2,500 for undertaking this trip and that you, 2nd defendant, say that you had been promised US$5,000. In these circumstances I assume you thought the financial rewards were worth taking the risk. As I said when I sentenced one of your co‑defendants, the 4th defendant, you were perhaps fortunate that you were caught with the drugs in Hong Kong rather than in Malaysia or the Mainland.
The 3rd and the 4th defendants who were travelling with you have already pleaded guilty and been sentenced. The narcotic content of the capsules they had swallowed was rather smaller than in your case, the 2nd defendant, but larger than in your case, the 1st defendant. The 3rd defendant swallowed 80 capsules and the narcotic content was 513.01 grammes. The sentencing judge adopted a starting point of 18 years 10 months, which included an enhancement of 12 months to reflect the international element of the offence. The 4th defendant had swallowed 90 capsules and the narcotic content of the drugs was 597.61 grammes. In sentencing the 4th defendant I adopted a starting point of 19½ years.
As with the other defendants, I approach sentence on the basis that you were simply couriers being used by others to deliver the drugs to the Mainland. I have borne in mind that each of you were charged separately and the prosecution have not alleged a joint enterprise between you.
You, the 1st defendant, had swallowed 71 capsules and the narcotic content was 469.73 grammes. The guideline starting point for those who traffic in between 400 and 600 grammes of heroin is 15 to 20 years’ imprisonment before any enhancement to reflect the international element. In your case, I am adopting a starting point of 16 years’ imprisonment, which I enhance by 12 months to reflect the international element, arriving at a final starting point of 17 years’ imprisonment.
You, the 2nd defendant, had swallowed 100 capsules and the narcotic content was 729.26 grammes. The guideline starting point for those who traffic in between 600 and 1,200 grammes of heroin before any enhancement to reflect the international element is 20 to 23 years. I am prepared to adopt a starting point at the bottom of that tariff band, namely 20 years, with an enhancement of 12 months to reflect the international element of your offence. The final starting point is, therefore, 21 years.
I have listened to all that Mr Fan has said on your behalves, including what he has said about your background and in your case, 2nd defendant, that since arriving in Hong Kong you have been suffering from some problems with your liver which are still under investigation. On the information now before me, the only real mitigating circumstance in this case has been your pleas of guilty and that justifies the usual discount of one-third.
So in the case of you, the 1st defendant, Baasanjav Tuvshinjargal, I pass a sentence of 11 years 4 months’ imprisonment. In the case of you, 2nd defendant, Lkhaijav Bayanmunkh, I pass a sentence of 14 years’ imprisonment.
Please refer to CACC320/2011 for the relevant appeal(s) to the Court of Appeal.