CRIMINAL CASE NO. 161 OF 2011
COURT: The defendant has been convicted of unlawfully trafficking in dangerous drugs, namely cocaine and methamphetamine hydrochloride. The quantity of drugs was 23.70 grammes of a solid containing 19.33 grammes of cocaine and 13.47 grammes of a crystalline solid containing 13.15 grammes of methamphetamine hydrochloride, which I shall refer to as "Ice".
The defendant was born on 24 August 1976, making her now 35 years of age. She has been in trouble with the law as a result of her association with dangerous drugs from the age of 19, when she was convicted of possession of dangerous drugs and sentenced to DATC. Some 11 months later, she was back before the court for possession of dangerous drugs and was again sent to DATC.
Unfortunately, these experiences with the criminal justice system did not deter her from continuing to use drugs and, 14 months later, she was again convicted of possession of dangerous drugs and this time she was sentenced to 6 months’ imprisonment, suspended for 2 years. Twenty-six months after this, she was convicted in the High Court of trafficking in dangerous drugs and sentenced to 4 years’ imprisonment. In 2004, she was convicted of possession of dangerous drugs and placed on probation for 18 months.
On 14 April 2008, she was convicted for a second time of trafficking in dangerous drugs and was sentenced by the District Court to 2 years 8 months’ imprisonment. She was discharged from prison for this sentence on 2 December 2009. Then, just 13 months later, she was arrested for the current offence for which she must now be sentenced.
Because of my concern at the defendant’s past offending, I acceded to the request of her lawyer that I obtain a background report on her. I hoped that this would help me to better understand how the defendant became involved in drugs and why she progressed to becoming a drug trafficker.
The background report reveals that the defendant comes from an unhappy family background. Her parents divorced when she was only 7 years of age and she was placed in the custody of her father. She did not get on well with her father and left home at age 18, after which she did not have further contact with him.
The defendant has only form 2 education. Around the time she was in form 1, she became rebellious and started mixing with undesirable persons. She started taking drugs at age 17 and dropped out of school without completing form 3. In the time since then, she has had little work experience and apparently has received financial support from the government and from the various men with whom she was romantically involved. She has six children from five relationships and these children currently range from 1 to 9 years of age. It appears as though the trafficking was used to fund her addiction which the defendant says she is now determined to overcome.
Amongst all this gloom, the one spark of hope is that the defendant continues to enjoy the love and support of her mother and I am encouraged to see that person in court here today. The mother feels guilty for not having provided a better family environment for her daughter’s upbringing and promises to do her best to help her to rehabilitate herself.
I can only hope that the defendant’s desire to reform is a genuine, long-lasting one and that her mother fulfils her promise to stand by her. Perhaps this will then end the sad progression from drug addiction to drug trafficking which has ruined her youth. However, that is a matter entirely in her own hands.
I turn now to the drugs for whose trafficking the defendant must now be sentenced. 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 19.33 grammes of cocaine and 13.15 grammes of "Ice".
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 & Ors [1992] HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. There, the Court of Appeal said that for amounts of between 10 to 50 grammes, the sentencing range should be 5 to 8 years’ imprisonment.
Fourthly, 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 HKLR 125. There, the Court of Appeal said that for amounts between 10 and 70 grammes, the sentencing range should be 7 to 10 years’ imprisonment.
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. Firstly, they lead to consistency in sentencing and avoid distinctions being drawn between drug traffickers based upon the nature of their trafficking, whether they be couriers, storekeepers or play some other role. Whatever the role played by the trafficker, the sentence will generally be the same (see HKSAR v Manalo [2001] 1 HKLRD 557 at page 560G to 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 a 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). No such exceptional circumstances are present in this case.
However, a strict application of the sentencing tariffs is not possible when sentencing an offender for trafficking in more than one dangerous drug. In a number of cases, the Court of Appeal has recommended the course that trial judges should adopt when sentencing in these circumstances. There are two different methods of proceeding referred to as ‘the individual approach’ and ‘the combined approach’ and which approach should be adopted depends upon the circumstances of each case.
Where the drugs are quite different in quantity and potency, the individual approach is the preferred one (see HKSAR v Leung Chun Pong [2009] 6 HKC 272 and HKSAR v Ko Ka Hing [2009] 4 HKLRD 856). The individual approach involves fixing separate penalties for each drug in accordance with the relevant tariff and then adjusting upwards the more serious penalty to take account of the trafficking in the other drug.
However, what has to be avoided is a simple mathematical addition of the sentences relevant for each quantity of dangerous drugs as that would result in a disproportionate sentence that offended the totality principle (see HKSAR v Yip Wai Yin [2004] 3 HKC 367).
Under the combined approach, the total narcotic is 32.48 grammes which would attract a sentence of approximately 8 years’ imprisonment under the "Ice" guidelines and approximately 7 years under the cocaine guidelines.
In my view, the individual approach best suits the present case and that is the one I adopt, though I do not believe that, in the circumstances of this case, it results in a sentence any different from that which would have resulted had the combined approach been used.
In identifying appropriate penalties for each dangerous drug and then assessing the appropriate starting point, I cannot ignore the defendant’s criminal record. Her past offending reveals a progression to drug trafficking and a failure to be deterred by the criminal justice process from re-offending. This failure to be deterred, this persistent re-offending and this progression to more serious drug trafficking constitutes an aggravating factor that would normally justify the adoption of a higher starting point (see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830).
However, in view of what I now know of the defendant through the background report and in view of the expressed remorse and the support promised by her parent whom, as I have mentioned, is present here in court today to lend substance to that promise of support, I am minded to give her one last chance.
For the cocaine, I fix a punishment of 6 years and for the "Ice", a punishment of 7 years. This would make a total of 13 years’ imprisonment and would be a disproportionate sentence for the culpability of this defendant’s drug trafficking. In my view, the appropriate course is to make an upwards adjustment of the "Ice" sentence of 7 years’ imprisonment in order to reflect the quantity of cocaine in which this defendant was also trafficking.
I believe that in the circumstances of the present case, the correct totality that satisfies the needs of deterrence and denunciation and also allows for the rehabilitation for the offender would have been one of 8 years’ imprisonment.
However, there is one other factor that I must take into account. The defendant claims in mitigation that part of the drugs were intended for her own consumption. Given that it is not disputed she is an addict and in light of her criminal record, I have no difficulty in accepting this claim. That being so, the defendant is entitled to some discount (see HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561).
But the Court of Appeal has emphasised in these cases that the discount should not be substantial as there is also the latent risk that the drugs intended for self-consumption may be trafficked. In the present case, I believe it is clear that the defendant was a drug addict with a serious addiction problem. I believe that an appropriate discount to reflect her claim in mitigation that a portion of the drugs were intended for her own consumption is 12 months.
The defendant is therefore sentenced to 7 years’ imprisonment.
Miss Tai, would you stand up. You have heard the sentence of the court is 7 years’ imprisonment. What you must understand is that this is, in fact, a considerably lenient penalty given your criminal record and the drugs in which you were trafficking. I have extended this leniency to you in order to encourage you to pursue your goal of rehabilitation. I appreciate that that is a goal in which you will need support and assistance from your family but, ultimately, it will be up to you to ensure that goal is achieved.
You will be well aware that once you commence serving your sentence, the Commissioner of Correctional Services will be able to reduce it further by remitting part of it for good behaviour. You will also be aware of the facilities available in prison for obtaining some training which will assist you in obtaining employment once you leave prison. I would encourage you to take advantage of whatever is available to you.
If you are to have any chance of achieving your goal of freeing yourself from drugs, you will have to end any association with people involved in the drug culture. This means that when you leave prison, you will have to look after yourself without financial assistance from previous drug associates. You will need to fund your lifestyle without any income from drug trafficking. That means you will have to obtain employment and become an independent self-supporting person.
If you do that, you will be able to take pride in what you have achieved. But it will be too easy for you to slip back into the drug culture and the income which it provides. Only you will be able to stop that from happening. But as I have previously said, if you have the help and support of your family, it may make your task of rehabilitation easier.