CRIMINAL CASE NO. 17 OF 2012
COURT: On 13 January of this year, the defendant pleaded guilty at the Eastern Magistracy to a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
A Summary of Facts was read in open court and accepted by her as being correct. She was thereafter committed to this court for sentence. Today before me, she has confirmed her plea of guilty and that Summary of Facts. She is therefore convicted of the charge.
The defendant is a Tanzanian national. The particulars of the charge alleged that, on 14 June 2011, at the Customs Arrival Hall at the Hong Kong International Airport at Chek Lap Kok, she trafficked in dangerous drugs and, in particular, a mixture containing 501.14 grammes of heroin hydrochloride and 100.32 grammes of monoacetylmorphine hydrochloride.
The Summary of Facts admitted by the defendant revealed that on 14 June 2011, she arrived at the Hong Kong International Airport on a flight from Addis Ababa. She was denied permission to land in Hong Kong but was subsequently searched by Customs & Excise officers. They found a plastic bag inside her underwear which they suspected to contain dangerous drugs.
She was arrested and ultimately conveyed to the Queen Elizabeth Hospital where she was admitted. Some time after her admission to hospital, she discharged some 70 pellets which also were suspected to contain dangerous drugs. Those suspicions proved to be correct and a subsequent analysis of the contents of these and the other packet established that she was carrying 899.1 grammes of a mixture containing 501.14 grammes of heroin hydrochloride and 100.32 grammes of monoacetylmorphine hydrochloride.
In the Summary of Facts, there is reference to the report of a forensic scientist. The scientist’s report contains the following relevant matters. Heroin, also called diacetylmorphine and monoacetylmorphine are both acetylation products of morphine. Heroin produced by the chemical process of acetylation may contain monoacetylmorphine due to incomplete acetylation. Heroin may also be partially hydrolysed by moisture to form monoacetylmorphine.
Like heroin hydrochloride, monoacetylmorphine hydrochloride is a narcotic analgesic with similar potency and is controlled under the Dangerous Drugs Ordinance, First Schedule, Part I, as a salt of an ester of morphine. Heroin hydrochloride and monoacetylmorphine hydrochloride together can also be named as salts of esters of morphine. It was also confirmed by the forensic scientist that the monoacetylmorphine found was 6-monoacetylmorphine which has similar potency to heroin hydrochloride in its analgesic or narcotic properties.
The rationale behind those observations is to establish for the court’s benefit that it is appropriate to sentence on the basis of the guidelines provided in The Queen v Lau Tak Ming, there being no distinction to be properly made between the heroin hydrochloride and the monoacetylmorphine hydrochloride in this case.
That being the case, the defendant falls to be sentenced on the basis of the total quantity of salts of esters of morphine, which is slightly in excess of 600 grammes. On behalf of the defendant, Miss See has taken no issue with that.
The dangerous drugs imported by the defendant were valued in excess of HK$600,000. The defendant told the Customs & Excise officers that her ultimate destination was Guangzhou and that she had been paid something in the order of 3 million Tanzanian shillings to take the drugs there.
On behalf of the defendant, Miss See has told me something of her background. She is widowed. She has four children, the youngest of which is 12 years of age. She became widowed after her husband died from AIDS, and she has since been diagnosed herself as being HIV positive, as is her 12-year-old daughter. Miss See tells me that it was in these circumstances that she succumbed to the temptation to obtain money by trafficking in drugs, specifically for the purpose of providing for herself and her daughter.
These are tragic circumstances but, nevertheless, they are not matters that properly justify a departure from the guidelines for sentencing. I note from a medical report which is dated 9 March 2012 that, whilst the diagnosis of HIV positive is confirmed, she is currently receiving regular checkups but does not require medication.
It is accepted by Miss See, quite properly, that the approach to sentencing is governed, in part, by the observations of the Court of Appeal in Abdallah, which is reported [2009] 2 HKLRD at 427, together with the observations of the Court of Appeal in The Queen v Lau Tak Ming & Ors, which is reported in [1990] 2 HKLRD at 370.
For 600 grammes of salts of esters of morphine, the appropriate starting point, as indicated in Lau Tak Ming, is one of 20 years’ imprisonment. By reference to HKSAR v Abdallah, that starting point should properly be enhanced to reflect the fact that there is an international component to the defendant’s drug trafficking. I consider, in the circumstances, that an enhancement of 1 year after trial is justified. These are the sentences that would be imposed after trial.
The defendant has pleaded guilty at the earliest opportunity and she has expressed her remorse both in that plea and to the court in a letter she has written. She is therefore entitled to a full one-third discount from the appropriate starting point to reflect that plea of guilty and her remorse. There is nothing in the circumstances of the defendant nor the circumstances of the commission of the offence which would entitle her to any further discount.
From a starting point of 21 years after trial, allowing for a full discount of one-third, the appropriate sentence is one of 14 years’ imprisonment and that is the sentence I impose in this matter.
Please refer to CACC155/2012 for the relevant appeal(s) to the Court of Appeal.