CRIMINAL CASE NO. 141 OF 2012
COURT: The defendant has pleaded guilty to trafficking in a dangerous drug, namely 0.32 kilogrammes of a crystalline solid containing 0.2 kilogrammes of methamphetamine hydrochloride, commonly known as “Ice”.
At about 2144 hours on 3 January 2012, the defendant was observed acting furtively outside No. 54-58 Tong Mi Road, Mong Kok. Officers searched him and found two packets of “Ice” on him which are the dangerous drugs the subject of the charge.
The defendant subsequently claimed that he was approached in Lo Wu in the mainland by a person who offered to pay him $3,000 to transport the “Ice” to Hong Kong. He agreed, and was on the way to the location where he was supposed to deliver the drugs when he was arrested. He claimed it was the first time he had carried dangerous drugs across the border.
The estimated retail value of the “Ice” is $230,080.
In a number of different cases the Hong Kong Court of Appeal has set out the principles and sentencing guidelines for judges to follow when sentencing a defendant convicted of a drug trafficking offence. The first is that the sentencing range for trafficking “Ice” is to be taken from the guidelines laid down by the Court of Appeal in Attorney‑General v Ching Kwok Hung[1991] 2 HKLRD 125. There, the Court of Appeal said that:
“Where the amount of ‘Ice’ being trafficked is between 70 and 300 grammes, the sentencing range should be 10 to 14 years’ imprisonment.”
In the present case, the quantity in which this defendant trafficked was 200 grammes of “Ice”, and so this defendant is placed in the 10 to 14 years’ band for sentencing purposes.
The existence of the 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 560 G-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 Wahcase at page 908 paragraph 22.
No such exceptional circumstances are present in this case.
The defendant is 44 years of age. He is married, but his wife lives in the mainland. He was educated only up to Form 1 of secondary school, and at the time of his arrest was unemployed. He seems to have had very little in the way of employment in the past, and has only worked at times as a cleaning worker.
He is addicted to “Ice”.
His criminal record reveals a person who throughout his life has been persistently breaking the law. In 1984, he first got into trouble when he was only 16 years of age. He was then convicted of two offences of burglary. In 1987, he had his first conviction for a drug offence, for which he was sentenced to DATC. In 1989, he received his first sentence of imprisonment, a period of 4 months, for a number of offences, including assault and claiming to be a member of a triad society. In 1993, he was again convicted of drug possession offences and again sentenced to DATC. A year later, when he was convicted of another drug possession offence, he was sentenced to prison. He was also convicted of the offence of theft, and the total length of his prison term was 12 months’ imprisonment. In 1995, he was again sent to gaol for drug possession offences; and in 1996, for the offence of going equipped for stealing.
There is then a break in his criminal history until the year 2000, when he is back before the courts for theft. In 2001, there is more theft; and in 2002, he branches out into selling pirate copyrighted works. In this enterprise he appears to have been equally unsuccessful, and was sentenced to 8 months’ imprisonment.
His first offence for drug trafficking took place at the end of 2004, and for this he was sentenced to 2½ years’ imprisonment by the District Court. After his release, he became involved with obscene articles, and at the end of 2007 was sentenced to a term of 8 months’ imprisonment.
There then followed small terms of imprisonment in 2009 for what seemed like triad-related offences before a second conviction for drug trafficking in February 2010, for which he was sentenced to 20 months’ imprisonment.
His next encounter with the law was the current offence. Since the year 2000, the defendant has spent almost as much time in prison as he has spent a free man. This, of course, is all his own doing.
In assessing an appropriate starting point, I cannot ignore the defendant’s criminal record. His past offending reveals a failure to be deterred by the criminal justice process from reoffending, and disinclines me from extending any leniency to him.
In the present case, the quantity of drugs is 200 grammes, and is therefore within the 10 to 14 years’ imprisonment band. Taking into account the background of the defendant, I adopt 13 years as my starting point. I discount his sentence by one-third to allow for his plea of guilty.
The resulting sentence is 8 years 8 months’ imprisonment, and that is the sentence I impose.
Mr Wong, for the reasons which I have just stated, you are sentenced to 8 years and 8 months’ imprisonment.
There is no basis for me extending any leniency to you, and I doubt very much that should you come before the courts again, you will ever receive any leniency from them. You have wasted your life, and if you do not change, you are likely to waste the balance of it.
One of the things that is abundantly clear from your criminal record is that you are not a very successful criminal. That is clear from the fact that you have been in and out of gaol for the last 10 years, and as you have heard me say, you have probably been in gaol as much as you have been a free man. You should know very well that should you come out of gaol and return to crime, the likelihood is that you will simply be arrested, prosecuted, convicted and sent to gaol again.
So when you are in gaol, you should think seriously about what you want to do for the rest of your life. That is only a decision which you can make, but as your counsel has indicated, facilities do exist in prison for you to do some courses and receive some skill training. I urge you to take advantage of those facilities so that when you do come out of prison, you will have some skills which will help you in getting employment.