CRIMINAL CASE NO. 146 OF 2012
COURT: These are my reasons for sentence. The defendant has pleaded guilty to trafficking in a dangerous drug, namely, 950 grammes of a mixture containing 380 grammes of heroin hydrochloride.
He arrived at Hong Kong International Airport on 29 October 2011, on a flight from Addis Ababa. Because he was suspected to have drugs concealed internally, he was taken to Queen Elizabeth Hospital for X-ray examination.
X-ray revealed foreign objects within his body. The defendant subsequently excreted 76 pellets containing the dangerous drugs, the subject of the charge. These drugs have an estimated retail value of $635,550.
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 the sentencing range for heroin is to be determined by the quantity of the narcotic being trafficked, not the powder in which it is contained. Thus the quantity for which this defendant must be sentenced is 380 grammes.
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 & Others[1990] 2 HKLR 370 and HKSAR v Abdallah[2009] 2 HKLRD 437. There the Court of Appeal said that for amounts between 200 and 400 grammes the sentencing range should be 12 to 15 years’ imprisonment.
Thirdly, the Court of Appeal has also said in the Abdallah case 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 this case.
The court said that when the amount of drugs being trafficked was above 1 kilogramme the enhancement should not be less than 2 years’ imprisonment. Two years appears to have now become the norm for these larger amounts of heroin (see HKSAR v Lau Chun Sing[2011] 2 HKLRD 551) but for smaller quantities, such as the quantity in which you trafficked, the amount of the enhancement is within my discretion.
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 560 G 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.
Nevertheless, I still have some sentencing discretion. I can take into account the profit that might be derived from the trafficking, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender and any previous involvement he may have had in drug offences (see HKSAR v Abdallah[2009] 2 HKLRD 437).
But there are certain matters that the Court of Appeal has said cannot be treated as mitigation. Amongst such matters those that are relevant to the present case are the fact that the defendant has a clear record 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 (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 & Another[2009] 1 HKC 437).
The defendant is 41 years of age with no prior criminal record. He says he is not himself a drug user. He has only lower secondary education and prior to his arrest was working as a merchant selling clothes. He is married with two children aged 10 and 20 and he also supports his elderly mother.
I accept that he expressed and feels genuine remorse for his conduct and I accept that as a result of his conduct members of his family will suffer great hardship. I accept that he has not received any reward for his involvement in this drug trafficking and that he was driven to it by desperate financial circumstances. I accept that this is the first time he has been involved in the activity of being a drug courier.
For all of these reasons I am prompted to extend such leniency to him as the limited discretion I have allows. In the present case, the quantity of drugs is within the 12 to 15 years’ imprisonment band, as that covers trafficking in amounts between 200 to 400 grammes. As the quantity is 380 grammes, I adopt 13 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 point for sentence then becomes 13 years 6 months. I discount that sentence by one-third to allow for the plea of guilty. The resulting sentence is 9 years.
Despite what has been said by the defendant’s counsel, I can find nothing in the mitigation to justify a further discount of the sentence. The defendant is sentenced to 9 years’ imprisonment.
Mr Zuberi would you stand up. For the reasons which you have just heard me read out, you are sentenced to 9 years’ imprisonment. Your counsel will have explained to you that there are certain constraints under which I operate in imposing sentences in drug cases. You may feel this sentence is harsh, but you will understand that in some countries you would face the death penalty.
Your counsel will have also explained to you that should you be of good behaviour in prison then the Commissioner for Correctional Services does have a discretion to reduce your prison sentence further.
When you return to your home country you may well wish to consider to what extent your experience can be an example to other citizens of your country and to what extent you can spread the message of the severe consequences that drug traffickers will face should they be caught couriering drugs into Hong Kong or China. You may sit down.