CRIMINAL CASE NO. 339 OF 2011
COURT: Now, defendant, you were convicted after trial of one count of trafficking in dangerous drug. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the nature and quantity of the dangerous drugs involved, your background and mitigation put forward on your behalf.
The facts of the case are simple. On the evening of 3 June 2011, when you were walking out from an exit of the Kowloon Park, you were stopped by police officers. At that time, you were carrying a paper bag inside which were two notebook computers. Dangerous drugs were concealed inside one of those computers. You denied knowledge of the existence of the dangerous drugs.
By implication of the verdict, it is clear that the jury found that you had the knowledge and were trafficking in the dangerous drugs. The dangerous drugs you were trafficking in were 151.37 grammes of a mixture containing 64.32 grammes of heroin hydrochloride and 17.52 grammes of monoacetylmorphine hydrochloride.
I was told that you are 27 years old, born in Pakistan and came to Hong Kong in 1998. You were living with your family. I was also told that both of your parents are not in good health. You have received education up to Form 4 level. Before the arrest, you were a driver by occupation, earning about $13,500 a month.
You were not a first-time offender. In December 2004, you were convicted of three charges of trafficking in dangerous drug and were sentenced to receive training in a rehabilitation centre. It took place seven years ago when you were 19 years old. I was told that the dangerous drug involved in that case was cannabis.
Your counsel, Miss Panesar, urged me to accept that you are a person of good nature. I was also invited to note that your family is supportive to you and they have been present in court during the trial to show their support.
The major dangerous drug you trafficked in was heroin. The total narcotic content of the heroin hydrochloride was 64.32 grammes. The Court of Appeal suggested in the case R v Lau Tak Ming [1992] HKLR 370 that a sentence of 8 to 12 years’ imprisonment should be considered for trafficking in heroin if the narcotic content is 50 to 200 grammes. In all the circumstances, I do not find there are good grounds to depart from the tariff. I have to take into account that you were trafficking in two types of dangerous drugs, and this was the second time you were convicted of the offence of trafficking in a dangerous drug. In all the circumstances, I consider a starting point of 9 years appropriate.
In mitigation, your counsel, Miss Panesar, urged me that you are entitled to discount by reason of entrapment. She asked me to accept that there was at least a real possibility that you had been encouraged to commit an offence which you would not otherwise have committed. A real possibility and a real likelihood were expressions which Lord Parker CJ referred to in the case of Birtles (1969) (53 Cr App R 469) when the English Court of Appeal discussed on what should be the proper test in deciding the issue of entrapment.
In HKSAR v Cheung Yun Kei [2001] 4 HKC 52, Keith JA said that:
“I suspect that the phrase ‘a real possibility’ reflects what Lord Parker truly had in mind, because it would be wrong to deny the offender the benefit of any real doubt on the matter, even if it could not be said that entrapment was more likely than not to have occurred.”
In the present case, you were found in possession of a substantial quantity of dangerous drugs. These dangerous drugs were concealed in a computer. I have to consider the matter in the context of the finding of the jury that you were a knowing party to this trafficking act. The quantity and value of the dangerous drugs were both substantial. You had a previous conviction of trafficking in a dangerous drug. What you have done was not untypical in a drug-courier case. These are factors against you in consideration of the matter. That said, I note that your previous conviction took place seven years ago, and since then, you managed to stay out of trouble after your discharge from the rehabilitation centre.
Miss Panesar urged me to take into account factors including the followings: no dangerous drug nor paraphernalia commonly related with drugs were found at your home; no fingerprint of you was found on the computer; and no computer was found at your home. She also asked me to pay particular attention to the evidence that there had been frequent telephone contacts between you and the person you asserted to have given you the computer prior to your arrest, and more importantly, the sudden cease of contact and disappearance of the blue car to which you were to deliver the dangerous drug. She submitted that this is strong indication that there was monitoring of the situation and thus a sign of setting-up. From what we have heard during the trial, the existence of the other man and the car is not fictional.
She also asked me to take into account the following information. It was disclosed in the witness statements that the police was acting upon information. Mr Ryan, learned prosecuting counsel, confirmed to the court that it was the case. Knowing that the stand would lead to a favourable light being shed on the defence case, quite understandably, Mr Ryan refrained from providing further information about the identity of the informant and the amount of reward, if any, given to him.
In response to submission of Miss Panesar that the prosecution is not able to exclude the possibility of an entrapment, Mr Ryan said that he was in quite pretty much the same position as Mr Chapman was in the case of HKSAR v Cheung Yun Kei.
In the circumstances, I have to consider the matter on the basis that there is no evidence to exclude the possibility that the informant was the person who encouraged you into the offence if it has been the case. That there has been an informant does not by itself necessarily mean that you have been encouraged into the offence. The matter has to be decided by consideration of the whole circumstances.
Miss Panesar also asked me not to give undue weight on the quantity and value of the dangerous drug in consideration of the matter. She persuaded me not to exclude the possibility despite the lack of evidence that this incident might at the same time be a vehicle to divert the attention of the authority from another lucrative, illegal trafficking activity.
Having considered the whole circumstances, bearing in mind the test to be applied, I accept that there is a real likelihood, actually, I mean to say a real possibility that you had been encouraged to commit the offence which you would not otherwise have committed. I am satisfied that for the purpose of mitigation, a case of entrapment has been made out and a discount in sentence should be considered.
In consideration, I take into account that there is no evidence to show that you were not otherwise a non-willing party in the matter. I have not been told that how exactly you came to be involved in this offence. There is no suggestion that an effort of any serious degree had been required to encourage or incite you to take part.
In my judgment, you are entitled to a 9 months’ discount by reason of entrapment.
In addition, having regard to everything your counsel told the court and the special circumstances on the papers, I am of the view that a lenient view is justified to be taken and will give you a further discount of 9 months.
Yes, so, defendant, please stand up. In all the circumstances, I sentence you to an imprisonment term of 7 and a half years.
Please refer to CACC303/2012 for the relevant appeal(s) to the Court of Appeal.