CRIMINAL CASE NO. 110 OF 2012
COURT: The defendant was convicted after trial of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
The facts disclosed that the defendant is a Vietnamese national. She travelled to Hong Kong from Nairobi on 6 September 2010 and was in transit for a flight to go to Phnom Penh. As she had missed her flight, arrangement was made for her to rebook another flight. As a result of the rebooking, the suitcase she had checked in needed to be located and retagged.
When the suitcase was tested both by the ionized test and by x‑ray, suspicion was aroused as to the contents of the suitcase. Later on, in the presence of the defendant, the suitcase was searched thoroughly, and a package containing 3.03 kilograms of methamphetamine hydrochloride, commonly known as “Ice”, worth over HK$2.3 million, was found concealed under the bottom of the suitcase.
The defendant was arrested and cautioned. The defendant gave explanations to the Customs officers that she agreed to act as a courier to take US currency from South Africa to Cambodia for a reward, and that she knew nothing of the existence of the dangerous drug.
By finding her guilty, the jury clearly do not believe her story.
The Background
The defendant is a Vietnamese national, born in Ho Chi Minh City in November 1958. She is therefore 53 years of age, almost 54. The defendant had no conviction record in Hong Kong.
Although according to the antecedents statement taken from the defendant, the defendant claimed she had one son and daughter-in-law in Vietnam, Mr Ross informed me that she in fact had four children. The antecedents statement given by the defendant also mentioned that she is single, but had a boyfriend back in Vietnam. That part of the antecedents statement was not challenged or corrected.
The defendant also claimed to have received no formal education in the antecedents statement. Mr Ross informed me the defendant worked as a casual assistant cook in events such as weddings when she was in Vietnam.
In mitigation, Mr Ross submitted that the defendant was not the mastermind. As to the appropriate starting point, Mr Ross submitted that the learned judge on the last occasion had taken the guidelines for large quantities of heroin given by the Court of Appeal in the case of HKSAR v Abdallah [2009] 2 HKLRD 437 to reach a starting point of 26 years, which included the international element.
Mr Ross submitted that the tariff for “Ice” is lower than that for heroin, so even accepting the principles behind the giving of further guidelines for heroin, the actual tariff for heroin should not be adopted in this case. Mr Ross submitted that the proper starting point, even with the international element, should not be as high as 26 years. Mr Ross referred me to 13 cases involving the trafficking of “Ice”. The quantity involved ranged from almost 1 kilogram to over 4.7 kilograms. He pointed out the sentences imposed in those cases to support his contention that 26 years would have been too high for the quantity involved here.
Mr Ross also asked me to consider the defendant’s age, saying that with a sentence of over 20 years, the defendant would be an old woman before she is released.
A person convicted of this offence on indictment is liable to be filed $5 million and to imprisonment for life. For the trafficking of “Ice”, the Court of Appeal has set down sentencing guidelines. In the case of Attorney‑General v Ching Kwok Hung [1991] 2 HKLR 125, for the trafficking of over 600 grammes of “Ice”, the starting point is upwards from 18 years.
The question I have to decide is how many years upwards from 18 years should I take the starting point. The dangerous drugs involved here is pure “Ice” of 3.03 kilograms.
The defendant is clearly acting as a courier. There is also an international element involved in the offence. Although the “Ice” was not destined for Hong Kong, Hong Kong was nevertheless used as the transit place for the forwarding of the “Ice” to another country.
While I am aware the defendant was sentenced to 26 years’ imprisonment on the last occasion, I am not bound by such a sentence, and I have to consider what the appropriate starting point is here. It therefore matters not whether the learned judge had erroneously adopted the guidelines for large quantities of heroin on the last occasion.
There are, of course, no further guidelines for the trafficking of large quantities of “Ice” from the Court of Appeal. Until and unless the Court of Appeal hand down further guidelines, sentencing judges can only decide on the appropriate starting point with reference to the guidelines in Ching Kwok Hung and to consider comparable cases.
Having said that, I am of the view that what the Court of Appeal has said in the case of Abdallah in the following two aspects are equally applicable here. The first is that room must be left for sentences which fall into the highest range. No. 2, the court needs to take into account aggravating circumstances such as international element, and enhance the sentence which would otherwise be imposed.
Having considered the circumstances of this case, the drugs involved, the role played by the defendant, and bearing in mind the aggravating factor of international element, I am of the view that a starting point of 24 years is appropriate here.
The defendant pleaded not guilty, so she is not entitled to the usual discount for persons pleading guilty.
I heard nothing in the background of the defendant which is so exceptional as to allow me to reduce her sentence. The fact that she is 53, almost 54, is not a ground for any reduction.
There exists a scheme for which persons sentenced to a long prison term will automatically have their sentences reviewed.
It is not pleasant for this court to sentence a woman as in the case of the defendant to such a long term of imprisonment. However, the defendant was prepared to run the risk and courier such a large amount of “Ice” which, if successfully couriered to whatever destination, would have done a lot of harm to that society. The defendant must bear the consequences of committing such a serious crime.
For the offence of trafficking in a dangerous drug, the defendant is sentenced to a term of imprisonment for 24 years.