In sentencing I have considered the whole circumstances of the case including its nature and facts, in particular the type and quantity of the dangerous drug involved, your background and mitigation put forward on your behalf by learned defence counsel.
The facts of the case may be summarised as follows. On 1 March 2012 both of you were stopped by Customs officers at the boarding hall of the Hong Kong International Airport, waiting for a flight to Japan. Both of you had joined a tour group for Tokyo. In a suitcase each of you had checked in, dangerous drug was found concealed inside.
Count 1 alleged a joint enterprise of the two of you to traffic in all dangerous drugs in the two suitcases. Count 2 is an alternative to Count 1 by which you are alleged to have trafficked in the dangerous drug inside the suitcase checked in under your name.
The dangerous drug in question was 1,190 grammes of a crystalline solid containing 1,190 grammes of methamphetamine hydrochloride, “Ice”.
I was told that you are now 40 years of age, you are divorced, and have a 15-year-old son. Until shortly before the date of offence you had been running a decoration company of your own. You ran into debt and had to close down your business. Then you worked as a waiter. You came to know D2 and you said it was D2 who introduced you into the job which led to your arrest.
You do not have a clear record. Your first conviction was in 1999, for two offences relating to a vice establishment. You were sentenced to a total of 6 months’ imprisonment, suspended for three years.
In 2001 you were convicted of a total of 10 charges of theft and you committed these offences in breach of the suspended sentences. The suspended sentences were activated and to run on top of the total of 1 year’s imprisonment imposed on the theft charges.
In 2004 you were convicted of one charge of common assault and one charge of theft and an imprisonment term was imposed.
You have never committed any offence in relation to dangerous drugs.
The Court of Appeal held in AG v Ching Kwok Hung [1991] 2 HKLR 125 that in a case of trafficking in “Ice” where the narcotic content was over 600 grammes, the sentence should range from 18 years upwards. In deciding the starting point, I have to bear in mind the danger of mathematical progression causing injustice.
I have to take into account the fact that you were taking the dangerous drug out of Hong Kong. For this aggravating feature the starting point should be enhanced by 1 year. In all the circumstances, I adopt a starting point of 20 years. You pleaded guilty and for this reason are entitled to a one-third discount.
You had testified for the prosecution against D2. The jury found him not guilty for both counts. The most important part of your evidence against D2 is your allegation that he had told after the checking in that there was “Ice” inside the suitcases. It is obvious from their verdict, in particular that of Count 2 in the trial, which is Count 3 of the original indictment, that the jury did not believe in your testimony.
However, I note from cross-examination of you that whilst it was your testimony that D2 said those incriminating words to you in the airport, you did not say so in the witness statement. In the statement you said he had told you on an earlier occasion. You did give an explanation. You said it might have been the case that the statement-taking officer misunderstood what you had said and there had been confusion in the interview in that questions were not asked of you in proper sequence.
I am not in a position to ascertain the jury’s finding of your explanation. The explanation is to me not convincing. The statement takes the form of questions and answers. You have read the witness statement before you signed it.
In the circumstances, I am of the view that you are entitled only to a slight further discount.
By reason of the matters aforesaid, I sentence you for Count 2 in the original indictment to 12 years and 9 months’ imprisonment.