COURT: The defendant has pleaded guilty to two counts of trafficking in a dangerous drug, namely 116.19 grammes of a solid containing 87.80
grammes of cocaine, 287.80 grammes of a solid containing 212.74 grammes of cocaine and two tablets containing a total of 3 milligrammes of nimetazepam. These two offences were committed on the same day and represent a total of 300.54 grammes of narcotic.
The defendant can sit down. Alice, I will read it out and you just translate to her in your own time.
In the evening of 3 September 2012, at about 20:35 hours, police offices saw the defendant outside the Regal Kowloon Hotel in Tsim Sha Tsui. She was carrying a handbag. She was stopped and searched. Inside the handbag were found, amongst other things, 102 packets of cocaine, a packet containing two nimetazepam tablets, one bundle of transparent plastic bags, and a hotel room key. The defendant was arrested and cautioned. Under caution she said:
“These cokes and 5 Chai are mine. It’s my first time to act as a drug courier for someone.”
The defendant led the police to Room 519 of the hotel. There the police searched the room and found a white plastic carrier bag in the bedroom which contained, amongst other things, numerous packets of cocaine, one electronic scale, and transparent plastic bags. Hidden in the living room ceiling were two pink plastic bags which contained further packets of cocaine. In total 87 bags were found in the room. When asked about the drugs, the defendant said:
“It’s me who put those coke in the ceiling and on the floor near the bedside cabinet. If there is an order for goods then I’d get some from here.”
The defendant was later interviewed under caution and made further admissions in relation to the drugs. All the drugs were analysed by the Government Chemist, who certified that the 102 packets in the defendant’s handbag contained 116.19 grammes of a solid of which 87.8 grammes was cocaine and the two tablets contained a total 3 milligrammes of nimetazepam. The plastic bags found in the hotel room contained 287.80 grammes containing 212.74 grammes of cocaine. The total estimated value of the cocaine was HK$436,713 and that of the two pills was HK$114.
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 for sentencing purposes, cocaine is to be treated as the same as heroin. Secondly, the sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained. Thus the quantity for which this defendant must be sentenced is 300.54 grammes. Thirdly, the sentencing ranges for trafficking in heroin and cocaine are to be taken from the guidelines laid down by the Court of Appeal in R v Lau Tak Ming & Others and HKSAR v Abdallah. In those cases the Court of Appeal said that for amounts of between 200 to 400 grammes, the sentencing range should be from 12 to 15 years imprisonment.
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, store keepers or some other role. Whatever the role played by the trafficker, the sentence would generally be the same (see HKSAR v Manalo). 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 HSKAR v Chan Ka Wah).
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).
There are many features of this defendant’s personal life which attract my sympathy and justify a lenient approach to the sentencing of her, but they do not represent exceptional circumstances for the purpose of departing from the relevant sentencing band.
The defendant has had a troubled and unhappy life to date. She was born into a broken home and her parents were divorced when she was very young. She has not seen her mother since. Her father died when she was young and she was reared by her grandparents. They died in 2007 and 2012. She first got into trouble with the law in 1993 when she was convicted of theft. She would then have been only 13 years of age. She spent two years in a girls’ home when a care and protection order was made in respect of her and at age 15 she attempted suicide. She next appeared before the courts in 2002 when she was again convicted of a theft offence and possession of a dangerous drug. She was then sentenced to DATC. She has not been in trouble since that time, but she admits that she has been addicted to cocaine for the last two years.
She is now 32 years of age. She was married in 2004, but separated from her husband in 2005. She then had a relationship with another man, by whom she had twin daughters, but they were adopted out at birth and are now living abroad. The relationship with the father broke up before the daughters were born. She then became involved with a man who is the father of her son. That relationship was a stable and happy one until he started to beat her. She left him 2010 and her son is being reared by his mother. She does not see her son, but sends money for his support.
After breaking up with the father of her son, she could not gain employment as she has no qualification or skills. She drifted into nightclub hostess work and from then it was all downhill for her. She became a user of drugs and she found herself being chased by debt collectors for repayment of monies owed by another for whom she had gone guarantor. In need of quick money, she was tempted into drug trafficking.
Since her arrest, she has had contact with the prison pastor who has counselled her and helped her to find comfort through Christianity. This person testified on her behalf and spoke of the defendant’s emotional distress which prompted her to turn to God and created in her a desire to change her life. The pastor is persuaded that the defendant is sincere in her desire to change. I note also that from the moment of her arrest, she fully cooperated with the police, even to the extent of telling them of her hotel room number where the drugs, the subject of count 2, were stored. Her assistance to the police does not entitle her to a greater discount than the one-third discount for her plea of guilty, but I do regard it as further evidence of her remorse and further reason for me extending to her a greater leniency than I might otherwise have done.
For the purpose of sentencing this defendant, I shall ignore the two tablets of nimetazepam.
As I have mentioned earlier, the quantity of drugs in the present case is within the 12 to 15 years imprisonment sentencing band which covers trafficking in amounts of between 200 to 400 grammes. As the quantity is 300.15 grammes, I would normally have adopted 13 years and 6 months as my starting point, but, given the very strong mitigating features present with this defendant, I am minded to extend to her such leniency as the sentencing bands allow.
I adopt 12 years as my starting point. I discount that sentence by one-third to allow for the plea of guilty.
The resulting sentence is 8 years imprisonment and that is the sentence I impose on the 2nd count. As there are two separate counts, I adopt for the 1st count a starting point of 9 years imprisonment, discounted by one-third to 6 years and impose that sentence for the 1st count. Both sentences are to be served concurrently.
Madam Wong, stand up please. The total sentence that you will have to serve is only 8 years imprisonment as I have ordered that both sentences are to be served concurrently. You have committed very serious offences for which I could have sentenced you to a far greater length of imprisonment. I have been persuaded not to by all that has been said on your behalf, especially by all that was said by the pastor. You have had a very difficult life so far, but once you leave prison, you will have a chance to turn your life around, but you will only be able to do that if you try and acquire some skill or qualification whilst you are in prison. So make use of your time in prison to acquire some kind of skill which will enable you to obtain employment and support yourself once you are out of prison.
As I am sure you are aware, the sentence of 8 years imprisonment can be reduced further should you be of good behaviour in prison. I urge you to take advantage of the opportunity which my leniency has allowed you and to make use of the time in prison to prepare yourself for your life afterwards. I urge you also to continue attending your Christian groups and to seek counselling and assistance from the pastor whenever you need it.