COURT: The defendant pleaded guilty at committal on 28 June 2013 to one charge of trafficking in dangerous drugs. The drugs were 54.66 grammes of a crystalline solid containing 53.36 grammes of methamphetamine hydrochloride and 28.96 grammes of a mixture containing 22.58 grammes of heroin hydrochloride.
The facts which the defendant admitted at committal were confirmed before this court. They were that the defendant was intercepted at the Customs Arrival Hall on his return to Hong Kong from the mainland through the Lok Ma Chau Boundary Control Point. There were no suspicious items found on him after a search, but in the bag he was carrying were condoms, lubricant, a pump and an electronic scale. A screening test for drugs was done which gave a positive result. The defendant was sent to North District Hospital for examination. Customs officers suspected he was concealing drugs in his rectum.
Examination at the hospital confirmed that there were foreign objects in his rectum and later, in the presence of the Customs officers, the defendant excreted three pellets all wrapped in condoms.
He was arrested and cautioned. Under caution, he said that one pellet contained heroin while the other two contained "Ice". He told the officers that he was asked by a mainlander known to him as ‘Ah Po’ to carry the drugs into Hong Kong for payment of HK$1,500.
In a subsequent video-recorded interview, the defendant stated that he had left Hong Kong for the mainland earlier on the same day. After he crossed the border, Ah Po contacted him and said he would be paid $1,500 if he agreed to pick up a packet of drugs and take it back to Hong Kong. In Hong Kong, he was to deliver the drugs to a back alley at Yu Chau Street in Sham Shui Po, Kowloon. The defendant agreed to do so.
When he went to the back alley as directed, he saw a plastic bag containing three pellets of drugs. He used the lubricant to help conceal the drugs inside his body. He explained to the officers that the pump was for discharging the drugs; the condoms were for him to wrap the drugs in; and the electronic scale was to check the weight of the drugs. He was to be paid only on successful delivery of the drugs.
Subsequent analysis by the Government Chemist confirmed the quantity and nature of the drugs as set out in the particulars of the charge. The estimated street value of the dangerous drugs at the time of the offence was HK$67,374.
Criminal Record
The defendant has five previous convictions beginning in 1993 with robbery and a separate theft. He was placed on probation for a total of 18 months. In 1995, he was convicted of possession of dangerous drugs and sent to Training Centre. In 1999, for a similar conviction, he went to DATC. His most recent conviction was for theft in 2001 for which he was fined. He has kept out of trouble since 2001 and I note that he has no previous conviction for trafficking.
Antecedents Statement
Information from his antecedents statement shows that he was born in Hong Kong on 15 March 1979 and is aged 34. He was educated to form 1 level and left school in 1992. He worked initially as a construction site worker but from 1997 had been a transportation worker, earning in the region of $10,000 a month.
His mother, who is aged 60, is a widow in poor health. His father died in 2008. The defendant is single and has lived in the mainland with his fiancée since 2011. He has two elder sisters and one elder brother but he is the person who has been supporting his mother.
I am advised that he wants a reunion with his son. His wife filed for divorce and a decree nisi has been granted. The wife has changed her son’s name entirely and the child has been removed from the care of the defendant’s family. I was advised that the defendant relapsed into drug-taking around the time that his marriage started to break up.
In explanation for this offence, I was advised that he was trying to get money together for his mother’s operation and her continuing care. It was pointed out that he tried to assist the police in this matter and was co-operative from the time of his arrest. It was pointed out that he had only a small role in this trafficking. He is not one of the beneficiaries of the sale. I was also instructed by counsel that the defendant said that he was to receive 5 grammes of each type of drug as part of his payment for this offence.
Letters have been put before the court from the defendant himself and from his elder sister. The defendant expresses regret for the crime he has committed. He apologises to his family and acknowledges the harm that he has caused society generally. He seeks leniency and promises he will never commit a crime in the future.
His sister writes that he is the youngest child in the family. She attributes the defendant’s condition in part to family neglect. She confirms that despite his criminal offences, he has always tried his best to care for his parents. Since the death of his father, he has undertaken the sole responsibility in taking care of the mother. She pleads for leniency and indicates the family’s support.
Consideration of Quantum
The guidelines for trafficking of "Ice" are set out in Attorney General v Ching Kwok Hung [1991] 2 HKLR 125. The quantity of narcotic between 10 and 70 grammes attracts a sentence in the range of 7 to 10 years’ imprisonment. For heroin hydrochloride, the Lau Tak Ming guidelines apply. A quantity of narcotics between 10 grammes and 50 grammes attracts a sentence of 5 to 8 years’ imprisonment.
In this case, it is appropriate for the narcotic quantities to be aggregated and for sentence be assessed on that total, which is 75.94 grammes. I note that even if the defendant was given a further 10 grammes for his own consumption, that does not affect the final sentence. I take the starting point for the combined quantity of 7 years’ imprisonment.
The defendant was bringing the drugs into Hong Kong and that importation merits a further 6 months added to the starting point. The final starting point is therefore 7 years and 6 months’ imprisonment.
I have considered all matters put before me in respect of the defendant’s mitigation. I note his co-operation with the police, but his only real mitigation at the present time is his plea of guilty for which he is entitled to the one-third discount.
The defendant is sentenced to 5 years’ imprisonment.
If, in the future, he is able to give further assistance to the police or makes himself available as a witness, it is for the Executive to consider whether there is a further discount on sentence available to him.