COURT: This is the sentence. Take a seat for the time being.
The Facts
On 14 March 2014, the defendant pleaded guilty at the Eastern Magistrates’ Courts to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to this court for sentence. This morning, the defendant confirmed his plea and admitted the Summary of Facts.
Briefly, the defendant was stopped by the police in the afternoon of 16 October 2013 when he was about to enter the restricted zone at the Departure Hall of the Hong Kong International Airport.
The defendant was then carrying a baggage and upon search, the drug particularised in the count, that is 2.45 kilogrammes of a crystalline solid containing 2.38 kilogrammes of methamphetamine hydrochloride, commonly known as “Ice”, was found inside a concealed compartment of the baggage.
Under caution, the defendant admitted that he intended to bring the drug to New Zealand for monetary reward as he did not have sufficient funds to operate his company. Police later found out that in early October, a male had enrolled the defendant in a tour to New Zealand.
During the cautioned interview held at the police station, the defendant said that as his company had a cash flow problem, he was asked by a male called Ah Wah to help deliver the drug. In October, Ah Wah went with him to the travel agency to make the final payment for his trip to New Zealand.
On the day of his arrest, the defendant was given the baggage by Ah Wah and was told to wait for further instructions after he had arrived in New Zealand. The estimated street value of the drug was HK$1.6 million.
Mitigation
The defendant is now aged 53. He was married in 1990, and then divorced in 1997. He has one son born out of this first marriage. The son is now studying Form Five.
In 2007, the defendant remarried with a Thai girl. They have a son aged four now being taken care of by his mother-in-law in Thailand. The defendant was educated up to Primary 6 level. At the time of his arrest, the defendant was a subcontractor in a decoration business.
The defendant has been before the court on two previous occasions with a total of seven convictions. All those convictions were relatively dated ones. In 1976, he was convicted of three charges of theft, one charge of being a member of a triad society, and one charge of possession of triad society documents. He was put on probation for all those offences. In 1997, the defendant was convicted of two offences of employing a person not lawfully employable and was sentenced to a term of 3 months’ imprisonment.
In mitigation, it was said that the defendant only committed this offence as his company was in financial difficulties at the time and he owed wages to his workers in the sum of HK$40,000 to HK$60,000. The defendant was therefore persuaded to take the drug to New Zealand in order to earn some quick money.
Further, Mr Hung referred to the case of HKSAR v Obi Martina Nzubechukwu [2013] 4 HKLRD 9. In that case, the “Ice” involved was in the amount of 2.91 kilogrammes and the Court of Appeal adopted a starting point of 24 years.
The Sentence
The tariffs for trafficking in “Ice” were laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania, CACC 28/2004, 11 August 2004 (unreported). For trafficking over 600 grammes of “Ice” a term of 18 years’ imprisonment and upwards is called for.
In HKSAR v Tam Yi Chun, CACC 524/2011, 4 October 2013 (unreported), the Court of Appeal was dealing with an applicant who was sentenced to 25 years’ imprisonment for trafficking in about 1,900 grammes of “Ice”.
On that occasion, the court observed that there had been some inconsistency in sentencing for large quantities of “Ice”, particularly in recent times, and concluded that the question as to whether there is justification for sentencing purposes in treating trafficking in very large quantities of “Ice” differently from very large quantities of heroin should be examined. As a result, the hearing of the sentencing appeal had been adjourned.
I understand that the hearing was subsequently resumed in March this year and that the judgment is now being prepared. However, since any revised guidelines which are to be issued will not have retrospective effect, the fact that the judgment is not available now does not affect the sentencing in this case.
In HKSAR v Chan Po Wah and Another, CACC 179/2012, 26 March 2013 (unreported), the Court of Appeal commented that although no revision had taken place in respect of the sentencing tariff for over 600 grammes of “Ice” and although other sentencing decisions of the Court of Appeal in respect of very large quantities of “Ice” could only be of limited value on sentence appeals, such decisions could assist a sentencing court in two ways: firstly, to avoid the danger of mathematical progression; and secondly, to achieve consistency in sentences.
I also note in the case of HKSAR v Lai Yung Ngai and Another, CACC 335/2008, 16 April 2010 (unreported), that the Court of Appeal, when dealing with the applicants, one of whom had strapped almost 1 kilogramme of “Ice” to his thighs and calves and who had joined a tour in order to bring the “Ice” from Hong Kong to Australia, observed that:
“There was an international element and what the applicant did put the leader and other members of the tour group in danger.”
There, the court upheld a starting point of 21 years.
In the present case, having considered all the relevant facts, and in order to achieve consistency as far as possible, I take the view that an initial starting point of 22 years is appropriate for the 2.38 kilogrammes of “Ice” involved.
However, as the defendant had joined a tour group in order to take the drug to New Zealand, there was clearly an international dimension. For this element, I am going to increase the starting point by 2 years. This then results in a starting point of 24 years.
The defendant pleaded guilty; he will get a one-third reduction. Other than his plea, there is nothing which would warrant any further reduction in sentence.
A term of 24 years reduced by one-third is 16 years’ imprisonment. The defendant is therefore to serve a term of 16 years for this offence.