CRIMINAL CASE NO. 134 OF 2010
You told the Customs officers that it was for your own consumption. The prosecution has accepted that to be so. You were apparentlyworking in Macau at that time.
You have been charged with, pleaded guilty to, and convicted of trafficking in that drug on the basis that in terms of the definitioncontained in section 2 of the Dangerous Drugs Ordinance, to export a dangerous drug from Hong Kong for whatever purposes constitutes trafficking in it.
The issue for me is the correct approach to sentencing you for that offence in these circumstances.
If you had been exporting the drugs for the purpose of supplying them to another, the starting point after trial would be at least7 years’ imprisonment. I say at least, for that is the effect of the guidelines set out by the Court of Appeal in Ching Kwok Hung, although no mention is there made of the international element of moving a drug across borders. In the more recent decision of Abdallah, the Court of Appeal has specifically indicated that importation of a drug into Hong Kong is an aggravating feature justifying anenhanced sentence.
I see no reason why, in principle, an enhanced sentence should not also apply to exportation.
Conversely, if you had been stopped before clearing Immigration, and the prosecution accepted that you possessed the drug for yourown consumption, that would have attracted a starting point after trial of approximately 18 months’ imprisonment. It cannot bethat with no change in your intention, the mere fact that you have passed through Immigration could escalate the sentence some five-fold.
The only previous decision of this court dealing with a situation where the prosecution accepted, or the court found, that the drugsbeing exported were for the offender’s own consumption that I have been able to locate is a decision in Yu Young Chae. In that case, Deputy Judge Line identified the issue and substantially reduced the sentence imposed by a magistrate who himselfhad cut the notional starting point by 50 per cent because of what he described as the technical nature of the offence.
In my judgment, to take a starting point such as is appropriate for trafficking in the sense of supplying, and then to reduce it toa level completely inconsistent with sentences imposed for that very conduct, is wrong in principle. It ignores the reality of thesituation, which is that there was no intent to supply.
The appropriate approach is to consider what the sentence would be for possession of the drug, and then to escalate that sentencefor the aggravating element of exportation which created the offence of trafficking, for undoubtedly taking a drug across a border,however artificial or arbitrary the border between Hong Kong and Macau may now be, constitutes conduct of greater criminal culpability.
A quantity of drugs such as this, which, according to the Agreed Facts, would last the typical abuser between approximately 1 to 4months, would usually cause consideration of whether there should be enhancement of sentence for the latent risk of distribution.In your case, however, the prosecution, by accepting that all of the drugs were for your own consumption, accepts there is no latentrisk.
In these circumstances, moreover, any such enhancement would be inappropriate, as any possible latent risk would exist in Macau andnot in Hong Kong, and thus is not justiciable here.
Amongst your previous convictions, four are for possession of dangerous drugs. You were twice committed to Drug Addiction TreatmentCentre, and once, remarkably, by this court in between two DATC orders, placed on probation. These convictions do not justify anyenhancement of sentence.
I take a starting point of 18 months’ imprisonment after trial. I increase that by 9 months to 27 months for the fact that you wereexporting the drugs. You are entitled to a one-third discount for your plea of guilty. I have been made aware of your personal andfamily circumstances today. There is no further mitigation available to you.
You are to serve a period of 18 months’ imprisonment.
Application by Secretary for Justice for review of sentence allowed by Court of Appeal. Please refer to CAAR11/2010 dated 28 April2011