2. What are the possible punishments?
Penalty
The maximum penalty for trafficking in a dangerous drug is life imprisonment and a fine of HK$5,000,000 on indictment or 3 years’ imprisonment and a fine of HK$500,000 on summary conviction (section 4(3) of the Dangerous Drugs Ordinance).
Sentencing principles
The Court of Appeal has recently laid down a six-step approach to sentencing in trafficking cases:
To identify the relevant guidelines band applicable to the quantity of drugs concerned.
To assess the defendant’s role and culpability based upon the evidence.
To identify where in the relevant band the defendant came, bearing in mind that it might be necessary to go outside that band whether above or below, given the circumstances of the offence and the role of the defendant.
Consideration of aggravating factors which might justify enhancement of the starting point.
Consideration of mitigating factors when assessing the overall discount from the notional sentence bearing in mind that personal circumstances would generally count for little.
To observe the overall sentence passed to ensure that it was fair, just and balanced.
Sentencing guidelines
Trafficking in dangerous drugs is most usually punished by immediate imprisonment. The Court of Appeal has prescribed sentencing guidelines on the starting point that should be adopted based on the quantity of different kinds of dangerous drugs, and based on the offender being a mere courier.
However, if an offender is shown to have played a role higher up in the drug trafficking enterprise hierarchy, the starting point for his sentence will be adjusted upwards. The different roles that have been identified are courier or storekeeper, actual (or direct) trafficker, manager or organiser, operator or financial controller, and international operator or financial controller. Furthermore, if the trafficking involved an international element, e.g. bringing dangerous drugs from abroad into Hong Kong, it will be considered an aggravating factor attracting an enhanced sentence.
C. Trafficking in ecstasy (methylenedioxy methamphetamine or MDMA)
E. Trafficking in ICE (methamphetamine hydrochloride)
G. Trafficking in methaqualone and diazepam
I. Trafficking in N,N – dimethylamphetamine (NNDMA)
That said, the starting point derived from these guidelines do come with discretion.
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