HKSAR v. VHEMY AXEL-SUPARDI

CACC 12/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 12 OF 2000

(ON APPEAL FROM HCCC 323/1999)

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J U D G M E N T

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Hon Leong JA (giving the judgment of the Court):

1. On 24 May 1999, Customs and Excise officers on duty at the Kowloon Railway Station at Hung Hom saw the applicant loitering and looking nervous in the arrival hall. They stopped and searched the applicant and found on him five bags containing what was subsequently proved to be 2,097.18 grammes of crystalline solids containing 2,087.25 grammes of methamphetamine hydrochloride, commonly known as "Ice". The applicant admitted under caution that he was hired to take the "Ice" from Guangzhou to Indonesia via Hong Kong for a promised reward equivalent to HK$20,000 if the "Ice" were successfully delivered to Indonesia.

2. The applicant was subsequently charged in the Court of First Instance in the High Court with one count of trafficking in a dangerous drug, namely 2,097.18 grammes of crystalline solids containing 2,087.25 grammes of "Ice". He pleaded guilty before V. Bokhary J and was sentenced to 15 years imprisonment.

3. The Judge took a staring point of around 24 years and after taking into account of his plea and everything that was submitted on his behalf in mitigation reduced the sentence to one of 15 years and that was the sentence imposed on the applicant.

4. The applicant now seeks leave to appeal against sentence. In the perfected grounds of appeal, two grounds have been advanced by Mr Polson, counsel on his behalf.

5. On the first ground, Mr Polson submitted that the applicant was only a courier concerned with delivery of the drug to Indonesia. Relying on R v Mohamed Yaqoob [1988] HKC 412, he submitted that bare delivery of the drugs was the least serious form of the offence. He also relied on R v CHAN Kwok-hung [1996] No. 67 (Criminal) where the Court of Appeal held that for trafficking in 2,943.63 grammes of "Ice", a sentence in the region of 21 years imprisonment would have been the appropriate starting point.

6. On the second ground Mr Polson also relied on R v Mohamed Yaqoob. He submitted that the Judge had failed to consider the fact that the applicant was a foreign national and would accordingly find prison a more disagreeable experience and this was a mitigating factor although not to any substantial degree. The case of AG v Pedro Nel Rojas [1994] 1 HKC 342 was also referred to.

7. In our view, the applicant was a courier of the international drug trade and that makes the offence more serious. The guidelines in AG v CHING Kwok-hung set down that the sentence for trafficking in over 600 grammes of "Ice" should range from 18 years upwards. The starting point of around 24 years for more than three times of the quantity of 600 grammes is entirely consistent with the guidelines. The fact that in other cases a lower starting point than 24 years was adopted for a larger quantity of "Ice" or where a smaller quantity attracted a higher starting point than 24 years is no ground for interfering with a sentence which is otherwise not wrong in principle and not manifestly excessive.

8. In AG v Pedro Nel Rojas [1994] 1 HKC 342, Silke VP had this to say in respect of the "foreignness" element in sentencing a foreign defendant:

9. The Judge, in our view, in arriving at the sentence of 15 years imprisonment that was imposed on the applicant had discounted 9 years from the starting point of 24 years. It would appear that the Judge had after allowing 1/3 reduction for the applicant's plea, had further reduced the sentence by one year for the other mitigating circumstances. That must have taken into account the foreignness aspect for which no specific discount should be made.

10. There is nothing wrong in principle in the starting point and the discount for all the mitigating circumstances. The final result of 15 years is neither wrong in principle nor manifestly excessive. The application is dismissed.