HKSAR v. BAN PING YU

CACC 102/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 102 OF 2000

(ON APPEAL FROM HCCC 394/1999)

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J U D G M E N T

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Ribeiro JA (giving the judgment of the Court) :

1. On 27 August 1999, the applicant arrived in Hong Kong by air from Bangkok. He was intercepted by Customs Officers and found to be carrying 12 packets consisting of 2,792.20 grammes of a mixture containing 2,298.09 grammes of heroin hydrochloride with a street value in excess of $3 million.

2. The applicant was charged in the Court of First Instance with trafficking in dangerous drugs and on 24 February 2000, he pleaded guilty before Jackson J. He was sentenced to 16 years' imprisonment. He now seeks leave to appeal against that sentence.

3. The applicant was aged 39 at the time of sentence. He was originally from Shanghai. It was said in mitigation that prior to his involvement in the crime, he had suffered a series of misfortunes. First, he became unemployed when the garment factory in which he was working closed down in 1997. Then his wife left him, leaving their 12-year-old son in the care of the applicant's mother who is in her 70's and in ill health.

4. It was as a result of the severe financial hardship that he agreed to go to Thailand at the suggestion of a friend and with that friend's financial assistance in the hope of finding work there. However, work was not forthcoming and, when he proposed returning to China, he came under severe pressure to repay the money that had been advanced to him for his travel, living and other expenses in Thailand.

5. As he could not make repayments, he succumbed to pressure to act as courier for the drugs between Bangkok and Hong Kong. He has no record of any previous convictions.

6. In determining the sentence, the judge referred to R v Lau Tak-ming [1990] 2 HKLR 370 where this court laid down well-known sentence guidelines for trafficking in dangerous drugs.

7. The appropriate sentence (after trial) for trafficking in between 400 and 600 grammes is imprisonment for 15-20 years. Quantities exceeding 600 grammes are classified as within the "very large quantities" category capable of attracting sentences in excess of 20 years, the maximum sentence being life imprisonment.

8. We are presently concerned with about four times the 600-gramme amount in a case involving the international drug trade. As the judge pointed out, this very large quantity of heroin was intended for the Hong Kong market, and if distributed here, would have caused untold misery. It is therefore an extremely grave offence.

9. The judge took as his starting point 24 years' imprisonment and discounted the sentence by a third for the applicant's guilty plea. He plainly took into account the matters raised in mitigation which I have described and, in our view, was quite entitled to find that they did not justify any further reduction in the sentence.

10. In a letter written by the applicant to the court in support of his present application, he states that part of the pressure put on him involved a threat to his mother and son, and also that he was hit several times and threatened with guns. He says he was advised not to raise these matters before the judge in case a not guilty plea might be entered on his behalf, which could lose him the benefit of the discount for pleading guilty.

11. We are unable to accept these allegations. The essence of the mitigation put forward was that the applicant had been severely pressurised to act as courier when he was in Thailand. The allegations now raised do not materially add to the mitigation in the absence of the applicant's discontinuing his criminal activity on arrival in Hong Kong.

12. Accordingly, we can see no basis for interfering with the sentence passed and the application is dismissed.