HKSAR v. CHAN CATHERINE

CACC 191/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 191 OF 2012

(ON APPEAL FROM DCCC NO. 173 OF 2012)

________________________

________________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Stock VP (giving the Reasons for Judgment of the Court):

1.  On 2 May 2012, the applicant pleaded guilty before Judge Browne in the District Court to one charge of trafficking in a dangerous drug. The allegation was that on 30 December 2011 at the Custom’s Arrival Hall at Lok Ma Chau she trafficked in 16.31 g of a powder containing 12.63 g of ketamine.

2.  On that day at about 3:40 am she went to an officer – whether an immigration officer and whether at an immigration desk is a question now raised on her behalf – on the Hong Kong side and presented, instead of her Hong Kong identity card which she said she had lost, an application form for a Hong Kong permanent identity card. She was informed that this was not an adequate document with which to gain entry into the Mainland; so she walked back through the Green Channel where she was stopped and searched and inside each of her brassiere cups, were the drugs in question.  The estimated street value of the drugs was just under HK$2,000.

3.  The basis of the prosecution case was that she was exporting the drugs: exporting is, for the purposes of the Ordinance, trafficking.  The mitigation advanced was that all the drugs were for her own consumption; a mitigation that was accepted by the court but the judge put it to the solicitor acting for the applicant that the applicant “was attempting to export [the drugs], wasn’t she?” “Yes,” replied the solicitor, “that’s why she pleaded guilty to the charge of trafficking.”

4.  At the time of sentence the applicant was aged 26 years.  She had already accumulated a number of criminal convictions including two for possession of dangerous drugs.  But for his acceptance of the mitigation, the judge would have taken, he said, a starting point of 4 years’ imprisonment but because of the mitigation he reduced that to 3 years’ imprisonment and, according a one-third discount for the guilty plea, imposed a sentence of two years’ imprisonment.

5.  The applicant sought leave to appeal out of time against conviction, and (within time) against sentence.  The application in respect of sentence was lodged on 15 May 2012; but in respect of conviction not until 12 July 2012.  The delay was not long; no objection was taken by the respondent based on the time factor; and Mr Beel for the applicant provided an acceptable reason for the delay.  So we agreed to hear the application out of time.  But on 24 October 2012, we dismissed the applications both in relation to conviction and sentence and said that we would give our reasons in due course.  These are our reasons.

6.  The point taken in respect of conviction was that the facts agreed disclosed no offence of trafficking or of attempting to traffic in the drugs.  That is because at no material time did the applicant cross the border of the Hong Kong Special Administrative Region.  As for an attempt, the argument was that the admitted facts did not disclose that she had done an act or acts which was or were more than merely preparatory to trafficking.  It was acknowledged that if it were proved that one of the purposes of her possession of the drugs when she was at Lok Ma Chau was to take the drugs over the border, she would even at that stage be guilty of trafficking for the statutory definition of trafficking includes “possessing the dangerous drug for the purpose of trafficking.”  But it was argued that even that was not proved by the admitted facts.  Accordingly, the argument went, a conviction for mere possession of dangerous drugs should be substituted and the sentence altered accordingly.

7.  It is accepted that “subject to well-defined limits an accused person who pleaded guilty might nevertheless appeal against his conviction if (inter alia) on the admitted facts he could not in law be convicted of the offence charged” : see R v Shannon [1974] 2 All E R 1009 at 1024; and also HKSAR v Au Yeung Boon Fai [1999] 3 HKC 605.

8.  The summary of facts was not satisfactorily drawn.  In the parts material for present purposes it was said that:

“1. On 30 December 2011, at about 3:42 am [the applicant] was intercepted by [a senior Customs officer] at the Green Channel of Customs Arrival Hall of Lok Ma Chau Control point … . Upon such search [the drugs were found].

…

4. Subsequent to the arrest, a written cautioned statement was taken … in which [the applicant] admitted of the followings:-

(a) She was travelling to Mainland China via Lok Ma Chau Control Point but failed because she lost her Hong Kong Identity Card and was only holding an Acknowledgement of Application for a Hong Kong Permanent Identity Card;

(b) She returned to Hong Kong without crossing the boundary and was then intercepted by Customs Officers; and

(c) She was found in possession of 2 transparent resealable plastic bags containing “K powder” inside the brassiere that she was wearing.”

9.  This summary did not in terms assert that she presented her travel documents to an immigration officer at an immigration departure control point.  Mr Beel asserted that as far as concerns those admitted facts the applicant might, for all we know, have presented the acknowledgement paper to an officer who was not an immigration officer or to an immigration officer who was not at a control point.  Nor is it at all clear, he contended, that she passed beyond a control point.  An inference open on the facts, he suggested, was that she made an informal enquiry without ever presenting herself at a departure point.  If such an inference is open, it cannot be concluded, he contended, that at any stage she planned to take the drugs across the border.  The mitigation advanced on her behalf was that she only remembered about the drugs upon alighting the minibus she took to Lok Ma Chau so that it may well be, in such circumstances, that had she been told in response to her enquiry that the acknowledgement paper sufficed to allow her through, she would have disposed of the drugs before crossing.

10.  Whilst we agree that the summary of facts lack clarity, we were satisfied that from those facts and the statements made on her behalf by her solicitor, it was palpably clear that she had in fact presented herself at a departure point.  We fail to see how otherwise she could have found herself in the Arrivals Hall.  And we note in particular that when the judge put to the solicitor representing her that at the material time “she was attempting to export” the drugs, the solicitor said: “Yes.  That’s why she pleaded guilty to the charge of trafficking.”  That was a statement made on her behalf and one is entitled to assume – in the absence of evidence to the contrary, of which there is none – that it was made on instructions.  Mr Beel sought to persuade us that mitigation subsequently advanced by the solicitor contradicted that statement, but we were not persuaded to that end.  We noted as well that the mitigation, notwithstanding its considerable detail, contained no assertion that the applicant intended, upon recollection that she had the drugs with her, to dispose of them if she were permitted to depart Hong Kong.  Nor, Mr Beel conceded, was any such suggestion made by her when she was interviewed under caution.

11.  It follows that it was established that the applicant, at Lok Ma Chau, intended to take the drugs across to the Mainland and that, therefore, one of the purposes for which she possessed them at that stage was for export, as that is defined by the statute; and that on that basis the guilty plea cannot now be impugned.  For this reason alone, the application fell to be dismissed.

12.  Insofar as it was contended that putting aside the “possession for the purpose” issue, the offence of attempting to trafficking in drugs in question was not made out, we would not agree.  The distinction is between acts constituted by mere preparation, on the one hand and, on the other, embarkation upon the crime proper.  That is one way of putting it.  Another way is to ask whether the act in question is done with intent to commit the crime and forms part of a series of acts which would constitute its actual commission if it were not interrupted.  These tests are discussed in R v Gullefer [1990] 1 WLR 1063.

13.  It seems clear that the applicant had already embarked upon the course of exportation.  Once she presented her papers, she did so with the intention of taking the drugs over the border, if only she were permitted to do cross.  Those actions were more than merely preparatory and that being the case, she was, on this residual approach, guilty of an attempt to export the drugs.

14.  As for sentence, it was contended that given the last minute discovery by the applicant of the fact that she (still) had the drugs in her possession, culpability was low for which reasons resulting sentence was excessive.  We did not agree with that submission.  On the facts admitted by her acceptance of the statement of facts and by her legal representative, she intended to cross the border knowing full well that she had drugs hidden upon her.  The trafficking of drugs to and from Shenzhen – even if only for the purpose of self consumption there at parties or otherwise – is a menace and we saw nothing erroneous in the approach taken by the sentencing judge. 

15.  For these various reasons the applications were dismissed.