HKSAR v. RAJESWARY SUPPIAH

CACC 39/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 39 OF 2016

(ON APPEAL FROM HCCC NO. 266 OF 2011)

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Reasons for Judgment of the Court) :

INTRODUCTION

1.  The applicant was sentenced to 14½ years’ imprisonment by Deputy High Court Judge A Wong, as Wong J then was (“the Judge”), on 1 March 2012 following her plea of guilty on 29 February 2012, to a single count of trafficking unlawfully in a dangerous drug, namely 3.81 kilogrammes of methamphetamine hydrochloride (commonly known as ‘Ice’), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  By way of a notice (Form XI) and an affirmation both filed on 11 February 2016, the applicant sought leave to appeal against the sentence out of time.

3.  On 15 February 2017, after hearing the applicant, we refused to grant the applicant an extension of time to appeal against sentence.  We now hand down the reasons for our judgment.

PROSECUTION CASE

4.  The prosecution case as contained in the admitted facts may be summarised as follows.

5.  The applicant flew to Hong Kong from Accra, Ghana via Addis Ababa on 26 February 2011.  She was due to leave on 27 February 2011 on a booked flight, flying from Hong Kong to Phnom Penh, Cambodia.  She was however stopped by customs officers in the transit area of the Hong Kong International Airport.  She was then taken to identify a suitcase which she had checked in.  The suitcase was locked with a padlock.  It was opened by the keys in the applicant’s possession.  After the suitcase was emptied, a packet wrapped in brown plastic paper was found to be concealed underneath the cloth at its bottom.  The packet contained a crystalline substance which was later confirmed to be 3.94 kilogrammes of a crystalline solid containing 3.81 kilogrammes of ‘Ice’.  Its then street value was estimated at about HK$2.5 million. 

MITIGATION

6.  Mr Chandler for the applicant submitted on her behalf that the significant mitigation was her guilty plea.  Attention was also drawn to her foreignness and her clear record.

7.  Mr Chandler also submitted that the applicant played a very low role in the drug trafficking activity in question.  She was enticed by a man whom she believed would marry her and went to Ghana to see his family.  In Ghana her suitcase was taken from her and, initially unbeknown to her, the drug was inserted within the false compartment.  She was an unwilling participant and was not doing so for any rewards, although it was accepted that she knowingly carried the drug into Hong Kong. 

8.  Mr Chandler pointed out that whilst it was technically an importation into Hong Kong, the drug was intended to be imported and used in Cambodia.  He invited the court to assess the starting point at around 20 years, citing AG v Ching Kwok Hung.[1]

REASONS FOR SENTENCE

9.  Concerning the submission that the drug concerned was not intended to be spread in Hong Kong, the Judge quoted what Silke VP had said in AG v Pedro Nel Rojas :[2]

“ ...the fact that the respondent did not intend to spread the drugs in Hong Kong was irrelevant. To consider as mitigation that they were not intended for local consumption is to ignore the international aspect of the drug trafficking trade.”[3]

10.  The Judge also pointed out that foreigners serving an imprisonment term in Hong Kong would play little part in mitigation in serious offence like trafficking in dangerous drugs.[4]

11.  Having referred to the cases including HKSAR v an unknown person alias Stojanovic Milka and Skopljak Sara[5] and HKSAR v Lee Sin Seang,[6] the Judge adopted an ultimate starting point of 22 years’ imprisonment after adding an enhancement of 18 months for the international element.[7]  Adopting one-third guilty plea reduction, the Judge sentenced the applicant to 14½ years’ imprisonment.

12.  The sentence passed by the Judge on the applicant is well supported by authority and there can be no complaint whatsoever that it is manifestly excessive.  As a matter of fact, that was not what the applicant sought to argue before us.

THE APPLICANT’S SUBMISSIONS

13.  In her affirmation dated 5 February 2016, the applicant stated that she made the application out of time :

“ ...because my health in now not good and I’m the one suffer for pain. And I don’t have family and anybody take care of me when I finish my sentence. Please I need help now.”

14.  Further, by way of subsequent letters of various dates[8] the applicant submitted :

(a)   that she was in poor health condition,[9] and that, having lost her family she wanted to go home to take care of her own health;[10]

(b)   that she was facing difficulty to live in Hong Kong as a foreigner, including the climate and lifestyle, and she complained about the food provided in custody;[11] and

(c)   that she was being lured by her boyfriend to be a drug mule with her full story stated, including: how they met when she was desperate after losing her family in a car accident, how she was being brought to Ghana and met the man’s “family” after they decided to get married, and how she was being innocently used by the man’s “brother” to bring the luggage with the drug.  She attached copies of photographs of the said boyfriend and “his family”.[12]

15.  The applicant relied on a medical report dated 20 June 2016 prepared by Dr Sze Hip-shing, Medical Officer of Lo Wu Correctional Institution (“the Medical Report”), attached to her letter of 8 August 2016.  There, Dr Sze stated :

(a)   ulceration over her breasts since 2013 (after treatment, she was last followed up on 15 June 2016);[13]

(b)   irregular menstrual cycles problem (followed up since 2013);[14]

(c)   right spigelian hernia[15] (emergency repair of the hernia was performed on 14 June 2015); and

(d)   the surgical wound of the operation of (c) above not healing satisfactorily (gapping and infection which was treated on 15 February 2016 by QEH Accident and Emergency Department and became stable, further follow up was scheduled). 

16.  The applicant also referred to a letter dated 31 August 2016 from Fr John Wotherspoon, attached to her letter of 8 September 2016, which stated that the applicant had suffered from terrible depression which had seriously affected her physical health; causing her to have great difficulty taking part in work or recreational activities.  Fr Wotherspoon asked the court to show compassion to the applicant.

DISCUSSION

17.  In considering whether leave should be given to appeal out of time, the Court of Appeal looks at :

(a)   the length of the delay;

(b)   the reasons advanced for the delay;

(c)   the bona fides of the application;

(d)   the grounds of the appeal to see whether, by refusing leave, the Court is shutting out a substantial and plainly arguable ground of appeal.

18.  Here, the length of delay is about 3 years 10 months.  The delay is on any view very lengthy.  The applicant has not stated any reasons to explain the delay in her written materials.  At the hearing before us, she told us that before she took out the present application, she did not know what to do.  She wanted to get a witness.  She did not have any communication with any people that she knew.  She did not get any advice.  She was confused.  None of these matters, however, constituted any reasonable explanation for the inordinate delay.

19.  We had also considered the applicant’s grounds of appeal to make sure that if leave were to be refused, the Court would not be shutting out a substantial and plainly arguable appeal.  The applicant relied on her health condition since imprisonment and the difficulty she found herself in as a foreigner in prison.  However, neither “ill-health” nor “foreignness” is a ground for reducing sentence, let alone a ground of appeal against sentence.

20.  This Court has said on numerous occasions that ill-health will rarely be a mitigating factor that can be properly taken into account when determining the appropriate sentence.  Except in the rarest cases, a prisoner’s medical condition is not a matter to which the court will have regard for mitigation of a proper sentence, though it may well be a matter for the executive if brought to their attention and deserving of consideration.  See, for example, HKSAR v Lkhaijav Bayanmunkh.[16] Similarly, where an accused who was imprisoned had developed a serious illness since the passing of sentence, the proper channel of petition for clemency should be made to the executive authorities rather than the court, see HKSAR v Law King Yip and others.[17]  On the facts of the present case, there was no reason why the general principle stated above did not apply to the applicant even after taking into account her health condition before and after imprisonment.

21.  We noted in passing that according to the Medical Report, the applicant has been receiving proper treatment from the Correctional Services Department and there is no risk that the applicant would be spending her remaining term in prison without proper medical attention or treatment.

22.  As to “foreignness”, it carries little, if any, weight for reducing the applicant’s sentence.  As this Court said in HKSAR v Hong Chang Chi :[18]

“ 21. The Applicant only came to Hong Kong for the purpose of furthering his criminal enterprise. Anyone who acts in this way, to undermine the laws of Hong Kong, deserves no sympathy. ...

22. ... Drug traffickers from abroad, importing drugs into Hong Kong, should plainly understand that they will receive no sympathetic consideration whatsoever on account of their status as foreigners or, as in this case, on account of their incarceration some distance from home. On the contrary, in cases of this kind, the very act of importation from abroad, is an aggravating factor. Those who live outside this jurisdiction, such as the Applicant in the present case, must be disabused of any notion that Hong Kong is anything other than resolute in dealing with such offences.” (Emphasis added)

23.  At the hearing before us, the applicant took a further point.  She said that she trusted her boyfriend and was tricked into carrying the dangerous drugs into Hong Kong.  She did not know that the suitcase contained the dangerous drugs until it was opened by the customs officers at the Hong Kong Airport.  What she said was contrary to her plea of guilty before the Judge, the basis of her conviction and what was advanced on her behalf by Mr Chandler in mitigation.  We declined to entertain that allegation as a possible ground of appeal against sentence.

24.  We failed to see any merit in the applicant’s grounds of appeal.

CONCLUSION

25.  For the above reasons, we refused to grant the applicant an extension of time to enable her to appeal against sentence out of time.