HKSAR v. BALACHAWE RUFINA UMANGAL

CACC208/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 208 OF 2008

(ON APPEAL FROM HCCC NO. 86 OF 2008)

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J U D G M E N T

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Hon Barnes J (giving judgment of the Court) :

1.  The applicant, a Philippines national, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  She pleaded guilty before a magistrate and was committed to the High Court for sentence.  On 20 May 2008 Deputy High Court Judge Geiser adopted a starting point of 24 years and, after giving the applicant the usual one-third discount for her plea, sentenced her to 16 years’ imprisonment.

2.  The applicant now applies for leave to appeal against sentence.

Summary of facts

3.  The facts admitted by the applicant disclosed that she arrived at the Hong Kong International Airport from Mumbai and was intercepted by a Customs Officer at the arrival hall.  X-ray showed there was something suspicious inside the applicant’s luggage.  Search of the luggage revealed a packet of dangerous drugs — later confirmed to be 1.99 kilogrammes of a mixture containing 1.45 kilogrammes of heroin hydrochloride — concealed inside the suitcase.  The estimated retail price of these drugs was in excess of HK1.3 million.

4.  The applicant denied knowledge when she was arrested for trafficking in a dangerous drug.  In a video-recorded interview she still denied knowledge of the dangerous drug found in her luggage.  What she told the Customs Officer who conducted the interview was that she came to know a man called Ik in Guangzhou and agreed to go to India to escort Ik’s wife to Guangzhou.  She was given money by Ik for her accommodation and Ik organized and paid for the passage.  She was given the suitcase by Ik in Guangzhou and she brought the suitcase from Guangzhou to India via Nepal and then to Hong Kong.  She was not aware that dangerous drugs were inside the suitcase.

Plea and mitigation

5.  Despite her earlier denial, the applicant pleaded guilty before a magistrate and was committed to the High Court for sentence where she confirmed the summary of facts again before Judge Geiser.

6.  In mitigation, the judge was told that the applicant was 42 years of age, married but her husband and 4 children were in the Philippines.  The judge heard that the applicant had worked hard all her life and had led a law-abiding existence.  The applicant in a letter also explained to the judge why she was in Guangzhou, and her wish to go to the United Kingdom to earn and remit more money back to the Philippines.

Reasons for sentence

7.  After telling the applicant that it gave him “absolutely no pleasure whatsoever to have to sentence” her and that she was “clearly a decent person who [had] fallen prey to the villains of the underworld who [had] callously used [her] to do their dirty” work, the judge said this:

“The stark reality, however, is that when you were intercepted by the Customs at the Hong Kong International Airport, you had in your possession 1.45 kilograms of heroin hydrochloride, the market value of which was well over HK$1.3 million.

The sentencing guidelines are set down in R v Lau Tak Ming & Others [1990] 2 HKLR 370 are clear in that for quantities over 600 grammes the starting point is upwards of 20 years’ imprisonment.  You had over twice that quantity on you when you went through the border.

I adopt a starting point on sentence of 24 years’ imprisonment.  I will discount that by one-third to give you credit for your pleas of guilty, coming to 16 years’ imprisonment.”

Grounds of appeal

8.  In her homemade written grounds of appeal, the applicant asked the court to reduce her sentence.  She said when her husband went to work at night, her two young children were left alone.  Further, her two older children are away from home, pursuing university studies in the city.  Her husband’s meagre income is not enough to support the needs of the family.  The applicant asked for a reduction of her sentence.

9.  In court, the applicant tendered two long letters detailing her distressed situation when her application for a visa to work in London did not work out and how she yielded to the temptation and committed this serious offence.  She is deeply remorseful and begged for mercy.

Discussion

10.  This is not the first time an applicant has prayed in aid family and/or personal circumstances to ask for a reduction in sentence.  Where serious offences are concerned, family and/or personal hardship is not normally a factor to be taken into consideration.

11.  It is only in exceptional circumstances that family and/or personal hardship may be a relevant factor to be considered.  We have considered the applicant’s plea.  Her family and personal circumstances, though sad, are not exceptional as to warrant a reduction in sentence.  The applicant was given the full one-third discount upon her plea.  What we have to look at is whether the starting point adopted by the judge was a proper one.

12.  According to the guidelines set down in Lau Tak Ming (supra), for trafficking over 600 grammes of heroin (i.e. very large quantity), there could be “an upward increase in the ‘cut-off sentence’ [i.e. 20 years]… bearing in mind that the maximum sentence provided for by the legislation is life [imprisonment]”.

13.  There was no attempt to further categorise the appropriate length of sentence in relation to the quantity above 600 grammes until the Court of Appeal set down new guidelines in HKSAR v Abdallah Anwar Abbas CACC304/2008.  As that judgment was delivered on 12 March 2009, the new guidelines do not apply in the present case as they do not have retrospective effect. 

14.  In R v Ho Chi Ming [1995] 2 HKCLR 29, the applicant was found carrying 1,213 grammes of salts of esters of morphine at the Departure Lounge of Kai Tak Airport.  The applicant pleaded guilty to trafficking in a dangerous drug and was sentenced to 17 years’ imprisonment.  On appeal, the court rejected the applicant’s contention that the 25-year starting point adopted by the judge was too high.

15.  It is trite law that an “international element” in trafficking constitutes an aggravating factor : see Lau Tak Ming (supra) and HKSAR v Hong Chang Chi [2002] 1 HKLRD 486.

16.  In the present case, the amount of drugs involved (1.45 kilogrammes of heroin) is substantial.  There was also the aggravating feature of an international element.  The fact that the applicant is of clear record and being a foreigner weighs very little when being sentenced for such a serious offence : see Hong Chang Chi (supra).

17.  The starting point of 24 years adopted by the judge is not manifestly excessive or wrong in principle.

Conclusion

18.  For these reasons, we refuse the application for leave to appeal against sentence.