HKSAR v. CHAN PO WAH AND ANOTHER

CACC 179/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 179 OF 2012

(ON APPEAL FROM HCCC NO. 322 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1.  On 24 April 2012 both applicants pleaded guilty before Line J to separate counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The count in the indictment relating to the 1^st applicant charged her with trafficking in 1,530 grammes of a crystalline solid containing 1,500 grammes of methamphetamine hydrochloride.  The other count in the indictment to which the 2^nd applicant pleaded guilty charged her with trafficking in 1,530 grammes of a crystalline solid containing 1,520 grammes of methamphetamine hydrochloride.  This drug is commonly known as ICE.  The judge imposed sentences of 16 years and 8 months’ imprisonment on both applicants.  Both applicants now seek leave to appeal their sentences.

2.  At the hearing we allowed the application for leave to appeal against sentence, treated the application as the hearing of the appeal, quashed the sentences imposed by the judge and in substitution, therefore, imposed sentences of 15 years and 4 months on both applicants.  These are our reasons for so doing.

The Circumstances of the Offences

3.  Both applicants were arrested at the Hong Kong International Airport as they were checking-in for a flight to Sydney, Australia.  When they were searched it was found that a number of packets of ICE had been fastened to the thighs and shins of both applicants.  When cautioned the 2^nd applicant admitted that she and the 1^st applicant had had the ICE affixed to their legs in a hotel room in Mongkok and from there they had travelled together to the airport to take the flight to Australia.

4.  Upon later analysis the packets suspected to be dangerous drugs were found to contain the quantities of ICE as particularised in the charges.  The total quantity of ICE was 3,060 grammes and it had a total value of HK$2,264,400.

The Mitigation Advanced at Trial

5.  On behalf of the 1^st applicant it was said that she was a mere courier, not the person running the enterprise.  Although she had previous convictions for possession of dangerous drugs, she additionally had a much more serious conviction for trafficking in dangerous drugs.  This dated back to 1998 when she had been sentenced by a judge of the High Court to 15 years’ imprisonment.  She was extremely remorseful for her present offence and regretted the way in which she had wasted her adult life.  It was claimed that she had a very poor relationship with her father and grew up in the absence of parental love and this caused her to suffer an inferiority complex.  On the last occasion that she was in prison for possession of dangerous drugs it was said that she resolved not to have any further involvement with drugs but when she left prison she had nowhere to live and no support from her family as by then her mother had passed away.  As a result she was tempted into participating in this offence.

6.  The 2^nd applicant, on the other hand, does not enjoy the excuse of a poor family background although it is said that her brother was favoured within the family and as a result she became rebellious and this led to her moving out from the family home at the age of 15.  However, after her arrest for this offence she has reconciled with her family and now regrets very much the criminal conduct on which she embarked.  It was said that the family will be supportive of the 2^nd applicant after her release from prison and a letter which was written by the 2^nd applicant’s parents was produced to the sentencing judge.  In respect of the 2^nd applicant’s role in the offence it was, like the 1^st applicant, one of only a courier.  The 2^nd applicant has a number of previous convictions for possession of dangerous drugs, commencing from early adulthood.  She has no conviction for trafficking in dangerous drugs and her most serious sentence was a period of 8 months’ imprisonment.  On other occasions she has simply been fined or committed to a Drug Addiction Treatment Centre (“DATC”).

7.  It was said that her present offence came to be committed because upon her release from DATC she was able to obtain only part-time work and without a stable job she lacked sufficient money to support herself.  She was, in these circumstances, easily tempted into agreeing to participate in this offence.

8.  Like the 1^st applicant, the 2^nd applicant was also extremely remorseful and fully cooperated with the police.

The Reasons for Sentence

9.  Notwithstanding that the 1^st applicant had a previous conviction for trafficking in dangerous drugs for which she had been sentenced to 15 years’ imprisonment, the trial judge decided to treat both applicants in the same way.  There is no doubt that their culpability for the offences of which they were now being convicted was identical.  They had both been recruited by the same drug trafficking syndicate, both were to perform the role of couriers, and both were to transport approximately the same quantity of drug and the same type of drug.

10.  In sentencing the applicants, the trial judge said:

“You will know perfectly well that the sentence is based on guidelines and that you fall into a guideline that runs from 1,200 grammes to 4,000 grammes, attracting a starting point after trial of 23 to 26 years’ imprisonment. Given your role as couriers and the general circumstances of you both, I shall put you at the bottom of that bracket.”

11.  The judge, thereupon, took an initial starting point of 23 years’ imprisonment for both applicants which he then enhanced to 25 years’ imprisonment to allow for the aggravating feature of an international element. Finally, he discounted the 25 years by one third to allow for the plea of guilty, thereby arriving at a final sentence for each applicant of 16 years and 8 months’ imprisonment.

12.  He then went on to consider whether he should increase the sentence in respect to the 1^st applicant in order to make allowance for her previous conviction for trafficking in dangerous drugs.  He concluded that her criminal history did not justify the conclusion that she was a persistent offender and, therefore, was not persuaded that he needed to increase the sentence on her for the purposes of making allowance for her repeated offending.  He also had regard to whether in imposing the same sentence on both applicants the 2^nd applicant could justifiably feel a sense of injustice at receiving the same sentence.  He concluded that she could not.

13.  Having taken into account everything that had been said in mitigation he concluded that there was nothing in the circumstances of each offender that was so exceptional as to justify him imposing any lesser sentences on them than those on which he had already determined.  Accordingly, he sentenced each of the applicants to 16 years and 8 months’ imprisonment.

The Grounds of Appeal

14.  There are three grounds of appeal all of which are common to both applicants.  The first ground of appeal is that the judge erred in adopting a starting point which was manifestly excessive in respect of the type and quantity of dangerous drugs that each applicant was couriering.  The second ground of appeal is that the trial judge erred in equating sentences for trafficking in larger quantities of ICE with those for heroin.  The final ground of appeal is that as a result of the errors made that had been identified in the first and second grounds of appeal, the sentences imposed on the applicants were manifestly excessive.

Discussion

15.  The error identified in the first ground of appeal in effect flows from the error that was committed in the second ground of appeal and so, sensibly, counsel for the applicants has focused on that ground of appeal in support of their applications.

16.  The second ground of appeal is based upon an assumption that the judge used the tariff guidelines laid down by the Court of Appeal in the case of HKSAR v Abdallah [2009] 2 HKLRD 437.  This case is sometimes referred to as the case of Abbas as it is reported in the Hong Kong Cases law reports under the name of Abdallah Anwar Abbas at [2009] 2 HKC 197.  In this case the Court of Appeal laid down tariff guidelines for the sentencing of persons convicted of trafficking in quantities of heroin and cocaine.  For these two drugs the court said that where quantities of 1,200 to 4,000 grammes were being trafficked the appropriate sentencing range is 23 to 26 years’ imprisonment.  In his Reasons for Sentence, the judge referred to this sentencing range in the passage already quoted.  In the course of counsel for the 1^st applicant advancing her mitigation, the trial judge said:

“Thank you very much. Just before you sit down, let me just make sure we are on the same wavelength. She falls into the category of Abbas – I know Abbas was a heroin case – of 1,200 grammes to 4,000 grammes, which is 23 to 26 years, isn’t it, for a starting point?”

17.  Counsel for the 1^st applicant appears to have agreed with this proposition, and certainly did not dissent from it.  After she completed her submissions, counsel for the 2^nd applicant then commenced his mitigation, at the conclusion of which he said to the judge:

“I am sure that your Lordship knows very well the sentencing guideline and tariff which I will not bother you.”

18.  Consequently, in the course of the mitigation being advanced on behalf of the applicants there was never at any stage reference to the decision of the Court of Appeal in Attorney v Ching Kwok-hung [1991] 2 HKLR 125 which laid down sentencing guidelines for the drug ICE.  The appropriate guideline for the quantities involved in this case is that which says that for quantities over 600 grammes the sentence should range from 18 years upwards.

19.  It is unclear whether the judge thought that he could use the heroin guideline for ICE or whether he thought that it applied also to ICE.  Either way it was simply an inappropriate guideline to employ when sentencing for this drug.  The reason the Court of Appeal devised specific guidelines for ICE was because there were a number of differences between the nature and use of the two drugs which made it inappropriate to apply or adapt the heroin guideline to ICE.  Of course, since the guidelines were laid down in HKSAR v Lau Tak Ming [1990] 2 HKLR 370 they have been revisited in Abdallah specifically to cater for amounts above 600 grammes.  No such review of the ICE guidelines has occurred and so no revision has been taken place in respect of amounts above 600 grammes.  Whether it is now time for this to happen is an issue which will have to be considered on another occasion.  As a consequence of the judge’s error in applying the Abdallah guideline it now falls to this court to sentence the applicants in accordance with the correct guideline.

20.  Counsel for the applicants, Mr James McGowan, referred to a number of authorities which he said provide some guidance as to the sentencing range for quantities of ICE similar to that in which these applicants were trafficking. We received particular assistance, in this respect, from the decision of this court in HKSAR v An Unknown Person alias Stojanovic Milka and Skopljak Sara, unreported, CACC 110/2010.  In that case Stock VP, in giving the judgment of the court, issued the reminder that other sentencing decisions of the Court of Appeal can only be of limited value on sentence appeals.

21.  However, in the case of very large quantities of dangerous drugs for which no sentencing band has been created, other than an open‑ended one, other Court of Appeal decisions can assist a sentencing court in two ways.  The first is to enable the judge to avoid what has been called the danger of mathematical progression where the judge determines sentencing by relating the quantity trafficked by the offender before him to the quantity in the uppermost sentencing band, here 600 grammes.  The risk is that a judge assessing the seriousness of the offence by the fact that the quantity trafficked was over twice the 600 grammes limit, as was the position in the present case, will end up adopting too high a starting point.  By avoiding this danger the sentence is more likely to be proportionate to other sentences for large quantities of drugs.  In dealing with quantities of drugs of the larger kind for which no specific tariff has been laid down proportionality is key to the court’s ability to achieve fairness in its sentences and by so doing acceptance by the offender and those close to him that the sentence is the correct one for the quantity of dangerous drug involved.

22.  The second form of assistance, which flows from the first, is to enable the courts to achieve consistency in their sentences.  Consistency of sentencing is important in all cases but it is especially important in drug cases where so little latitude exists for personalized sentencing and where it is so easy for an offender to feel he has been treated unequally.

23.  These were matters that Stock VP recognized at paragraph 12 in the Milka case but it is well to remember that in the same paragraph he made the very important point that some differences in sentences imposed by different court courts is inevitable.  He said:

“We have been presented with a plethora of decisions designed to show that in other cases of trafficking in drugs in greater or similar quantities, a lower starting point has been taken. It is true that in this category of offence, sentence is very largely based on quantity and whilst it is normally of limited avail in other categories of offence for applicants to point in respect of like offences to sentences by different courts, there is a particular need for consistency in a category of offence when individual mitigation tends, for policy reasons, to count for little, the point made by this Court in HKSAR v Leung Wai Man, CACC 24/2007, 7 December 2009, unreported, para 11. But there is a limit to which this can be taken, for there is a danger of the exercise of comparison getting out of hand with a view to such fine tuning as to denude sentencing discretion of any meaning at all. Some differences between different courts are bound to occur if sentencing is not to be an entirely mathematical exercise.”

24.  Before proceeding to sentence the applicants we should say, for the sake of completeness, that we agree with the judge that a second episode of trafficking is not sufficient to warrant characterising the 1^st applicant as a persistent offender.  Furthermore, the sentence she will now receive will still contain more than enough personal deterrence.  As for the 2^nd applicant she will be sentenced appropriately for her culpability and cannot justifiably complain if her sentence is the same as the 1^st applicant.

25.  Mr Sham, for the respondent, accepted that other sentencing cases for amounts around 1,500 grammes suggested a sentencing range of 21 to 22 years as the appropriate starting point.  He also invited us to have regard to the Abdallah guidelines for heroin as a reference point.  The problem with acceding to this invitation is, as we have pointed out earlier in this judgment, that the Court of Appeal devised guidelines for ICE specifically because it concluded that the guidelines for heroin were inappropriate for ICE.  However, should the Court of Appeal consider that an Abdallah type review of the ICE guidelines is now necessary then that would be the appropriate occasion to decide what, if any, assistance can be derived from the Abdallah guidelines when sentencing for quantities of ICE beyond 600 grammes.

26.  In identifying an appropriate starting point for these applicants Mr McGowan suggested that as some of the cases on which he relied pre‑dated Abdallah and also had an international element we should make allowance in them for the post-Abdallah enhancement.  But pre-Abdallah courts sentenced essentially only on the quantity of narcotic as the presence of an international element was not then regarded as an aggravating feature.  Pre-Abdallah cross-border cases for drug quantities beyond 600 grammes should simply be regarded as providing guidance on a starting point pre-enhancement for the presence of an international element.

Conclusion

27.  Having had regard to the cases to which we have been referred we conclude that a starting point of 21 years is appropriate for both these two applicants.  This should then be increased to 23 years to allow for the enhancement appropriate for the aggravating factor of international trafficking.  The sentence of 23 years should then be discounted by a third to allow for the pleas of guilty.  The resulting sentence is 15 years and 4 months’ imprisonment.