HKSAR v. KUO YAO CHUNG AND ANOTHER

CACC70/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 70 OF 2008

(ON APPEAL FROM HCCC 288 OF 2007)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1. On 30 January 2008, the applicants were convicted on their own pleas before DHCJ Lugar-Mawson of separate offences of trafficking in heroin, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The 1^st applicant was convicted of trafficking in 603.05 grammes of the drug and the 2^nd applicant of trafficking in 669.06 grammes.   The judge in sentencing each applicant took, in accordance with the guidelines set out in R. v. Lau Tak Ming and Ors. (1990) 2 HKLR 370 at 387, a starting point of 20 years’ imprisonment.  He reduced that to a sentence of 13 years’ imprisonment given their pleas.  He found no other mitigating circumstances.  Each applicant now seeks leave to appeal his sentence.

2. The facts of the case were straightforward.  Both applicants are Taiwanese nationals.  They had collected the drugs in Phnom Penh and there divided the drugs up between themselves, and secreted them on and in their bodies.   They then flew to Hong Kong on the same flight and were arrested together at Hong Kong International Airport upon their arrival.  Under caution both applicants admitted bringing the drugs to Hong Kong from Phnom Penh.

3. The applicants are unrepresented before us and each complains simply that, given his harsh economic and financial circumstances in Taiwan, he was forced to act as a drug “mule”.  Each points to this being his first offence; the 1^st applicant also seeks leniency on the basis of the suffering caused to his family by his imprisonment and his suffering from long term diabetes and the 2^nd applicant puts forward the fact that they were in transit with the drugs through Hong Kong to the Mainland when arrested.

4. None of the matters advanced by either applicant could amount to mitigation.  Their economic and family circumstances fall far short of triggering any humanitarian considerations, and their status as first offenders in Hong Kong is of no consequence to sentence given the volume of drugs involved.  That the applicants may have intended to transport the drugs to Zhuhai on the Mainland and not dispose of them within Hong Kong is not a mitigating factor : See Attorney General v. Pedro Nel Rojas [1994] 1 HKC 342.  We might add that taking into account the international dimension of the offences the starting point of sentence taken by the judge may be considered lenient.

5. There is no merit to either application and both are dismissed.