HKSAR v. SARKUNA

CACC239/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 239 OF 2002

(ON APPEAL FROM HCCC NO. 75 OF 2002)

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and

CACC342/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 342 OF 2004

(ON APPEAL FROM HCCC NO. 10 OF 2004)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1. There are two applications before us which have been consolidated because they raise the same point, namely, whether a judge sentencing an immigrant or visitor ought to take into account the fact that such a defendant is unlikely to be released under supervision pursuant to the provisions of the Prisoners (Release Under Supervision) Ordinance Cap. 325 (“the Ordinance”), even if statutorily eligible, whereas his Hong Kong permanent resident counterpart does not suffer that practical disadvantage.

Sarkuna

2. The applicant Sarkuna was charged upon an indictment containing, as against him, two counts: first, that he and another on 4 September 2001 at the Departure Hall of the Hong Kong International Airport unlawfully trafficked in a dangerous drug namely 3,889.43 g of a crystalline solid containing 3,868.36 g of methamphetamine hydrochloride (ICE); and, second, that he alone on the same date and at the same place unlawfully trafficked in 13.22 g of mixture containing 11.33 g of cocaine.  To both these counts he pleaded guilty before a magistrate and was sentenced by Bokhary J on 6 May 2002 to a total of 17 years’ imprisonment.  He applied for leave to appeal that sentence but then abandoned the application in July 2002.  However he sought to revive the application and for reasons delivered by this Court in a judgment dated 11 January 2011, this Court, differently constituted in part, treated the abandonment as a nullity as a result of which ruling his application is now before us.

3. Sarkuna is a national of Indonesia.  He and the other defendant in his case, also a resident of Indonesia, arrived in Hong Kong on 3 September 2001 and went to a hotel in Tsim Sha Tsui where they were supplied with drugs which they strapped to their respective bodies.  Eight plastic bags were strapped to the other man’s body and they contained 1,996.64 g of ICE and seven bags were strapped to this applicant’s body with 1,871.72 g of ICE.  But, in addition, this applicant was given a plastic packet which he placed inside his jacket pocket and that contained the quantity of cocaine.  They checked out from the hotel and were duly arrested at the airport intending to export this substantial quantity of drugs.

4. In relation to the other defendant, the judge took a starting point of 25 years’ imprisonment for the first count, gave a discount of slightly more than the usual one-third to take into account the plea of guilty and some suggested co-operation with the police, thereby arriving at a sentence in his case of 16 years’ imprisonment.

5. In relation to this applicant, she adopted the same approach in relation to count 1, sentencing him to 16 years’ imprisonment.  However, in relation to count 2, she took a starting point of 5 years’ imprisonment and reduced that to 3 years’ imprisonment to take into account his plea of guilty and his suggested co-operation with the police and ordered one year of that term to run consecutively to, the remainder concurrently with, the term of 16 years’ imprisonment, making a total of 17 years’ imprisonment.

Matsuda

6. Matsuda is a national of Japan.  He was charged upon one count of an indictment, together with another, that on 4 July 2003 at the Hong Kong International Airport, he unlawfully trafficked in a dangerous drug, namely 2.51 kg of a crystalline solid containing 2.50 kg of methamphetamine hydrochloride (ICE).  He pleaded guilty before Mr Recorder C Y Wong, SC on 7 July 2004 and was sentenced to a term of 14 years 8 months’ imprisonment.

7. The facts in his case were that he and his female co-defendant had checked in for a flight to Japan but a bag which the applicant was carrying and which he suggested contained soap in fact contained the drugs in question.

8. The Recorder took a rather low starting point – low, given the quantity and the international element – of 22 years’ imprisonment and reduced that, on account of the plea, to a term of 14 years 8 months’ imprisonment.

9. This application is substantially out of time, the reasons for which are explained by the applicant in papers which he has put before the court.  No point is taken by the respondent in relation to the time issue, no doubt because of the primary point of law common to both these applications. 

The Release under Supervision issue

10. The Ordinance in question makes provision for two forms of early release, namely, a release under supervision scheme and a pre- release employment scheme.

11. Section 7(1) and (2) of the Ordinance provide as follows:

“(1) The Chief Executive may, if the Board so recommends, order that a prisoner who-

(a) is serving a sentence of imprisonment of 3 years or more (other than imprisonment for life); and

(b) has served not less than one-half or 20 months of that sentence (whichever is the greater),

be released from that imprisonment and be subject to supervision under this Ordinance.

(2) The Chief Executive may, if the Board so recommends, order that a prisoner who-

(a) is serving a sentence of imprisonment of 2 years or more (other than imprisonment for life); and

(b) is within 6 months of the expiry of his imprisonment (taking into account remission under the Prison Rules (Cap 234 sub. leg. A)),

be released from that imprisonment subject to supervision under this Ordinance, and be required whilst under such supervision to reside in a hostel and, as far as practicable, to obtain and remain in employment whilst so residing.”

12. The Board to which reference is there made is the Release under Supervision Board established by section 3 of the Ordinance which, according to that statutory provision, shall consist of no less than five members including, as chairman, a person who holds or has held judicial office, a medical practitioner with experience in psychiatry and a person with experience of or an active interest in the rehabilitation of offenders.

13. A supervision order under section 7(1) will be subject to conditions such as requirements relating to residence, employment, and reporting to a supervising officer.  An order under section 7(2) will contain a condition of residence in a supervised hostel and conditions relating to obtaining and remaining in employment.

14. Section 7(4) of the Ordinance specifies those who are not eligible for either scheme and that includes any person who is “subject to a removal order or a deportation order made under the Immigration Ordinance Cap. 115”.

15. It is unnecessary for present purposes to go into the detail of those who might be subject to a removal or deportation order but, put very broadly, a removal order may be made against persons falling within categories specified by section 19 of the Immigration Ordinance and they include those classified as undesirable immigrants who have not been ordinarily resident in Hong Kong for three years or those who have landed unlawfully; and a deportation order may be made under section 20 of the Immigration Ordinance against an immigrant (defined by section 2(1) as a person who is not a Hong Kong permanent resident) who has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years or in respect of whom the Chief Executive deems it to be conducive to the public good to make such an order.

16. It follows that unless and until a removal or deportation order is made an immigrant or visitor who is a prisoner is entitled, if otherwise he falls within the categories covered by section 7(1) and (2) of the Ordinance, to make an application for early release under supervision.

17. In a most helpful submission by Mr Hui on behalf of the respondent, we are informed that upon a prisoner’s admission to a correctional institution, he or she is provided with an information booklet about the release under supervision schemes and that for those who are eligible for the release under supervision scheme an application may be made six months prior to the earliest date upon which they might be released under the scheme and for those who are eligible for release under the pre-release employment scheme, an application may be made within 12 months of the earliest date of discharge.  We pause to comment that the booklet, a copy of which has been provided to us, is potentially misleading in that it specifies amongst those not eligible for either scheme “those who are held under the Immigration Ordinance provisions or who will not be allowed to remain in Hong Kong after serving a sentence.”  The phrase which we have there emphasized is not quite accurate, for eligibility to apply does not depend upon the prospect of being allowed to remain in the long-term but upon whether a removal or deportation order is, at the time of the application, already in place.  Those with responsibility for preparing the booklet will wish to re-examine the wording of that representation.

18. Upon submission of an application, investigations are then carried out designed to ascertain suitability for rehabilitation through either scheme.  This is likely to include a home visit to verify the prisoner’s family background and, where applicable, to contact a potential employer to confirm the availability of the proposed employment.

19. In determining whether to make a recommendation for release under either scheme, the Board is required, pursuant to the Prisoners (Release under Supervision) Regulations, to study the various reports that are specified and to take into account a list of factors particularised under the First Schedule to those Regulations which will include the applicant’s family circumstances; where he proposes to reside on release; and his conduct during any previous period on probation, care, supervision or licence.

20. Breach of a supervision order is an offence for which the offender is liable to a further term of imprisonment of up to 12 months and for which breach a supervision order may be revoked and the prisoner re-imprisoned to serve the remainder of the imprisonment imposed in respect of the original offence: see sections 13 and 14 of the Ordinance.  We have been provided with figures for the prison population as at 4 March 2011 and there is a sizeable proportion composed of non-Hong Kong residents.  The numbers of applications for release under supervision in respect of either scheme are relatively small and far from all of those applications are approved.

21. In respect of deportation orders, the usual course is for the process to be instigated by the Director of Immigration towards the end of a prisoner’s effective term of imprisonment; normally, we are told, about three months prior to the prisoner’s earliest date of discharge from prison.

22. Whatever the theory of the matter, it can readily be seen why a prisoner who is a mere visitor is unlikely to succeed in an application for release under supervision even though a deportation order has not yet been made.  It is unlikely that a person with no roots in Hong Kong and with a criminal record, to boot, will be permitted to take up employment here or will have, in the case of an application for a s 7(1) order, the kind of stable residential and/or family environment conducive to the making of such an order.

23. Nonetheless, we are satisfied that it would be inappropriate for a sentencing court to take into account, when sentencing, the assumed practical non-availability of a supervision order to the offender who falls to be sentenced.  This is because sentencing proceeds upon known facts and a system whereby a non-resident is given some automatic discount because of the supposed disadvantage under which he labours is one that would presuppose that all other prisoners, provided the term imposed is at least three or two years as the case may be, are in fact routinely released early under one of the two schemes; a supposition which would be wholly erroneous.  Release under either scheme is a question of discretion to be considered according to a prisoner’s suitability at the time of eligibility; suitability that cannot possibly be predicted at the time of sentence.

24. The point we make is an echo of the point made elsewhere, albeit in different statutory contexts.  In R v Abdullah Al-Buhairi [2004] 1 Cr App R (S) 83 p 496, the appellant was a citizen of Saudi Arabia convicted of conspiracy to handle stolen goods.  It was argued on his behalf that since as a foreign national he would not be considered for the home detention curfew scheme available under the relevant legislation, his sentence should be reduced to reflect that fact.  Hallett J (as she then was) said in this regard, at p 499:

“We ask ourselves ... whether or not it is incumbent upon a sentencing judge to reduce what would otherwise be a perfectly proper sentence because he may or may not be eligible for early release under this new administrative procedure. We remind ourselves that release on home detention curfew is a matter for the discretion of the governor of the relevant prison. He or she is charged with the responsibility of assessing the circumstances of each case of each prisoner and then coming to the decision as to whether or not to release. Plainly the governor must exercise that discretion rationally and reasonably. But it is not the case that necessarily all foreign nationals will be excluded from the scheme: it will depend upon their circumstances. There is no certainty as to the release of any particular prisoner, whatever their nationality. The governor is obliged to carry out a risk assessment and decide whether or not it is likely the prisoner will complete the period of curfew successfully.

Having considered all those matters we are satisfied that this is far too speculative an area and basis upon which this court should direct sentencers to proceed.  It would leave sentencing judges all over the country in an impossible position when asked to speculate as to when any particular accused person may or may not be released under this scheme.  Accordingly we are not persuaded that the sentence is excessive.  Similarly we are not persuaded that it would be appropriate in the circumstances of this case to make any allowance for the fact that this appellant will not benefit from this procedure.”

25. All prisoners liable to a removal or deportation order are, by virtue of the provisions of the Ordinance, eligible for release under supervision unless they are subject to a removal or deportation order; although we recognise that the chances of such an order in favour of those non-residents who are not subject to such an order is likely, in practical terms, to be remote.  That said, the chance of success of resident applicants is far from assured and the figures suggest that the success rate is relatively low.  It would be an exercise in speculation and one also based upon a false premise to permit sentencers to take into account the lack of availability in practice of release under supervision to non-residents.

26. This ground does not therefore avail either applicant.

The consecutive sentence

27. The applicant Sarkuna complains that the sentence for count 2 in his case, that is, the sentence for trafficking in the quantity of cocaine, ought to have been ordered to run concurrently because if one treats the quantity of cocaine as if it too were ICE, the total quantity of all drugs carried by this applicant would still fall within the band which the judge adopted for the first count; and reliance is placed on the thinking in HKSAR v Yip Pik Kwai [1999] 3 HKLRD 42.  Counsel for the respondent has drawn to our attention some recent authority, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, which suggests that there may be cases where it is appropriate to take what is there called an individual approach rather than the combined approach suggested by Yip Pik Kwai; and he points out that this applicant was given the cocaine as a package quite separate from the ICE strapped to his body and that the other accused person was not in possession of any cocaine.

28. In our opinion the sentencing judge took too technical and artificial an approach.  Given the massive quantity of ICE in the possession of this applicant; the very large sentence which trafficking in that quantity attracted; the relatively small amount of cocaine – relative, that is, in relation to the amount of ICE; the fact that the combination of the two, had they been treated as one, would make no difference to the sentence – given these factors, an additional one-year sentence was not, in our judgment, justified.

Conclusion

29. Accordingly, in the case of Sarkuna, we grant him leave to appeal against sentence, treat the hearing of his application as the appeal, and allow the appeal to the extent only that we order the three-year sentence on count 2 to run concurrently with a 16-year sentence on count 1; making a total in his case of 16 years’ imprisonment.

30. The application for leave to appeal in the case of Matsuda is dismissed.