HKSAR v. OWUSU CHRISTOPHER

CACC 25/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 2006

(ON APPEAL FROM HCCC NO. 203 OF 2005)

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REASONS  FOR  DECISION

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Beeson J (giving the Reasons of the Court):

1.  On 25 May 2006 we dismissed the Applicant’s application for leave to appeal and advised we would hand down our reasons at a later date.  Those reasons now follow.

2.  This Applicant pleaded guilty on 5 January 2006, to one charge of Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  He was sentenced to nine years and eight months imprisonment, and his co-defendant, D1, was sentenced to nine years and five months imprisonment.  The Applicant applied for leave to appeal against sentence on the ground that the sentence was manifestly excessive.

3.  The drugs were 503.03g of a mixture containing 390.28g of heroin hydrochloride.  Deputy High Court Judge D Pang considered the Lau Tak Ming guidelines, adopted a starting point of 14½ years, and gave the full one third discount to each of the two defendants for their pleas of guilty.  The judge then reduced the sentence of D1 by a further three months to take into account his offer to give evidence against the Applicant and because he had given a statement in which he recounted the role of the Applicant, albeit that it was made after the Applicant had advised his intention to plead guilty.

Brief facts

4.  The police kept observation on a room at the Harbour Plaza Metropolis hotel and intercepted the Applicant, around 1045 hours, as he left the room carrying a briefcase.  The briefcase was found to contain a scale cover; an electronic scale; three photographs of the applicant; 2 razor blades with traces of white powder; a piece of adhesive tape and $620 Hong Kong dollars in cash.  When police entered the room, they found D1 and a woman inside.  D1 was holding a plastic bag in which was a packet of suspected heroin wrapped in adhesive tape.  A scale was found in a paper bag on the floor.

5.  Analysis by the Government Chemist confirmed the packet contained heroin as set out in the charge.  The razor blades and scale bore traces of ketamine and heroin.  The Applicant’s fingerprint was found on the sticky side of the adhesive tape wrapping the heroin.

6.  The Applicant was represented at plea.  He was aged 31, Ghanaian by nationality and educated to Primary 4 level.  He had no criminal record in Hong Kong, and reportedly none in Ghana.  He claimed he had been cheated by a friend and stranded in Hong Kong, with little money.  A compatriot promised him an air ticket home, and a few thousand dol1ars if he would make a delivery; he found out it was drugs at the last minute.  The judge rejected as incredible, various explanations given by the Applicant as to why his fingerprint was on the adhesive tape.

7.  The judge said he would treat the case as a simple one of drug delivery, involving first level couriers, whose roles he found indistinguishable.  He found no mitigatory factors for the Applicant other than his plea.

Grounds of appeal

8.  The Applicant appeared in person having filed written submissions to support his contention that the sentence was excessive:

(1) He, as a foreign national would suffer greater hardship from his sentence than his co-defendant, because he would not benefit from parole or early release schemes and would be deported at the end of his sentence.

(2) The drug was not found in his physical possession but in that of D1 and D1’s girlfriend.

(3) Despite Dl having 10 previous convictions including one for trafficking, he had been given an extra discount, whereas he, a first-time offender, had not.

(4) Various cases were comparable to his own situation and he prayed them in aid.

9.  At the hearing the Applicant repeated his belief that he had been treated unfairly and expressed his remorse, saying he had resorted to criminal activity because he needed money for his grandmother who was ill.  He complained too, that he had not been allowed to address the court below prior to sentence and believed that if he had been the court would not have passed an excessive sentence.  We note that the Applicant was represented at plea by an experienced, able and conscientious counsel who would have placed all relevant mitigation before the court.  We do not think there is any substance to this complaint.

10.  Three issues are raised by the Appellant’s grounds of appeal;

(1) Is the sentence excessive?

(2) Was the Judge correct in giving a further discount to Dl for his cooperation?

(3) Should an allowance be made on sentence for the Applicant’s ‘foreigness’?

Is the sentence excessive?

11.  The quantity of narcotic in this case was 390.28g which, on the Lau Tak Ming guidelines, brings the SP for sentence into the range of 12 to 15 years (200-400g).  The judge took a SP of 14½ years and discounted that by 1/3 to acknowledge the pleas of guilty.

12.  The resulting sentence of 9½ years is not excessive nor wrong in principle.

Was the judge correct in giving Dl a further discount for his assistance?

13.  The judge treated the Applicant and Dl as equally blameworthy ‘first level couriers’, but took into account Dl’s assistance in making a statement implicating the Applicant and offering to give evidence against him.

14.  This recognition took a token form of 3 months further discount.  It was token of necessity because the applicant had already advised his plea by the time D1 gave his statement and the judge appears to have been told the prosecution would not have used it anyway.  Dl’s assistance would appear to have been unnecessary given the evidence available.

15.  Generally only constructive and fruitful assistance is rewarded by a sentencing court, which has to consider the quantity and quality of the aid given.  Although Dl’ s assistance was not needed as the Applicant chose to plead guilty, some credit may be given because the possibility of D1’s giving evidence may have influenced him to do so.  [HKSAR v Ng Chi Ming Cr App 570/2001].

16.  As miscreants are encouraged as a matter of prosecuting policy, where necessary, to give evidence, against one another to break the bonds of criminal groups and networks, the judge cannot be faulted for making this slight concession, given the length of the sentence.

17.  The assessment of the value of D1’s assistance was a matter for the judge and the difference in sentence is not so disparate that the Applicant has a justified grievance.

Should an allowance be made for the Applicant’s ‘foreigness’?

18.  The main case cited by the Applicant is HKSAR v Rohrer [2001] 3HKC 371 which was criticised in HKSAR v Hong Chang Chi [2002] 1 HKC 295 as wrongly allowing a discount on account of an applicant’s overseas status.

19.  Hong Chang Chi reiterated and approved the position set out in AG v Rojas [1994] 1 HKC 342, to the effect that the overseas status of a defendant was a factor to be taken into account on sentencing, but was not mitigation to any substantial degree and for that reason should not be given a specific discount.

20.  It is true the Applicant will be in prison far from his native country; would not be able to serve part of his sentence in Ghana unless an agreement is reached during his prison term and would be liable to deportation on completing his sentence.  Those disadvantages all result from his choosing to commit a serious criminal offence after arriving in Hong Kong on 11 February 2005 on a Visitors Permit.  The Applicant, despite his assertion to the contrary, would be entitled to the usual remission for good conduct whilst in prison.

21.  The judge was correct to ignore the Applicant’s overseas status as a significant sentencing factor.

22.  In conclusion, it must be noted that the lack of a criminal record is irrelevant in a case as serious as this.

23.  There is no merit in the points raised by the Applicant and this application for leave to appeal is dismissed.