HKSAR v. AKINYI GRACE SYLVIA

CACC 324/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 324 OF 2015

(ON APPEAL FROM HCCC 382 OF 2013)

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REASONS FOR JUDGMENT

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

Introduction

1.  On 6 September 2013, the applicant pleaded guilty at Eastern Magistracy to one count of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The Particulars of Offence described the dangerous drugs as “0.62 kilogramme of a mixture containing 0.14 kilogramme of heroin hydrochloride and 0.08 kilogramme of 6‑monoacetylmorphine hydrochloride.”

2.  The applicant was committed for sentence to the Court of First Instance and appeared before V Bokhary J on 7 November 2013.  Having confirmed her plea, she was sentenced to 8 years and 6 months’ imprisonment.

3.  By a Notice of Application for Leave to Appeal (Form XI) filed on 25 September 2015, the applicant applied for leave to appeal against her sentence out of time.

4.  At the hearing of her application we refused it and said we would hand down our reasons for doing so at a later date.  This we now do.

The background to the offence

5.  The Summary of Facts which the applicant admitted for the purpose of sentencing revealed that on 10 March 2013 at around 22:30 hours, the applicant was intercepted for customs clearance on her arrival at Hong Kong International Airport from Nairobi, via Bangkok and Phnom Penh.

6.  She was sent to Queen Elizabeth Hospital when it was suspected that she had drugs concealed within her body.  Upon examination at the hospital, the presence of foreign objects in her body was confirmed.  The applicant was arrested and cautioned and in response she admitted that she had 70 packets of drugs in her body.

7.  Later, the applicant discharged a total of 70 packets whose contents were found, upon examination, to be a mixture containing the dangerous drugs particularized in the charge.  The estimated retail value of the dangerous drugs at the time of seizure was HK$512,120.

8.  In a subsequent Record of Interview, the applicant stated, inter alia, that:

(a)  she had swallowed 50 pellets and inserted 20 pellets into her anus;

(b)  she did not know what type of drugs she was delivering;

(c)  she was to deliver the drugs to Guangzhou and should call someone on a China telephone number upon her arrival; and

(d)  she was to be paid 150,000 Kenya Shillings on successful delivery of the drugs.

9.  The applicant admitted in the Summary of Facts, and it was not disputed, that heroin hydrochloride and 6-monoacetylmorphine hydrochloride are both salts of ester of morphine and 6‑monoacetylmorphine hydrochloride is a narcotic analgesic with a potency similar to heroin hydrochloride.

Mitigation

10.  By way of personal background, counsel for the applicant informed the court that the applicant was 25 years of age and a person of clear record, both in Hong Kong and elsewhere.  She had a 4 years old son and was unemployed at the time of her arrest.  She had trained as a nurse and had worked as such between the time she obtained her qualification in 2006 and the time she lost her job in 2012.  She could not obtain other employment and was living off her savings and assistance from her mother.  She had a young son to support and it was her desperate situation which tempted her into drug trafficking.

11.  As regards the appropriate sentence, counsel for the applicant pointed to the fact that as the case involved 220 grammes of heroin narcotic, it fell towards the bottom end of the sentencing guideline of 12 to 15 years’ imprisonment that is applicable to 200 to 400 grammes of heroin narcotic.[1]

12.  Counsel for the applicant realistically accepted that personal circumstances played only a small part in the assessment of sentence, but he urged the judge not to enhance the starting point by too great a period when allowing for the international element.  He also urged the judge to allow an additional, but small, discount for the fact that the applicant was “likely to suffer greater hardship than a local when kept imprisoned”.

The Reasons for Sentence

13.  In sentencing the applicant, the judge adopted a starting point of 12½ years, which she then enhanced by 6 months to take into account the international element of the importation of drugs into Hong Kong. This made a total period of imprisonment of 13 years.

14.  The judge then had regard to the applicant’s plea of guilty and all her other circumstances and gave her a slightly more than one-third discount.  By this route she arrived at 8½ years’ imprisonment[2] and this was the sentence she imposed on the applicant.

The grounds of appeal

15.  The applicant attached a handwritten note to her Form XI.  In this note, the applicant wrote:

“The reason why I would like to submit this late application is that before I was satisfied with my sentence and felt it was fair but I have just come across new information that qualifies me for a lower sentence. According to the R v Lau Tak Ming [1990] 2 HKLR 370 sentencing guideline for trafficking in heroine; there’s the part that gives reference on how to apply the tariffs in sentencing. It says ‘

a) up to 10 gms of narcotic – 2-5 years imprisonment

b) btw 10-50 gms – 5-8 years

c) btw 50-200 gms – 8-12 years

d) btw 200-400 gms – 12-15 years

e) btw 400-600 gms – 15-20 years

For ease of reference and these figures are approximate, rounded out and based on current purity levels

a) above relates to equivalent of up to 300 gms of No 3, 11 gms of No 4, 20 grammes of SEM

b) above relates to equivalent of up to 1600 gms of No 3, 50 gms of No 4, 90 grammes of SEM

c) above relates to the equivalent of up to 660 gms of No 3, 200 gms of No 4, 500 gms of SEM

d) above relates to the equivalent of up to 11,600 grammes of No 3,390 grammes of No 4, 660 grammes of SEM

e) above relates to the equivalent of up to 18,000 grammes of No 3,580 grammes of No 4, 1400 grammes of SEM’

My purity was 620 grammes of a mixture containing 140 gms of heroine hydrochloride (a salt of heroine) and 80 grammes of 6-monoacetylmorphine hydrochloride. In No.6 bulletin of my laboratory report which I will later avail to the court, it says ‘Heroine hydrochloride and 6-monoacetylmorphine hydrochloride can be named as salts of Esters of Morphine (SEM)

This information was not given to me during the preparation of my sentence and thus my sentence was started from category D; (12-15 years) while with this information I believe my cut off point should be category C (Between 8-12 years) since the 80 grammes of monoacetylmorphine hydrochloride added to 140 grammes of heroine hydrochloride totals to 220 gms of SEM which falls under that category.

I hereby appeal to the high court to review my case based on this and please grant me a starting point of 8 years.” (Emphasis added.)

16.  Essentially, the applicant argued that in R v Lau Tak Ming [1990] 2 HKLR 370 the Court of Appeal recognized three different types of mixtures with differing purity levels.  These were mixtures of No 3 heroin, No 4 heroin and of SEM.  The new guidelines replaced a reliance on the quantity of mixture with the quantity of “narcotic” but gave some guidance on how the old mixtures, based upon the then prevailing purity levels, would equate to the new description of “narcotic”. Because the Government Chemist has described the heroin hydrochloride and 6-monoacetylmorphine hydrochloride as both being salts of esters of morphine, the applicant argued that the quantity of these two drugs should be treated as a SEM mixture for the purpose of identifying the correct sentencing guideline applicable to her.  Using the Lau Tak Ming scale, 220 grammes of SEM would fall into the 90-500 grammes of SEM range which would attract a sentence of 8-12 years’ imprisonment.

17.  The applicant explained her lateness in filing the Form XI, namely 1 year and 10 months, as being due to becoming aware of some “new information” that had not been available to her earlier.  This new information was said to include:

(a)     the decision in Lau Tak Ming and especially those parts of that judgment on which she relied for present purposes; and  

(b)     the fact that heroin hydrochloride and 6-monoacetylmorphine hydrochloride could be described as SEM.

18.  In her most recent letter she referred to the judgment of the Court of Appeal in Attorney General v Chang Chen Liu Sa, CAAR 2/1994, unreported, 16 August 1994 which, she said contained a definition of SEM.  

19.  The applicant also filed a letter, in which she said:

(a)  she had been driven into drug trafficking by her desperate circumstances and not through greed;

(b)  while in prison, she had thought deeply over her misbehaviour and had come to God;

(c)  she was remorseful; 

(d)  she was the breadwinner of her family and a single mother; and

(e)  she had rehabilitated herself and was prepared to return to society.

She also mentioned in this letter that she had assisted a Fr John Wotherspoon in his efforts to combat drug trafficking.

20.  On 4 February 2016, the applicant wrote another letter which had attached to it a mitigation letter from a Fr John Wotherspoon OMI, CSD Chaplain No 51.  In this letter, Fr Wotherspoon described a campaign he had launched to warn East Africans about the dangers of drug trafficking in Hong Kong.  This campaign began in mid-2013 when, according to him, one or two Tanzanian nationals were being arrested at Hong Kong International Airport every week for drug trafficking.  He described the applicant as being “an active member” of his campaign and said:

“Since being sentenced, Grace has encouraged her family to support the campaign, and Grace herself has sent messages through me to media in both Tanzania and Kenya. Last October Grace gave information to a Tanzanian prison social worker who was visiting HK – to help the campaign in Tanzania.”

21.  At the hearing of the appeal the applicant repeated the arguments she had advanced in her written materials.  She also stated that her researches had indicated that monoacetylmorphine hydrochloride did not have as strong a narcotic effect as pure heroin and that she may have been sentenced, wrongly, on the basis that all her heroin was No 4.

22.  On the personal front she mentioned the impoverished state of her family and that a lengthy incarceration in Hong Kong could lead to her losing her nursing licence in her home country.

The respondent’s submissions

23.  Mr Matthew Leung SADPP (Ag), for the respondent, submitted that the applicant’s delay was substantial and she had not offered any reasonable explanation for it.  He pointed out that the applicant has known all along that heroin hydrochloride and 6‑monoacetylmorphine hydrochloride could be described as SEM, as that was so stated in the Summary of Facts which the applicant admitted for the purposes of her sentencing.  He also noted that the sentencing range of 12 to 15 years’ imprisonment had, in fact, been accepted as appropriate by the applicant’s counsel when mitigating for the applicant. 

24.  Finally, Mr Leung pointed out that the ultimate paragraph of Lau Tak Ming on which the applicant relies only listed out the approximate converted quantities of the narcotic with regard to the purity levels of its mixtures at the time of 1990s.  That paragraph of the judgment, Mr Leung submitted, did not support the applicant’s contention that for her quantity of drugs she fell to be sentenced by application of the 8-12 years range.

Discussion

25.  The applicant’s ground of appeal confused a description employed by the Court of Appeal in Lau Tak Ming of one of the three types of mixtures being used by addicts with the chemical description of the narcotic under the Dangerous Drugs Ordinance, Cap 134.  The reference to SEM is set out in paragraph 7 of the applicant’s Summary of Facts which states:

“Like heroin hydrochloride, 6-monoacetylmorphine hydrochloride is a narcotic analgesic with similar potency and is controlled under the Dangerous Drugs Ordinance (First Schedule Part I) as a salt of an ester of morphine. Heroin hydrochloride and 6-monoacetylmorphine hydrochloride can also be named as salts of esters of morphine (S.E.M.)”

26.  The offence of which the applicant was convicted was trafficking in a “dangerous drug”.  “Dangerous Drug” is defined by the Ordinance in section 2(1) as meaning:

“… any of the drugs or substances specified in Part I of the First Schedule.”

Amongst all the drugs and substances listed in paragraph 1 of Part I of the First Schedule is “Heroin (diacetylmorphine)”.

27.  Paragraphs 3 and 4 of Part I of the First Schedule are relevant as they set out particular forms of the paragraph 1 drugs and substances that are also dangerous drugs.  They are:

“3. Any ester or ether of a substance for the time being specified in paragraph 1 or 2.

4. Any salt of a substance for the time being specified in paragraph 1, 2 or 3.”

28.  When read together the effect of all these provisions is that a salt of an ester of heroin (diacetylmorphine) is also a dangerous drug.  This is what paragraph 7 of the Summary of Facts was saying.  Paragraph 7 also mentioned the acronym, “SEM”, by which salts of esters of morphine is commonly described but in doing so it was simply referring to the scientific words that are employed within the First Schedule of the Ordinance to describe a particular derivative form of heroin.

29.  But that is not the way that the Court of Appeal was using the term “SEM” in its judgment in Lau Tak Ming.  It was using this term not to refer to the narcotic content of the mixture but to a type of mixture that had a purity level somewhere in between No 3 and No 4 heroin.  This is apparent from page 383 of the reported judgment where Silke VP said:

“In March, April, May, June, July and August of 1989 there were very minor seizures of the substance called, for convenience, SEM (which simply means salts of esters of morphine) … SEM is a mixture containing the narcotic but less pure than No 4 and of greater purity than No 3.”

30.  The applicant also relied on comments by Macdougall VP, in giving the judgment of the Court of Appeal in Attorney General v Chang Chen Liu Sa CAAR 2/1994, unreported, 16 August 1994. In this judgment Macdougall VP noted that the use of the expression “SEM” by the Court of Appeal in Lau Tak Ming had caused some confusion and said:

“ Such confusion seems to have arisen because of the use of the expression ‘SEM’ in Lau Tak Ming. As is apparent from page 383 of the report, ‘SEM’ was used for convenience to refer to a mixture of a purity between that of No. 3 and No. 4 heroin, not as an acronym for salts of esters of morphine.

      The guidelines themselves, however, refer to the actual quantity of salts of esters of morphine in the mixture: that is to say, the active ingredient in the mixture.”

31.  The applicant’s ground of appeal is, therefore, based upon a misunderstanding of what the acronym “SEM” referred to in Lau Tak Ming and what it refers to in paragraph 7 of her Summary of Facts.  The 220 grammes of dangerous drugs of which she has been convicted is narcotic which, in scientific terms, is known as a salt of ester of morphine, but that is not the SEM mixture to which the Court of Appeal referred in Lau Tak Ming.  There is, consequently, no merit in this ground of appeal.

32.  The applicant’s claim that monoacetylmorphine hydrochloride does not have as strong a narcotic effect as pure heroin is inconsistent with the admission made by her in the Summary of Facts.  In paragraph 7 of that document the applicant admitted that “6‑monoacetylmorphine hydrochloride is a narcotic analgesic with similar potency”, that is similar potency to heroin hydrochloride.  Clearly the respondent’s purpose in inserting this statement in the Summary of Facts was to avoid any point being taken on the difference in chemical composition of the two substances.  With that admission having been made the judge was entitled to add together the separate quantities of heroin hydrochloride and 6‑monoacetylmorphine hydrochloride for the purpose of determining into what sentencing range the applicant fell.   

33.  The only other ground raised by the applicant’s letters is her post-conviction assistance in combating drug trafficking.  The assistance is not rendered to the authorities but the Hong Kong government and the Hong Kongcommunity are the ultimate beneficiaries of it.  The question, however, is whether this assistance and any benefit the applicant should receive because of it, is a matter for this court or whether it is a matter for the executive to address.

34.  This area of the law was thoroughly analysed by Stock JA (as he then was) in HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395.  He said at page 405F-H:

“17. The essential function of this court, upon an application which pertains to sentence, is to determine whether the appellant should be sentenced differently for the offence for which he was dealt by the court below (see s 83I(3) of the Criminal Procedure Ordinance (Cap 221)); and the court will not intervene unless it is of the opinion that the sentence was manifestly excessive or wrong in principle. Generally, the court’s function is to look at the factors which prevailed at the date of sentence, and not to act as an administrative review, or a supervisory, tribunal to take into account factors since sentence. That is not to say that there are never instances in which the court will give weight to developments since sentence, or that the court is precluded from doing so. See, for example, R v Sze Tak Hung [1991] 1 HKLR 109, 112. But the circumstances in which it will give effect to post-sentence events are limited.”

35.  Stock JA went on to examine the circumstances which might lead an appellate court to intervene and concluded it should do so where a failure to do so by the appellate court, at that stage, would otherwise defeat the ends of justice and the public interest.[3]

36.  The form of assistance rendered by this applicant does not require the intervention of this court at this stage.  The assessment of the value of the applicant’s assistance is something which can be better made by the executive and there is still ample time before the applicant’s release for such an assessment to be made.

37.  We should say, however, that we applaud the initiative of Fr Wotherspoon and if it has been as successful as claimed then it is clearly an initiative which should be considered for use in other countries whose nationals are exploited as drug mules for the trafficking of dangerous drugs into Hong Kong.  It is a complaint commonly made by drug couriers who apply for leave to appeal their sentences that they had no idea that the sentences imposed by Hong Kong courts on drug traffickers are so heavy.  We have no reason to doubt this claim.  Certainly, drug syndicates are not going to inform prospective couriers of the reality they will face if apprehended and in all likelihood will actively misrepresent that reality to them.

38.  Fr Wotherspoon’s initiative shows what can be achieved by educating those who may be at risk of being lured into the role of the drug courier.  However, more needs to be done and it is in the interests of the Hong Kong Government for it to become involved and to lend its support to such initiatives, and any others that can be devised that will achieve the same end.

39.  If such initiatives require the participation of convicted drug traffickers in order for them to be effective and serving prisoners take part in such programmes then it will be a matter for the executive to determine whether such assistance should be rewarded by use of the executive’s power of clemency.

Conclusion

40.  For these reasons we refused the applicant an extension of time in which to apply for leave to appeal against sentence. 

[1] See R v Lau Tak Ming [1990] 2 HKLR 370.

[2] This worked out at a 34.6% discount.

[3] HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395, 408G-H.