CAC C 110/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 110 OF 2010

(ON APPEAL FROM HCCC NO. 246 OF 2009)

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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):

1.  The applicant pleaded guilty before McMahon J to three counts on an indictment:

(1) that on 4 February 2009, at the customs arrival hall at Hong Kong International Airport, she unlawfully trafficked in 1,538.22 grammes of a crystalline solid containing 1,484.01 grammes of methamphetamine hydrochloride;

(2) that on the same day at that airport，she made a representation to an immigration assistant which she knew to be false, in that she provided a false name, contrary to s. 42(1)(a) and (4) of the Immigration Ordinance, Cap. 115; and

(3) that on the same day and at the same place, she used a forged travel document, namely an Austrian passport, when seeking to gain an entry into Hong Kong, contrary to s. 42(2)(b) and (4) of the Immigration Ordinance, Cap. 115.

2.  On 12 March 2010 she was sentenced to a total of 16 years 6 months’ imprisonment and this is her application for leave to appeal against sentence.

3.  The facts were that on the evening of 4 February 2009, the applicant arrived at the airport from Malaysia and for the purpose of arrival clearance she presented an Austrian passport which bore her photograph.  She was permitted to enter but when she went to the Green Channel at the customs arrival hall, she was stopped for a baggage check. Inside a plastic carrier bag, there was found four large bars of chocolate as well as two boxes containing 60 pellets of chocolate and inside the chocolate packaging was white crystalline substance.  The applicant was arrested and cautioned but remained silent.

4.  The white substance found in the wrapping was subsequently analysed and contained the quantity of “ice” to which we have referred, a quantity with a street value of $1,158,279.66.

5.  Upon interview, the applicant said that she was a Serbian and that her real name was not that which appeared on the passport. She said that the fake passport which she carried had been given to her by an Iranian man whom she came to know some time before in Austria where she had a five-year-old daughter and lived alone.  She had been unemployed for some months and was an occasional user of drugs.  She had received the passport in the Netherlands in July 2008 and had been told that it was a false passport. She did not use her Serbian passport because that was not convenient for travel.  Her assignment was to deliver drugs to Japan and the idea was that if she could secure a Hong Kong immigration stamp on the passport, it would make it easier for her to gain entry to Japan.  She flew to Kuala Lumpur where she was given the drugs and told what the drugs were.  The plan was for her to stay in Hong Kong for a day and then to fly on to Tokyo to deliver the drugs.  She was to receive Euros 1,000 as a reward plus travelling expenses.

6.  The judge adopted a starting point of 22 years’ imprisonment and enhanced that by reason of the international dimension of the offence to a sentence of 24 years’ imprisonment and reduced that by one-third, to give credit for her plea of guilty, to a sentence on the first count of 16 years’ imprisonment.

7.  In relation to the second and third counts, the judge adopted a starting point of 12 months’ imprisonment for each, imposed sentences of 8 months’ imprisonment for each and ordered all sentences to run concurrently save that 6 months of the sentence imposed in respect of the forged travel document offence, namely, the third count on the indictment, was ordered to run consecutively to the sentence imposed in relation to the trafficking offence, thereby making a total of 16 years 6 months’ imprisonment.

8.  In Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, it was said that for trafficking in a quantity of “ice” over 600 grammes, an appropriate sentence, after trial, should range from 18 years upwards, though the courts were to bear in mind the danger of mathematical progression causing injustice.

9.  The argument advanced by Mr Hung today for the applicant is that the sentence imposed was manifestly excessive because the starting point, after enhancement for the aggravating factor of international trafficking, was nonetheless close to the “top scale” starting point and that in any event the sentence imposed was inconsistent with sentences imposed in other cases of trafficking in “ice” in similar amounts.

10.  The reference to “top scale” is apparently drawn from the judgment of this Court, differently constituted, in HKSAR v Ng Kie Tiong and another, CACC 456/2007, 29 August 2008, unreported.  We have a translation of the judgment but it is not an official translation.  The court was there dealing with an attempted exportation, again at the Airport, of 1.94 kg of “ice”.  The judge at first instance had adopted a starting point of 25 years.  The Court appears, if the translation before us is correct, to have referred to a 25-year starting point as “a ‘top scale’ sentence in cases of this kind,” and later to the question whether 1.9 kg could justify a “top scale” starting point thereby leaving inadequate room for cases involving much larger quantities.  We cannot be entirely sure exactly what was intended by this reference to ‘top scale’ sentences in cases of this kind but we are satisfied that the Court was not suggesting that a 25-year starting point was the maximum sentence that could reasonably be imposed for trafficking in “ice” regardless of the quantity or the circumstances of the offence.  The maximum sentence for the offence is one of life imprisonment and one notes, for example, reference in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 (decided, we should say in passing, after the offence in this case) to the decision in R v Ng Muk Kam, CACC 685/1993, 31 May 1995 in which the Court of Appeal substituted in place of a term of life imprisonment a sentence of 35 years for trafficking in a very substantial quantity of heroin.  Other factors, such as the fact that the offender is a main player in the scheme rather than a courier, may, taking into account of course the quantity, warrant sentences higher than 25 years.

11.  The next suggestion by Counsel for the applicant is that the sentence is inconsistent with that imposed in other cases of trafficking in a similar or greater quantity of “ice”.

12.  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.

13.  We will not traverse all the cases cited, save to say that we have had regard to Ng Kie Tiong to which we have earlier referred, where the quantity was 1.943 kg and the sentence was reduced to 22 years, a case in which there was an international element; and to HKSAR v Chok King Foh, CACC 351/2008, 10 June 2009, where 21 years was imposed for trafficking in 1.68 kg, again with an international element. By reference to cases such as these, Mr Hung argues that the sentence imposed in the present case cannot be justified.  We would, however, note this about those two decisions: that in neither did the Court address the starting point for the quantity in issue before aggravation for the international factor.  The process normally to be followed is a three stage process: first to take a starting point for the quantity, then to add to that such additional term as is warranted by aggravating features, if any, and then to reduce the sentence from that starting point on account of mitigating factors, such as a plea of guilty.  Moreover we note that in a subsequent case, HKSAR v Lai Yung Ngai and another, CACC 335/2008, 13 April 2010, unreported, the quantity of drugs which the applicant wished to take through the departure hall of the Hong Kong International Airport was 980 grammes of “ice”.  The judge at first instance had taken a 21-year starting point, to include the international element.  Mr Hung, who appeared in that case as well, suggested that the 21-year starting point when compared with other trafficking cases was excessive and that a more appropriate starting point was at most 18 years 9 months’ imprisonment and in that case as in this the court was presented with a series of earlier decisions.  The Court dismissed the application.  So it might be said that for a quantity substantially less than the quantities in Ng Kie Tiong and Chok King Foh, the same sentence of 21 years resulted – and it is to be noted as well that the quantity in that case was significantly less than in the present; but it is to be recognised that in that case the applicants joined a tour group and the Court commented that they thereby put the members of that group at risk.  The Court added, in relation to the close exercise in comparison to which they were invited, that:

“There may well be cases where more lenient sentences were imposed, but that is not the issue we are concerned with. In determining if we should interfere with the sentence, this Court is not concerned with whether it is heavier than one which was imposed on another offender in an entirely different case. The only issue we have to consider is whether the starting point of 21 years and the ultimate sentence of 14 years imposed on the applicants are manifestly excessive.”

14.  For reasons which we have provided, we would not go so far as to say that in this category of offence a court is unconcerned with sentences in other cases but, as we have earlier intimated, the exercise in comparison cannot sensibly be taken to the degree of fine tuning to which the submissions in these cases are tending.

15.  That said, we are of the opinion that the 24-year point reached by the judge in this case before reduction for mitigation was too high and sits uncomfortably with the range of sentences imposed for this quantity and for facts akin to these facts.  In our judgment, the appropriate starting point before taking into account aggravating features was one of 20 years’ imprisonment; and that the international element warranted an additional two years, which takes one to 22 years’ imprisonment before mitigation.  The mitigation was constituted in this case solely by the plea of guilty, which should take the sentence down to one of 14 years 8 months’ imprisonment.

16.  The sentences imposed in relation to Charges 2 and 3 are not challenged.

17.  Accordingly, the application for leave to appeal against sentence is allowed and, treating the hearing of the application as the appeal, we allow the appeal, set aside the sentence in relation to count 1 and substitute therefore a term of 14 years 8 months’ imprisonment.  The sentences in relation to Charges 2 and 3, namely 8 months apiece, will stand and will run concurrently to each other and to the sentence in relation to count 1 save that 6 months of the sentence in relation to count 3 will run consecutively to that on count 1, making a total of 15 years and 2 months’ imprisonment.