ATTORNEY GENERAL v. GRAEME MUTTON

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J U D G M E N T

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Hon. Yang, C . J .:

1. This is the Attorney General's application for review of sentence.

2. The respondent having pleaded guilty to a charge of trafficking in a dangerous drug in the Magistrates' Court, was committed to the High Court for sentence. He was convicted on his own plea and sentenced to 12 years' imprisonment by Hooper, J.

3. The respondent is a Canadian citizen. He arrived in Hong Kong from Vancouver on the 10th February 1991 with a Chinese man by the name of Ken Mak and stayed in a hotel is Kowloon until the 21st when the two men checked in at the Kai Tak Airport for a flight to Vancouver. Immediately after their check-in procedure was completed, they were stopped by the police officers of the Narcotics Bureau.

4. Upon being searched, two packets of dangerous drug were found in the respondent's boots and another nine packets were found in the concealed pockets of an overcoat he was wearing. When arrested he immediately said, "What can I say, I've been nailed."

5. The quantity of dangerous drug found was 1,384.04 grammes of a mixture containing 1,205.81 grammes of salts of esters of morphine, commonly known as No. 4 heroin.

6. The respondent was at the time of the offence 47 years of age. He was born in New Zealand but settled in Canada some 21 years ago. He is married with grown-up children. He had been unemployed since March 1990. His wife was an employee in a clothing store. In 1978 he served in the United Nations peace keeping force in the Middle East for six months and received two decorations. Ken Mak and his daughter had lived together, but later parted company.

7. In mitigation, it was urged that he had co-operated with the police by giving two full and frank statements and, further, that he was only a courier. Mr. Macrae, who appeared for the respondent both here and in the court below, suggested, in the course of the sentencing process, that it "would obviously not be wrong in considering a starting point in excess of twenty years and the lowest that one could perhaps consider in terms of starting point as a result of the quantity involved ... would be twenty years". To which the learned judge replied, "I was thinking of taking that as a starting point, yes."

8. In passing the sentence he did, the judge said that, on the guidelines laid down by the courts, the respondent came within the top range of over 20 years' imprisonment for the amount he had in his possession. The judge adopted the starting point of 20 years' imprisonment and reduced it to 12 years taking into account the plea of guilty, the fact that the respondent was a courier who was being used at a time when he was very vulnerable - presumably because of his unemployment - and his co-operation with the police. The judge also noted the respondent's unwillingness to give evidence against Ken Mak in the forthcoming trial, saying that if he had been prepared to co-operate more fully the discount of his sentence could have been greater, but "I do appreciate what your counsel has said that one may feel threatened in some way if one does that sort of thing".

9. At the hearing of the application, Mr. Duckett for the Attorney General made three points, viz., (1) the starting point of 20 years was too low, (2) the discount given was excessive, and (3) no substantial discount should be given because the respondent was a courier. At the end of the day, the question which is asked is: Is the sentence manifestly inadequate? It isa question of degree.

10. In support of his first point, Mr. Duckett cited The Queen v Lau Tak-ming (1990) 2 HKLR 370 where it was held that where the amount of dangerous drug was over 600 grammes, the tariff should be in excess of 20 years' imprisonment after trial.

11. On the second point, it was stressed that here the discount was 40 per cent. The respondent was caught red handed and there could be no defence to the indictment. The statements made by the respondent, whilst showing a measure of candour, in the end were of no use to the police. While he identified the photograph of a man called Chung suspected to have taken part in the offence, that man was, clearly, already known to the police.

12. Thirdly, it was contended that a courier should not be entitled to a substantial discount in view of the importance of the role he plays.

13. In this context, it will be useful to examine again the test adopted by this court of "manifestly inadequate". It is held in Attorney General v Lau Chiu-tak [1984] HKLR 23 (per Huggins, V.-P. at 25) that the test of manifestly inadequate is no different from the test of manifestly excessive but that the court will be much more easily persuaded a sentence is manifestly excessive than it will be that it is manifestly inadequate because, in the latter case, there is a presumption favorem libertatis which the Crown has to overcome. The court will be jealous to prevent encroachment on the discretion of judges-and magistrates to impose as lenient a sentence as they may think appropriate, provided the sentence is one "which in all the circumstances could reasonably be passed".

14. It is in the light of this dicta that applications of this nature fall to be considered.

15. In opposing this application Mr. Macrae supported the judge's starting point of 20 years' imprisonment and relied on Attorney General v Wong Kwok-wai [1991] HKLR 384 - of which more in a moment - where this court held that in the circumstances of that case a starting point of 20 years' imprisonment would not have been wrong. As to the discount allowed by the judge, it was contended that defendants should be encouraged to plead guilty and not to put forward ludicrous defences . The respondent in this case had co-operated as much as he could with the police, thereby demonstrating a degree of remorse. On the Attorney General's third point, that the role of a courier was an important role, it is argued that there is a difference in criminality between a mere courier and someone who plays a more active part in the trafficking of drugs. Lastly, it was submitted that as the respondent is already 47 years of age, he would be an old man when he comes out if sent to a long term of imprisonment.

16. We have carefully considered the arguments advanced on behalf of the Attorney General as well as the respondent. The tariff suggested in Lau Tak-ming (supra) is that a quantity of between 400 grammes and 600 grammes should bring the case within the range of 15 to 20 years' imprisonment after trial. The upward curve of the tariff of sentences begins to level off when it reaches the plateau of 20 years. In other words the increase in the term of imprisonment will be progressively less dramatic as compared with the increase in the quantity of drugs as it goes beyond 600 grammes. Whilst the quantity of drug found here is about twice that of 600 grammes, it does not follow that the starting point must necessarily be in excess of 20 years' imprisonment. Having regard to all the circumstances, we are not prepared to say that the starting point adopted by Hooper, J. was wrong.

17. Next, we come to consider whether the discount given here was such as to render the sentence manifestly inadequate. As Mr. Duckett submitted, it is a matter of degree.

18. Whilst the respondent's co-operation and assistance turned out to be of little-value to the police, those might be considered under the rubric of remorse.

19. On the respondent's role as a courier it must be recognised that that role could well be differentiated from that of others. As was said in R v Cheng Yeung [1989] 2 HKLR 258, at p. 283 H, accepting a proposition that the criminality of the direct trafficker and of the manufacturer is the greater, "it would follow that any s. 4 trafficking tariff, or any s. 6 manufacturing tariff, would be higher".

20. Here the "trafficking" was the technical one of exporting from Hong Kong. We accept that the respondent was not the "direct" trafficker mentioned in Cheng Yeung. But, having said that, couriers do play a vital role and can expect little sympathy. In the present case the respondent accompanied Ken Mak from Vancouver to Hong Kong, stayed here with him for a number of days, was present when the drugs were sewn into concealed pockets of an overcoat he was to wear, had the drugs taped to his legs and was to be paid C$10,000 for his service. The part he played was not dissimilar from that of the respondent in Wong Kwok-wai. There the respondent had been stopped in the Customs Arrival Hall at Lo Wu on 29th May 1990. He was searched and four brick-shaped objects were found strapped, variously, under his right arm pit, his left arm pit, to his right abdomen and to his left abdomen, with black adhesive tape. These were the drugs in question in the quantity of 1,230.45 grammes of a mixture containing 1,094.28 grammes of salts of esters of morphine. The respondent immediately admitted that he was knowingly carrying dangerous drugs having been recruited as a drug courier by a person named "Ah Tak". It had been arranged that he would meet Ah Tak at Kowloon Tong MTR Station where the drugs would be collected from him. He was to be paid $6,000, that is a rate of $1,500 per block. He was sentenced to 10 years' imprisonment. The Court of Appeal, on Review, held that a proper sentence in that case was 15 years' imprisonment.

21. We accept that the sentencing judge, having borne in mind the persuasive advocacy of Mr. Macrae, imposed at his discretion a lenient sentence. We accept that guidelines are not straight jackets but their purpose is to achieve consistency in the sentencing process. Mr. Macrae has, in addition to his general submission to us on the points on mitigation, strenously urged that the fruits of advocacy, which a judge is fully entitled to take into consideration when exercising his undoubted discretion, should not be allowed to wither away in the course of an Attorney General's review. But we can see -nothing in the circumstances of the offence or the offender here which is of sufficient weight to take this case outside the parameters of the guidelines. The respondent being in financial difficulties permitted himself - a man of previous excellent record - to be persuaded by someone close to him to enter into this nefarious trade. These courts have emphasised time and again that such offenders can expect little mercy. Their actions knowingly go to the destruction of their fellow men. Had the judge imposed a sentence in the region of 15 to 16 years that would not have been disturbed on appeal. We are fully conscious of the effect of a lengthy sentence on this man separated as he would be from his family and to be served in, to him, a foreign environment. Further it is no light matter to interfere with the discretion of a sentencing judge. Having said all that, a sentence of 12 years here was not in our judgment one which "in all the circumstances could reasonably be passed". It was, in the full sense, manifestly inadequate.

22. We would allow this application, set aside the sentence of 12 years and substitute for it a sentence of 15 years.