HKSAR v. TAMANG AMAR

HCMA 123/2022

[2022] HKCFI 1094

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 123 OF 2022

(ON APPEAL FROM KCCC 1727 OF 2021)

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BETWEEN

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JUDGMENT

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Introduction

1.  The appellant is a 38-year-old Nepalese citizen, who was employed as a driver in Hong Kong under a domestic helper contract. On 18 October 2021, he pleaded guilty to one charge of possession of 12.8g of cannabis resin and to one charge of trafficking in 4,902g of the same drug before Mr Cheng Lim-chi, Magistrate, at the Kowloon City Magistrates’ Courts. He was sentenced to two months’ imprisonment on Charge One to be served concurrently with a sentence of 18 months’ imprisonment on Charge Two.

2.  By his letter seeking an extension of time to appeal dated 3 November 2021, the appellant had sought to suggest that the sentence passed upon him was three months too long. That ground has since been abandoned on his behalf by Mr Allan. By his Notice of Appeal dated 25 February 2022, he does not seek to rely upon any error of the Court below. Mr Allan asks the Court to show mercy to the appellant on humanitarian grounds, which have arisen since the date of sentence.

Basis of the Application

3.  Mr Allan asks the Court to release the appellant, or reduce his sentence, in order that he can return home to Nepal as soon as possible. He is currently due to be released in October 2022. He does so on two bases:

(a) The appellant’s mother Kham Jung Tamarang, who is 62 years old, has been diagnosed with right side hemiparesis[1] following a CVA[2] on 15 January 2022. She can no longer care for herself or her husband.

(b) The appellant’s two daughters, who are aged 10 and 11, are currently in boarding school in Darjeeling but the appellant can no longer pay the school fees and they may be turned out of school in India with no one to fend for them. He wishes to collect them and bring them home to Nepal.

The Issues

4.  Three issues arise. The first is whether anything relied upon by the appellant can be said to be factors which can properly mitigate his sentence under Charge Two. If that were the case, the second is whether they can legitimately reduce his sentence below that which has already been passed upon him. The third is whether this is the proper forum to raise an application such as this.

What is Legitimate Mitigation?

5.  Much of what is said by Counsel on behalf of a defendant in mitigation can more properly be called an explanation. It provides the underlying circumstances from which the offending arose in order for the sentencing tribunal to fairly and justly evaluate the true culpability and blameworthiness of the offender. The extent to which that ‘mitigation’ will sway the application of the usual principles of sentencing depends, in part, upon the offending in question. The more serious the offence, the less likely that it can reduce sentence.

6.  Trafficking in dangerous drugs is an extremely serious offence. The Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370 stated[3]:

“It must be borne in mind that these offences of the utmost gravity which may well result in mitigating factors which, for less serious offences, could lead to a discount, having little weight. By this we mean age and disability – though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

In respect of drug trafficking, the Court of Appeal has said on numerous occasions[4] that the ill health of a defendant cannot mitigate sentence save in exceptional circumstances. It has similarly stated that family circumstances fall to be considered in the same category[5]. That does not mean that ill health or financial circumstances should never be raised but that a defendant must be warned that, whilst it is an explanation for his offending, it is unlikely to reduce sentence below the guideline tariff.

Can it Reduce the Defendant’s Sentence?

7.  On this occasion, the learned magistrate was told that the appellant had lost his job, his wife and the possibility of obtaining a dependent’s visa in Hong Kong because of his arrest and prosecution. Counsel additionally explained that the defendant had two children at home who were in boarding school and that his mother had recently undergone an operation on her kidney. There was little detail advanced. No mention at that time (in October 2021) was made of the children being in a foreign country without family support or of the existence or ill-health of the father. His mother had not yet had her stroke. But the magistrate took it all into account and ultimately gave him what can only be said to be a lenient sentence. No doubt that is why Mr Allan does not seek to appeal sentence. The appellant pleaded guilty to trafficking in almost 5kg of cannabis resin. That amount warranted a starting point of 30 months’[6] imprisonment and the defendant received a notional starting point of 27 months. It appears, without further explanation from the learned magistrate, that he exercised his discretion in the face of mitigation advanced and reduced the starting point by three months. That being the case the sentence passed upon the appellant could already be said to have benefitted from that which he now seeks i.e. a balanced and fair sentence in all the circumstances of the offending and the offender. It would not be appropriate to reduce it further, without more.

Is this the Proper Procedure?

8.  The Court of Appeal has recognised that consideration of justice includes acts of mercy in extenuating circumstances. In HKSAR v Chan Kin Chung & Anor [2002] 4 HKC 314, Stock JA (as he then was) said:

“A balanced approach to sentencing is one that has proper regard to essential sentencing principle and policy, which includes the principle that the adverse effect of imprisonment upon an offender’s family will not normally be taken into account; and is one that has full regard to the seriousness of the crime, although not ignoring credible evidence that may justify a merciful sentence.”

However, it has also noted that a court sitting on appeal should always be slow to interfere with an otherwise appropriate sentence. It has therefore recognised that the proper course in the rare case where humanitarian grounds may be properly raised, a convicted person should seek to petition the Chief Executive[7] to exercise its prerogative of mercy for there is no legal basis for an appeal.

9.  The appellant’s family and personal circumstances were quite properly raised before the learned magistrate by way of personal background and he took note of them in passing sentence. The appellant makes no complaint as to that. The appellant seeks to introduce new facts by reason of his mother’s stroke and his daughters’ predicament, which were not before the learned magistrate. Mr Allan originally made no mention of the wife of the appellant in his submissions. In answer to the Court, it appears that she is also Nepalese and a HKID card holder with a job in Hong Kong but he maintains that she is not the mother of the children. The appellant only married her last year. He submits that the natural mother of the children has disappeared and takes no interest in her daughter’s affairs but I have no evidence of that. I also have no evidence before me that the children are actually at risk of being thrown onto the streets by the school. As for the mother’s condition, the appellant has provided documentation which suggests that the mother has had a significant stroke and is at risk of passing away in the coming months.

10.  The Court acknowledges that these are particularly trying times. It is said when a loved one is seriously ill or passes away. It is also unfortunate if an inmate cannot be present to pay his last respects or to say his goodbyes in person. But this is not a novel situation. Sadly, it is a common one and one which is usually addressed by the Commissioner of Correctional Services if an inmate is resident in Hong Kong. If that is the case, arrangements can be made for a limited supervised release. There is no question of a reduction of sentence nor early release in such circumstances. Supervised release to attend upon a dying family member or a funeral overseas is not possible if the inmate is a foreigner. That, unfortunately is one of the consequences of coming to Hong Kong and choosing to commit a very serious offence.

Conclusion

11.  The magistrate correctly applied the relevant legal principles. Where a defendant faces a charge of trafficking in dangerous drugs of a significant quantity it would rarely be appropriate to reduce the sentence below the guideline tariff. The personal mitigation advanced on behalf of the appellant was not exceptional and did not warrant any reduction albeit he did receive one from the magistrate in the exercise of his discretion having seen and heard Counsel on his behalf. No further reduction is appropriate.

12.  The proper course where the original sentence was an appropriate one and an offender subsequently asks for the exercise of the prerogative of mercy upon humanitarian grounds is to petition the Chief Executive and to do so promptly. In this instance, should the appellant be in position to make good his petition with sufficient cogent evidence in support, that approach is still available to him.

13.  This appeal is dismissed. The sentence of the magistrate stands. There will be no order as to costs.