HKSAR v. RUNGRUEANG CHUTIKAN

CACC 430/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 430 OF 2011

(ON APPEAL FROM HCCC 187/2011)

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J U D G M E N T

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Hon Macrae J (giving the judgment of the Court):

1. The applicant pleaded guilty before Deputy Judge P Li to a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The drug involved was 598.27 grammes of a mixture containing 313.13 grammes of heroin hydrochloride and 77.19 grammes of monoacetylmorphine hydrochloride.

2. On 3 January 2011, the applicant, who was a 23-year-old Thai female, arrived at Hong Kong International Airport on a flight from Kuala Lumpur. She was denied permission to land and taken for customs clearance. When her travel bag was searched, three packets of suspected dangerous drugs were found hidden amongst her clothing. Upon arrest and caution, the defendant said she did not know what the items in the bag were but that she had been asked to carry them for US$1000. Later in a video recorded interview, she amplified what she had told Customs and Excise officers by saying that a black male whom she had known for some three days had asked her to take the bag to Hong Kong, whereupon she was to telephone back to Kuala Lumpur. She was given a further US$500 for expenses. The applicant said she believed that documents had been put inside the bag but she did not check the contents. The dangerous drugs had an estimated retail value of just under HK$435,000.

3. It was accepted for the purposes of sentencing that heroin hydrochloride and monoacetylmorphine hydrochloride were salts of esters of morphine. Accordingly, the operative amount of heroin narcotic for sentencing purposes under the guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 was 390.32 grammes. The relevant tariff band for between 200 and 400 grammes of heroin was 12 to 15 years imprisonment after trial.

4. In mitigation, it was advanced on the applicant's behalf that she was not a professional drug trafficker, that she was in urgent need of money for her extensive family and that she was not aware of the serious consequences of her actions.

5. The Deputy Judge adopted a starting point in respect of this particular quantity of dangerous drugs of 14 years and ten months imprisonment, which he enhanced by six months to reflect the international element involved of bringing the dangerous drugs across the border into Hong Kong. In view of her plea of guilty, he discounted the sentence of 15 years and four months by 5 years and two months resulting in a sentence of 10 years and two months imprisonment.

6. The applicant contends that the sentence is too long, bearing in mind her family circumstances and the fact that the dangerous drugs were not destined for Hong Kong.

7. Given the appropriate tariff for this quantity of heroin, the starting point, duly enhanced for the international element of bringing it across the border into Hong Kong, whatever its ultimate destination, cannot be faulted. There was only really one matter of mitigation, namely her plea of guilty to the offence, for which she received an appropriate discount from that starting point.

8. In all the circumstances, the sentence cannot be said to be either manifestly excessive or wrong in principle. The application is refused.