HKSAR v. TANALETCHUMY RAMACHANDRAN

CAC C 213/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2012

(ON APPEAL FROM HCCC NO. 282 OF 2011)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Stock VP (giving the judgment of the Court):

1. The applicant pleaded guilty in the Magistrates Court to trafficking in 3.13 kg of heroin. On 4 May 2012 she was sentenced by Deputy Judge Li (as he then was) in the Court of First Instance to 17 years’ imprisonment. She now seeks leave to appeal that sentence.

2. The facts underlying the guilty plea were that on the morning of 7 March 2011 the applicant arrived at the airport in Hong Kong on a flight from Malaysia.  Her baggage was inspected and inside was found, amongst other items, six photo albums with the drugs concealed in those albums.

3. She is a national of Malaysia, aged 25 years.  In her interview after her apprehension she denied knowing that the case contained dangerous drugs.  The story then given was that her trip to Hong Kong had been funded by a female named Rem, resident in Nigeria, who had been introduced to her by another female friend whom she knew from her church in Malaysia.  She was directed by Rem to stay at a hotel in Hong Kong to which a third person would come to collect the gift (the album) which she was carrying.  For her trouble she was given $200.  She never suspected that she was carrying dangerous drugs.

4. This account differed somewhat from the account given in mitigation in the court below in which the two ladies in question were mentioned most particularly because in mitigation she alleged, as she had not before, that a Nigerian called Jonathan who resided in Hong Kong was said to have lured her into the escapade.

5. Applying the guidelines in HKSAR v Abdallah [2009] HKLRD 437, the judge took a starting point of 25 years’ imprisonment, added two years to reflect the international component of the offence in this case, reduced that by nine years because of the plea of guilty and reduced the resulting total by a further year for what he described as her cooperation with the Customs and Excise Department.  This resulted in the total of 17 years’ imprisonment.

6. The cooperation to which the judge referred was a reference to the fact that, subsequent to her first appearance in court, she provided details of this man Jonathan, including a description and an address in Hong Kong.  The officers in charge of this case undertook some investigations but these bore no fruit.  The man to which her information led them did not fit the description which she had provided and for that and other reasons they were minded not to accept the account she had given about him.

7. On 16 January 2013, we adjourned the application part-heard for we wished to ascertain whether the police inquiries might have been too abruptly curtailed to the possible disadvantage of the applicant.  She had provided an address in Hong Kong for this man Jonathan and said that he had visited her in prison and had also visited another person in prison whom she named.  Furthermore, it was common ground that Jonathan had been arrested in Hong Kong for a drug-related offence and tried but acquitted.  On the face of matters, therefore, there seemed to be the possibility that a Hong Kong drug trafficker had lured her into the offences to which she pleaded guilty, and that she had provided details which might be of assistance to the law enforcement authorities but that through no fault of hers, their enquiries had not come to fruition and that in the circumstances she might have been entitled to greater credit than she had been given by the sentencing judge.

8. We had the advantage at the resumed hearing of receiving details of the investigation provided by the officer in charge of the case.  He testified before us.  We also heard from the applicant. 

9. As a result of that exercise, we were satisfied that the credibility of the applicant’s account in respect of the man Jonathan was highly questionable.  There were numerous inconsistencies between what she told us and what had been said on her behalf at first instance; and there were inconsistencies between what she had told the first instance court and ourselves, and objectively ascertainable facts.  For example, the court below was told that she had met Jonathan in 2010 and spent some time with him that year; whereas she told us that she had first met Jonathan in Hong Kong in February 2011 for a few hours.  She had identified Jonathan to the police as the person who had visited her in prison in July 2011 whilst she awaited trial; yet the person she identified did not match the description she had provided to the police of the man who had lured her.  Moreover the person thus identified had, she said, been in Mainland China in early 2011; whereas it was established that that could not have been so because at that time, the man identified was in custody in Hong Kong.  Indeed on the day of her arrest on 7 March 2007, the man called Jonathan was in immigration custody.  Her account did not hang together.

10. We were further satisfied that there was omitted no step in the investigation of the case which might have assisted her.

11. In the event, we see no basis upon which the sentence imposed by the judge can properly be said to have been manifestly excessive and accordingly the application is dismissed.