HKSAR v. THANALLATCHUMI SAKTHISATCHITHANANTHAN

CACC 173/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 173 OF 2008

(ON APPEAL FROM HCCC NO. 52 OF 2008)

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J U D G M E N T

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Hon Tang VP:

1.  In October 2007, the applicant was arrested at the Hong Kong International Airport on arrival from New Delhi when four packets of suspected dangerous drugs were found concealed in the front and back covers of two of the books found in her suitcase.

2.  They were later found to contain a total of 2,092.45 grammes of a mixture containing 1,296.09 grammes of heroin hydrochloride.  The street value of the drugs seized was about HK$740,000.

3.  The applicant pleaded guilty to the charge and she was sentenced by the Deputy High Court Judge M Poon (as she then was) to imprisonment for 16 years.  The learned judge had adopted a starting point of 24 years and had given the applicant a full one-third discount for her guilty plea. 

4.  The applicant now applies for leave to appeal against sentence.

5.  In support of her application, she has urged upon us her unfortunate personal circumstances, including the fact that she is a single parent with two dependent children, who are looked after by her old and sick parents.  Also that she is remorseful.  She also told us this morning that she might have a heart condition for which she is receiving care and medication at the Queen Elizabeth Hospital.

6.  In sentencing the applicant, the learned judge had taken into consideration sentencing guidelines for trafficking in heroin laid down as long ago as 1990 in R v Lau Tak-ming and Ors [1990] 2 HKLR 370.  There, this Court (Silke VP, Kempster and Power JJA), after seeking and receiving the comments of other members of the Court of Appeal, said that for amounts of over 600 grammes, the sentence might exceed 20 years, “bearing in mind that the maximum sentence provided for by the legislation is life.”

7.  This Court, differently constituted, in HKSAR v. Abdallah [2009] 2 HKLRD 437 subsequently formulated guidelines beyond those in Lau Tak-ming in relation to quantities of drugs. 

8.  In sentencing the applicant, the learned judge had referred to the following cases:

(a) HKSAR v Leung Man-kei, CACC 60/2001;

(b) HKSAR v Tse Sun-wong, CACC 188/2001;

(c) HKSAR v Leung Sze-keong, CACC 566/1997;

(d) HKSAR v Ng Sai-ho, CACC 528/1997;

(e) R v Ho Chi-ming, CACC 447/1994; and

(f) HKSAR v Hong Chang-chi [2002] 1 HKC 295.

9.  In Leung Man-kei and Tse Sun-wong, the Court of Appeal considered a starting point of 22 years to be appropriate where the heroin involved were 915.88 grammes and 985.31 grammes respectively.  In Leung Sze-keong, a starting point of 25 years was upheld for trafficking in 889.60 grammes of heroin for its international element.  There the defendant was also arrested at the Hong Kong International Airport where he had been on a flight from Bangkok en route to Vancouver, the destination of those drugs.

10.  I have taken note of the unfortunate personal circumstances of the applicant, but drug dealers are notorious for their exploitation of the weak and unfortunate.  If the weak and the unfortunate are treated more leniently they will be more preyed upon by drug dealers.  That is a reason little account is given to such circumstances. 

11.  Regarding the applicant’s possible ill health, she will receive proper medical care in Hong Kong.  But the authorities clearly show (including a decision of the Court of Final Appeal) that for offences as serious as the present one, no weight can be given to the fact that the applicant may suffer from a heart disease. 

12.  As for the fact that the applicant is a foreigner serving sentence in Hong Kong, this Court, differently constituted, has pointed out in Hong Chang-chi:

  “22.   … Drug traffickers from abroad, importing drugs into Hong Kong, should plainly understand that they will receive no sympathetic consideration whatsoever on account of their status as foreigners or, as in this case, on account of their incarceration some distance from home.  On the contrary, in cases of this kind, the very act of importation from abroad, is an aggravating factor. ...”

13.  The sentence in this case is in line with the guidelines laid down in Lau Tak-ming and Abdallah mentioned above.  So, much as I sympathize with the applicant, the sentence cannot be regarded as manifestly excessive.  I refuse leave to appeal.

Hon Lunn J:

14.  I agree with the judgment of Tang VP.

Hon Wright J:

15.  I too agree.