HKSAR v. ZHOU SAILIN

CACC 72/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 72 OF 2014

(ON APPEAL FROM HCCC NO. 431 OF 2013)

____________

________________________

J U D G M E N T

________________________

Hon Lunn VP (giving the Judgment of the Court) :

1. The applicant sought leave to appeal against a sentence of 6 years’ imprisonment imposed on her on 24 February 2014 by E. Toh J following her plea of guilty to a single count of trafficking unlawfully in dangerous drugs on 3 April 2013, namely 29.84 grammes of methamphetamine hydrochloride (“ice”) and minute quantities of methadone and methamphetamine. The hearing of the application, before Lunn VP and Poon J on 11 July 2014 was adjourned for a hearing de novo at the request of counsel for the applicant, so that the Court would have the advantage of the judgment of a differently constituted division of this Court in the prospective hearing in HKSAR v Law Num Chun.[1]

The facts

2. The applicant was intercepted by Customs & Excise officers on her arrival from the Mainland at the Lok Ma Chau Control Point in the early evening of 3 April 2013.  A search of her handbag and person revealed the presence of the dangerous drugs contained in a packet in her handbag, a plastic bag inside her brassier and in other plastic bags inside her underpants.  Having been arrested and under caution the applicant admitted carrying the dangerous drugs for a reward of $1,000.[2]  She was to deliver them to the man from whom she had received them in Mongkok.

Reasons for sentence

3. In sentencing the applicant, the judge acknowledged that she was a 36 year old female, who had a clear criminal record in Hong Kong and in the Mainland.  On the other hand, she noted that the applicant had committed the offence purely for monetary reward.  The judge described her as a “mule transporting drugs from China into Hong Kong”.[3]

Starting point

4. Having adverted to the guidelines articulated in the judgment of this Court in R v Ching Kwok Hung, the judge noted that trafficking unlawfully in amounts in the range of 10 to 70 grammes of ice attracted sentences in the range of 7 to 10 years’ imprisonment.  Then, the judge stipulated a starting point for sentence of 8 years’ imprisonment.

Enhancement

5. For the aggravating circumstance in the commission of the offence of importation into Hong Kong of the dangerous drugs, the judge said that she enhanced sentence by one year’s imprisonment.

Discount

6. For her plea of guilty, the judge afforded the applicant a discount of one-third from the resulting starting point of 9 years’ imprisonment.

Sentence

7. Accordingly, the judge sentenced the applicant to 6 years’ imprisonment.

The grounds of appeal against sentence

8. On behalf of the applicant, Mr Oliver Davies advanced two grounds of appeal against sentence.  First, he submitted that the enhancement of sentence for the aggravating factor of importation of one year’s imprisonment was manifestly excessive.  In support of that submission he relied upon the judgment of this Court in HKSAR v Chung Ping Kun [4].  Secondly, he contended that the judge had erred in adopting a “strictly mathematical” approach to calculating a starting point of 8 years’ imprisonment, having regard to the applicant’s clear criminal record and her role in the commission of the offence, namely as a courier.  In his written submissions, Mr Davies relied on observations made by Stock VP in granting leave to appeal against sentence in HKSAR v Law Num Chun. [5] On 8 December 2014 solicitors representing the applicant informed the Court the second ground of appeal was abandoned.  Mr Davies confirmed that today.

The submissions of the respondent

9. In her written submissions for the respondent, Ms Winnie Lam Tak Wing submitted that, whilst the judge was correct to stipulate a starting point for sentence of 8 years’ imprisonment, having regard to the judgment of this Court in HKSAR v Chung Ping Kun, nevertheless she accepted that the enhancement of sentence by one year’s imprisonment was manifestly excessive.

A consideration of the submissions

10. Of the role of the applicant, the judge was correct to note that she was a courier purely for monetary reward.  Also, it is clear that the applicant went to some lengths to conceal the dangerous drugs in her clothing.  The underpants, in which the applicant concealed five separate plastic bags, containing 20.12 grammes of ice, were male underpants.

11. Having regard to what this Court to say in HKSAR v Law Num Chun [6]as to the culpability of couriers of dangerous drugs and the sentences to be visited on them, it is not surprising that Mr Davis abandoned Ground 2 of the Grounds of Appeal against Conviction.

12. Having noted that the issue of the culpability for purposes of sentence of a “mere courier”, had been addressed by this Court in HKSAR v Manalo [7] and HKSAR v Leung Kwai Ping (No 2) [8], in the judgment of this Court in Law Num Chun, a passage in the judgment of Stock JA, as he was then, in the latter case [9] was cited with approval :[10]

“ When Lau Tak Ming set its tariff it did not do so in a loose way which presupposed that quantity was but one of several equal factors together with role and previous history. What was envisaged was that the appropriate sentence would in the first instance be approached according to weight. Once that level was, within the bands, determined according to weight, then there would, where appropriate, be an adjustment for aggravating features on the one hand and mitigating features on the other.

There is no basis for assuming that the fact of being a courier should be considered a mitigating feature.  It never has been a mitigating feature.  In 1993, in R v Leung Kim Wah Crim App No. 442 of 1992, this court, then comprising Macdougall JA, Litton JA and Bokhary JA, as each then was, endorsed the sentencing judge’s contention that being a courier was not a mitigating factor and said, in terms, that “couriers cannot expect to receive a reduction in sentence simply because they are couriers.”

The courier is the category of trafficker who comes before the court probably more frequently than any other, and is an essential part of the whole nefarious and devastatingly harmful business that is illicit drug trafficking; and there is no basis upon which to assume that, when the court in Lau Tak Ming set its bands and its tariffs, it intended anything other than that the courier would face a sentence based upon the weight of the drugs he or she was carrying, subject of course to such mitigating, or aggravating, factors that prevailed in a particular case. Others, taking a more major role, such as the wholesaler, or the importer or, of course, the manufacturer, would expect an aggravation of sentence; if necessary beyond the limit of a particular band where weight alone would carry sentence to the top end of the band.  That is how role is distinguished, and a fear that there is no room to reflect role is not, therefore, a well founded fear.”  [Italics added.]

13. It is clear that the starting point of 8 years’ imprisonment taken by the Judge was consistent with an arithmetic approach to the application of the guidelines for sentence articulated in Ching Kwok Hung.  Of the factor of the “degree of involvement” of the applicant in the commission of the offence, it is clear that she was intimately involved. Clearly, her involvement was not spontaneous.  Rather, she concealed most of the dangerous drugs about her person.  She abused the fact that she had a 2-way permit to enter Hong Kong, intending to make her way into the urban areas to effect delivery.  She did so for monetary reward.

14. We are satisfied that in all the circumstances the starting point taken for sentence by the judge was entirely appropriate.

Enhancement of sentence for the aggravating factor of importation of dangerous drugs

15. As was noted in the judgment of this Court delivered by Stuart-Moore VP in HKSAR v Abdallah [11] the international element in the unlawful trafficking of dangerous drugs, including across the border between Hong Kong and the Mainland, has long been treated as an aggravating feature in the commission of the offence.  In the judgment of this Court in HKSAR v Hong Chang Chi [12] Stuart-Moore VP said :

“ …the very act of importation from abroad, is an aggravating factor. Those who live outside this jurisdiction, such as the applicant in the present case, must be disabused of any notion that Hong Kong is anything other than resolute in dealing with such offences.”

16. In HKSAR v Abdallah, this Court identified four aggravating factors in unlawful trafficking in heroin, including an “international element” which called for an enhancement of sentence and said that it did not envisage that the presence of any one of those aggravating factors in the unlawful trafficking in amounts of above 1 kg would attract an enhancement of sentence of less than 2 years’ imprisonment.[13]

17.  In HKSAR v Chung Ping Kun [14], this Court noted that the approach adopted in respect of heroin by this Court in Abdallahhad been applied by the courts in respect of cocaine and ice.  In that case, the judge imposed a sentence of 9 years and 4 months’ imprisonment, having enhanced the starting point for sentence by one year to reflect the aggravating factor of importation from the Mainland into Hong Kong of 230 grammes of methamphetamine hydrochloride.  In the judgment of this Court, delivered more than five months after the judge imposed sentence in the instant application, Cheung JA observed that the courts have not been consistent in the exercise of the discretion to enhance sentence for the aggravating factor of an international element in unlawful trafficking in amounts of less than 1 kg of one of those dangerous drugs.  This Court quashed the sentence of imprisonment imposed by the judge and, having stated that the appropriate enhancement of sentence was 6 months’ imprisonment, imposed a sentence of 9 years’ imprisonment.  In doing so, Cheung JA said :[15]

“ As a broad guideline for drugs of this kind below 1,000 grammes we will suggest a level of enhancement as follows:

1) Up to 250 grammes 6 months

2) Between 250 and 500 grammes 6 months to 1 year

3) Between 500 and 1,000 grammes  1 year to 2 years ”

18. The purpose of a court enhancing sentence to reflect an international element in unlawful trafficking of dangerous drugs of this kind is to act as a deterrent.  As such, in the lowest band of up to 250 grammes, generally it will not be appropriate to impose an enhancement of sentence of less than 6 months’ imprisonment.

19. We are satisfied that in enhancing by one year’s imprisonment the starting point taken for sentence for importing 29.84 grammes of ice into Hong Kong the judge fell into error.  In our judgment, the appropriate enhancement of sentence is 6 months’ imprisonment.  No doubt, if the judge had available to her the guidance of this Court in HKSAR v Chung Ping Kun, that is the enhancement of sentence that she would have stipulated for the applicant.

Conclusion

20. In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we quash the sentence of 6 years’ imprisonment imposed on the applicant.  In its place, we impose a sentence of 5 years and 8 months’ imprisonment.

[1] HKSAR v Law Num Chun (CACC 360 of 2013; unreported, 26 August 2014).

[2] Appeal Bundle, page 13 A-C.

[3] Appeal Bundle, page 12 P.

[4] HKSAR v Chung Ping Kun (CACC 85/2014; unreported, 2 July 2014).

[5] HKSAR v Law Num Chun (CACC 360/2013; unreported, 28 January 2014).

[6] HKSAR v Law Num Chun, paragraph 20.

[7] HKSAR v Manalo [2001] HKLRD 557.

[8] HKSAR v Leung Kwai Ping (No 2) [2003] 2 HKC 575.

[9] HKSAR v Leung Kwai Ping (No 2); at pages 580 G - 581 D, paragraphs 10-12.

[10] HKSAR v Law Num Chun, paragraph 28.

[11] HKSAR v Abdallah [2009] 2 HKLRD 437; page 450, paragraphs 30-1.

[12] HKSAR v Hong Chang Chi [2002] 1 HKLRD 486; page 493 H-I, paragraph 22.

[13] HKSAR v Abdallah; page 453, paragraphs 42-3.

[14]  HKSAR v Chung Ping Kun (CACC 72/2014; unreported, 2 July 2014).

[15] HKSAR v Chung Ping Kun, paragraph 9.