HKSAR v. DEWI ILMAYANTI AND ANOTHER

CACC 370/2015

[2019] HKCA 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 370 OF 2015

(ON APPEAL FROM HCCC 410 OF 2014)

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

A.  Introduction

1.  The 1^st and 2^nd applicants[1] were jointly charged with one other (“D1”) with one count of unlawfully trafficking in dangerous drugs, involving over 3 kilogrammes of a mixture containing over 1.4 kilogrammes of heroin hydrochloride and over 450 grammes of 6-monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  This joint enterprise offence was the 1^st count on the indictment and it was particularised as having taken place on 4 April 2014. 

2.  In addition each defendant was separately charged with a trafficking offence that was pleaded as an alternative to the joint enterprise offence.  The alternative count reflected the particular quantity of drugs in which each applicant was unlawfully trafficking.  The alternative count for the 1^st applicant was the 3^rd count on the indictment and was unlawfully trafficking on 4 April 2014 in 1,050.75 grammes of a mixture containing 499.77 grammes of heroin hydrochloride and 148.30 grammes of 6-monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  For the 2^nd applicant the alternative charge was the 4^th count on the indictment and was unlawfully trafficking on the same day in 842.42 grammes of a mixture containing 418.78 grammes of heroin hydrochloride and 119.92 grammes of 6-monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

3.  On 29 July 2015, the 1^st and 2^nd applicants and D1 pleaded not guilty to the 1^st count but guilty to their respective alternative counts.[2]  These pleas were accepted by the prosecution and following their conviction of these offences before Madam Justice Barnes (“the judge”), the 1^st count was ordered to be left on the court file and not be proceeded with without the leave of the court.  On 16 October 2015, the applicants were both sentenced to terms of 14 years’ imprisonment.[3]

4.  On 23 October 2015, both applicants filed Notices of Application for Leave to Appeal (Form XI(s)) against their respective sentences.[4]  The 1^st applicant was refused legal aid on 4 December 2015 but on the same day the 2^nd applicant was granted legal aid. 

5.  When the applications first came on for hearing on 21 December 2016 it was necessary to adjourn them to enable certain enquiries to be made.  In light of what emerged at this first hearing we granted legal aid to the 1^st applicant.

6.  At the resumed hearing of the applications we reserved our judgment which we said we would hand down at a later date.  This is our judgment.

B.  The background to the offences

7.  According to the Summary of Facts, admitted by the applicants and used for the purpose of their sentencing, the three women arrived at Hong Kong International Airport at around 2:45pm on 4 April 2014.  Immigration movement records also showed that they had previously travelled together through different control points in Hong Kong on a total of 25 occasions since 18 September 2013. 

8.  On the same day they travelled in a private car, with others, leaving Hong Kong for the Mainland via Shenzhen Bay Control Point. At around 4 pm that day the car was stopped for customs clearance and the applicants were searched.  They were found to have packets of dangerous drugs concealed on their persons in the quantities that are particularised in their respective counts.

9.  The applicants and D1 were arrested and cautioned. In response D1 said “It is chemical things” but denied knowing the nature of the substance in the packets.  She claimed that the packets belonged to a friend in Kuala Lumpur who had asked her to help him bring the packets to Guangzhou where she would receive about US$1,000 as a reward. 

10.  The 1^st applicant also denied knowing what the substance was in the packets she was carrying about her person and also claimed that they had been given to her by a friend in Kuala Lumpur.  She said she was asked by this friend to bring the substances to Shenzhen and in return for so doing she was provided with a free air ticket. 

11.  The 2^nd  applicant claimed under caution that the packets secreted on her body did not belong to her.  She admitted she had carried them to Hong Kong but she said she had received no remuneration for so doing.  She was then asked by the Customs Officers who owned the drugs and with the assistance of the interpreter she wrote down D1’s name in the officer’s notebook. 

12.  In a subsequent video-recorded interview, D1 claimed that she went to Malaysia alone on 1 April 2014 and was later joined by D2 and D3.  All three of them shared one hotel room.  A Nigerian man whom she knew by the name of “William” came to their hotel and asked them to deliver some goods for him to Guangzhou.  D1 claimed she did not know what the goods were but she still agreed to deliver them and concealed them in her bra.  She also saw William giving some of the goods to D2 and D3 and they also concealed them in their bras.  William told D1 that each of them would receive US$1,000 as a reward.

13.  In their video-recorded interviews, the 1^st applicant declined to answer all questions relating to the drugs she was carrying, but the 2^nd applicant did explain the background to her conduct.  The 2^nd applicant claimed that she had travelled to Malaysia together with the 1^st applicant for business.  Whilst there, the two of them joined D1 at a hotel and D1 gave her (the 2^nd applicant) some goods which she concealed inside her bra.  The 2^nd applicant claimed that she did ask D1 what the goods were but D1 did not answer her.  D1 then gave more goods to her and suggested that she insert them inside her vagina, which the 2^nd applicant then did.

14.  The estimated retail value of the dangerous drugs seized from the 1^st and 2^nd applicants was HK$708,205.50 and HK$567,791.08[5] respectively. 

C.  The mitigation advanced on behalf of the defendants

C.1  D1’s mitigation

15.  Because of the matters relied on by the applicants in their grounds of appeal, it is necessary to know what transpired in respect of D1.  In addition to her plea of guilty the other mitigation advanced on behalf of D1 was a claim that she had provided assistance to the Customs and Excise Department in respect of the drug trafficker on whose behalf she was couriering the drugs.  She gave statements to Customs Officers and once she was given access to her telephone on 21 August 2015 she was able to provide them with a photograph of her drug trafficker handler and identify him.  Her counsel said that this information had been sent to the Malaysian Customs attaché at the Malaysian Embassy.  The judge responded to this submission by saying that she could not take it into account without confirmation that the information provided by D1 turned out to be useful.

C.2  The 1^st applicant’s mitigation

16.  The 1^st applicant was 30 years old at the time of her sentence.  She was born in Jakarta where she lived with her parents and one of her sisters before committing the present offence.  Her counsel, Ms Diane Crebbin, informed the court that the 1^st applicant had come from a good family background and had obtained an undergraduate degree and was studying for her Masters degree in Economics.  She was a person with no criminal record and had previously worked in various banks, earning around HK$1,800 per month.  Whilst studying for her Masters degree she had run a clothing shop which provided her with a monthly income of about HK$1,500. 

17.  Ms Crebbin said that the 1^st applicant and the 2^nd applicant travelled to Malaysia on 3 April 2014 to see D1 and it was whilst they were there that they were introduced to a Nigerian male called William.  William asked all three women to transport articles on their bodies.  Ms Crebbin then said:

“At that stage, my client says she wasn’t aware of what it was she was being asked to do exactly because she was originally told that these were chemicals and were safe to carry. But obviously, she admits now that she realised very soon that what she must be carrying was dangerous drugs and that is why she obviously offered her plea of guilty as soon as she did in this case.”[6]

18.  Ms Crebbin said that the 1^st applicant maintained that she did not know exactly what drugs she was carrying or what the plan was for delivery.  She also maintained that she was not paid any large sum of money and was given only free travel and accommodation.

19.  Ms Crebbin accepted that the only real mitigating factor was her client’s guilty plea.  She informed the court that the 1^st applicant was remorseful for what she had done and for the effect her crime had had on her family.  She had tried her best to assist the authorities by identifying William but her efforts had not, as yet, borne any fruit. 

20.  Ms Crebbin urged the court to consider a starting point at the lower end of the relevant sentencing band so as to give credit for the 1^st applicant’s previous good background and her willingness to assist the authorities.  She submitted that there was no evidence to show that her client was the mastermind of these offences or was part of an international drug trafficking syndicate; rather, it was said, she was just a foolish courier.

21.  In the course of Ms Crebbin’s submission the judge indicated that it appeared to her that the culpability of each of the three women was the same.  They were all together in a room with the man William and he was distributing amongst them the various packets of drugs for them to conceal about their person.  In these circumstances there was, the judge felt, a certain amount of random chance as to the total weight of drugs which each woman ultimately transported.  Ms Crebbin did not try and dissuade the judge from this view.

22.  The exchange between the judge and Ms Crebbin, which we quote below, reveals the way the judge was thinking and helps in understanding why she subsequently sentenced the applicants as she did.

“COURT:  And the amount of 100 grammes seems to be a lot when you hear the hundred. But when you look at the actual amount, it’s very difficult to tell whether it’s 100 more or 100 less or 50 more or 50 less. So my view really is that even though they’re all in the region of between 5 to 7 - it’s over 700 in fact, over 500 to over 700 – I personally feel at the moment that their culpability is just the same. Everyone of them is the same.

MISS CREBBIN:  My Lady, I don’t think I can argue with that. I think that is understandable in this case.

COURT:  So, you know, I don’t think they’ll say, ‘Well, just because you carry a hundred more, so you have 2 more, 2 more years. You carry 50 less, you have 1 year’. I just don’t feel -- because quantity is only one factor for me to consider and of course it is an important factor because it will point to which area that I have to consider and with this one, if it is just all under 500, then I will just look at Lau Tak-ming, I don’t have to look at anything else.

But because it’s over but not quite the 1 kilogramme, so I look at Abdallah as well because there have been guidelines since Abdallah to say from 600 to 1 kilo, what would that be. But still, I just feel that it wouldn’t be correct and I think they might actually also feel aggrieved, among the three of them, that, well, it just so happened that the packets you have is a bit more then you ended up having a year or two longer sentence and the other one is shorter.” (Emphasis added.)[7]

C.3  The 2^nd applicant’s mitigation

23.  The 2^nd applicant was 35 years old at the time of her sentence and was of clear record.  Her counsel, Mr Kamlesh Sadhwani, informed the court that the 2^nd applicant was well educated and had previously worked in banks.  She was married in 2007 and divorced in 2013.  At the time of her divorce she was left with large debts incurred by her husband and herself during their marriage but which the husband, after the divorce, refused to help her repay.  

24.  Mr Sadhwani submitted that his client was merely a foolish mule, being used by the mastermind “William”. Mr Sadhwani urged the court to take into account the 2^nd applicant’s willingness to assist the authorities, albeit that assistance was not fruitful.  He said that the 2^nd applicant had also given a photograph of the person “William”.  The judge responded to this submission as she had responded to counsel for D1, saying that she could not have regard to the assistance provided by the 2^nd applicant unless she could be persuaded that it had proven to be useful.

25.  When the judge referred Mr Sadhwani to her view on the equal culpability of the applicants, Mr Sadhwani submitted that the sentencing regime was based on the weight of the narcotic and as the 2^nd applicant transported a much lower weight of narcotic she had to receive a lesser sentence than her co-defendants.  In response to this submission the judge indicated that though she was tied to a particular sentencing band for each offender she could exercise her discretion as to where within the particular band she would adopt her starting point.   

D.  The judge’s Reasons for Sentence

26.  After setting out the circumstances of the offence and the mitigation advanced on behalf of each of the three defendants the judge stated that the appropriate starting points for trafficking in heroin hydrochloride were determined by the sentencing guidelines laid down in R v Lau Tak Ming and Anor[8] and HKSAR v Abdallah[9].  For a quantity of narcotic weighing between 600-1,200 grammes the sentencing band is 20 to 23 years’ imprisonment and for 400-600 grammes is 15-20 years.  Before ascertaining the appropriate starting point, the judge noted that the amount of dangerous drugs found on each person was different, with D1 carrying 748.22 grammes; the 1^st  applicant carrying 648.07 grammes and the 2^nd  applicant carrying 538.70 grammes.  Of the differences in the amount of dangerous drugs that each of the defendants carried, the judge commented:

“Whilst I take into consideration the actual amount involved, I do bear in mind the circumstances or how each of the three came to commit the offence and their criminal culpability appeared to be very similar. There is no evidence that D1 was a leader among the group so she carried a larger amount. It does appear to be that it was simply a matter of distribution of the various packets and D1 happened to have the larger amount and D3 the smallest.

As the quantity is not the only factor for consideration, though an important factor, I am of the view that in the circumstances of this present case, all three should receive the same starting point: D1, 20 years; D2, 20 years; D3, 20 years.”[10]

27.  The judge turned to enhancement of this starting point to allow for the presence of the aggravating factor of the international element. Applying the decision of the Court of Appeal in HKSAR v Chung Ping Kun[11], the judge enhanced the starting point by 1 year to reach a sentence of 21 years’ imprisonment for each defendant. 

28.  The judge then went on to consider the applicants’ respective mitigation with a view to assessing the amount by which the sentences should be discounted.  The judge concluded that apart from their respective guilty pleas, no other grounds existed to justify any further reduction.  In respect of their assistance to the Customs and Excise Department and the Malaysian authorities the judge said:

“I appreciate that each defendant is willing to assist the authorities and they have tried their best to do what they can but, unfortunately, no fruitful outcome has appeared and for the purpose of sentencing, I cannot just take into account their willingness to reduce the sentence, so there is no basis to reduce the sentence on the basis of their willingness to assist the authorities.”[12]

29.  A full one-third discount was given to the applicants for their guilty pleas and the applicants were each sentenced to 14  years’ imprisonment.

E.  The grounds of appeal

30.  Mr Sadhwani appeared for both applicants at the resumed hearing of their applications for leave to appeal and filed Perfected Grounds of Appeal for each of them. 

E.1  The 1^st applicant’s Perfected Grounds of Appeal

31.  In his Perfected Grounds of Appeal for the 1^st applicant Mr Sadhwani asserts that the 1^st applicant is entitled to a sentence reduction for the information which she and the 2^nd applicant provided to the authorities on “the organizer of drug trafficking operations in Malaysia which was valuable and sufficient to apprehend or pursue active lines of enquiry.”  He goes on to specify the nature of this information, describing the applicants as having:

“… supplied photographs, name and by-names and the address of the person concerned along with a location he was known to frequent. This should have been adequate to track this person down.”

32.  The 1^st applicant gave her information to a Customs Officer in a non-prejudicial statement dated 9 July 2015, some 15 months after her arrest.  In this statement, a copy of which was provided to us, she gave the name of “William”, his nationality, his date of birth, his address, his mobile telephone number and a list of locations that he often visited.  She subsequently gave a photograph of “William” to Father Wotherspoon (“Father Wotherspoon”) but this photograph did not reach the respondent until 21 December 2016.

33.  It is Mr Sadhwani’s submission that if this information did not lead to a fruitful result it can only have been due to inaction by the authorities in Malaysia and this should not operate to the prejudice of the two applicants.[13] In support of this submission, which he also makes on behalf of the 2^nd applicant, Mr Sadhwani relies on additional evidence which he sought to adduce pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221.  

E.2  The 2^nd applicant’s Amended Perfected Grounds of Appeal

34.  In his Amended Perfected Grounds of Appeal for the 2^nd applicant Mr Sadhwani relies on four areas where he says the judge erred thereby resulting in a sentence that was manifestly excessive.  These are:

(a)  the judge erred in taking into account the drugs possessed and trafficked by the other defendants when sentencing the 2^nd applicant;

(b)  the judge erred in not calculating the starting point for the 2^nd applicant’s sentence based upon the weight of the drugs trafficked by the 2^nd applicant and in adopting the same starting point as the other defendants even though the other defendants had trafficked in significantly higher amounts of drugs;

(c)  the judge erred in holding that the culpability of the 2^nd applicant and the other defendants was the same;

(d)  the judge erred in having regard to the fact that the three women appeared to be part of a joint enterprise crime and using this fact as justification for departing from adopting a starting point based on the actual quantity of narcotic trafficked by each defendant; 

(e)  the judge erred in adopting a higher and manifestly excessive starting point than that laid down in R v Lau Tak Ming;

(f)  the Court of Appeal should reduce the 2^nd applicant’s sentence to allow for post-arrest and post-sentence assistance to the authorities;

(g)  prior to their sentencing, the applicants provided the authorities with information on the organiser of drug trafficking operations in Malaysia; and

(h)  if this information has turned out to be fruitless it is not the fault of the applicants.  The information they provided was sufficiently detailed and any failure by the Malaysian authorities to properly act on it should not operate to the applicants’ prejudice.

35.  Grounds (a)-(e) are, in effect, the one ground of appeal as are grounds (f)-(h), which duplicate the grounds of the 1^st applicant.

36.  In his written submission Mr Sadhwani argues that the correct starting point for unlawfully trafficking in 538.70 grammes of heroin hydrochloride and 6-monoacetylmorphine hydrochloride should be around 18.5 years’ imprisonment under the tariff laid down in R v Lau Tak Ming.  Mr Sadhwani submits that the judge was wrong to depart from it and adopt a starting point of 20 years’ imprisonment. Had she adopted a starting point of 18.5 years’ imprisonment and then enhanced this by 12 months, and no complaint is made about this amount of enhancement, she would have reached a final starting point of 19.5 years’ imprisonment. When this figure is discounted by one-third to allow for the 2^nd applicant’s guilty plea the judge would have imposed a final sentence “less than or in the region of 13 years instead.”[14]

37.  Mr Sadhwani further argues that when a defendant pleads guilty to a charge, the Summary of Facts admitted and agreed to by the defendant forms the factual basis upon which that defendant is sentenced.  Since the 2^nd applicant only admitted to having trafficked in the quantity of dangerous drug concealed on her person, the judge was wrong to depart from the factual basis that was admitted by her.

38.  He submits that by adopting a starting point higher than that prescribed by the sentencing tariff in R v Lau Tak Ming, the judge had acted contrary to the policy of the courts, as expressed by the Court of Appeal in its judgment in HKSAR v Manalo[15], of achieving consistency in sentencing in drug trafficking offences by sentencing for the weight of the narcotic being trafficked. 

39.  Mr Sadhwani also refers to the judgment of the Court of Appeal in HKSAR v Somphaksorn Lamyai & Anor[16] which involved two Thai nationals carrying heroin from India into Hong Kong with the Mainland as their intended destination.  He submits that, contrary to the judgment in this case, the judge had erroneously treated the circumstances of the apparent joint-enterprise, of which they had not been convicted, as a reason for treating them as being of equal culpability for the purpose of sentencing. 

40.  In respect of the 2^nd applicant’s assistance to the authorities we are informed that she had given a non-prejudicial statement dated 4 August 2015, some 16 months after her arrest.  It is apparent from this statement, a copy of which was provided to us, that the taking of it was prompted by a letter which the 2^nd applicant wrote to her lawyer in which she provided information about D1’s boyfriend, the person known to her as “William”.  In this letter she gave her lawyer William’s full name, nicknames and address.  She also later provided her lawyer with a photo of “William” that had been given to her by her family.  Her lawyer then forwarded the 2^nd applicant’s letter and the photo of “William” to the Customs and Excise Department.  In her non-prejudicial statement she described “William” as the mastermind of the drug trafficking as he was the person who gave D1 the drugs that all three women then transported to Hong Kong.  In her statement she was asked if there was any more information she wanted to provide in respect of “William” and she then told the Customs Officers of specific places in Kuala Lumpur that he would frequent.    

F.  The application under section 83V of Cap 221

41.  By Notice of Motion dated 22 March 2019 the applicants applied to adduce fresh evidence at the hearing of their appeals being two affidavits of Father Wotherspoon dated 16 October 2017 and 15 March 2019.  The grounds of the application were that the evidence in the affidavits was not available at the time of sentence and had it been it would have been taken into account by the sentencing judge who in consequence would have imposed lower sentences on the applicants for their assistance by the authorities.

42.  In his first affidavit of 16 October 2017 Father Wotherspoon explained how he had travelled to Kuala Lumpur in September 2017 to see if he could locate the Nigerian male called “William” whom the applicants alleged was their handler.  He went to a flat whose address had been given by the applicants and was armed with the photo of “William” that had previously been supplied by the applicants to the Customs Officers.  From enquiries he made he was able to confirm that the person “William” had moved to a different flat but in the same apartment building.

43.  In his second affidavit of 15 March 2019 Father Wotherspoon deposed that he had returned to Kuala Lumpur and on 22 January 2019 had revisited the apartment complex where “William” was living.  He video-recorded a conversation with security personnel there during which he showed them the photo of “William”.  They recognised him as a person called “Benson” and gave his address but said that after renting premises there with other men for 2-3 years he had moved out in September 2018.  They provided him with Benson’s mobile telephone number which Father Wotherspoon called but when it was answered by a woman he ended the call.

44.  We received oral testimony from Father Wotherspoon on both 12 December 2016 and 10 April 2019.  Father Wotherspoon said other female inmates who have been involved as drug mules in trafficking drugs to Hong Kong have claimed to have been sent by “William” but that they were afraid of him because he had their family contacts in Indonesia.  In fact D1 was a girlfriend of “William” and had contracted HIV from him.  She died from this disease in 2018 and after her death the applicants and other women who couriered drugs for “William” have been more forthcoming with the authorities.  Father Wotherspoon thought there was a possibility, which he could not confirm, that “William” and another had been arrested by the Malaysian authorities.

45.  After the hearing was concluded the respondent provided the court with 4 non-prejudicial statements of D1 dated 18 March 2015, 1 April 2015, 15 April 2015 and 21 August 2015 and a letter from D1 dated 24 August 2015 to which there was attached two photographs.  In addition the respondent forwarded a total of three non-prejudicial statements that had been provided by three female traffickers who had couriered drugs into Hong Kong from Malaysia.  These were the women to whom Father Wotherspoon had referred.  One of the women identified a photo of “William” as the person who was her handler whilst the other two declined to provide information.

46.  In D1’s non-prejudicial statements and letter she explained who her boss was and that he recruited Indonesian women as his couriers.  She gave identifying particulars of him, a photograph of him from her mobile telephone and two other photographs of him that she had subsequently received from her family.

G.  Action taken by the respondent

47.  The Hong Kong Customs and Excise Department liaised with the Malaysian Embassy in Beijing in passing on to the Malaysian authorities the intelligence about “William” and following up with them on whether this intelligence had been of any value to the relevant law enforcement agency.  In addition, on 14 December 2017, the respondent sent a Mutual Legal Assistance (“MLA”) request directed to the Attorney General of Malaysia.  This request sought answers to the following questions:

(i)  whether “William” had been arrested by the Royal Malaysian Police;

(ii)  whether he had been released on bail after being arrested and, if so, when he is due in court for trial;

(iii)  whether he has been convicted and if so for what offence and what sentence he received;

(iv)  where “William” is serving his sentence;

(v)  what William’s full name, date of birth and passport number are; and

(vi)  whether the information provided by the applicants through the Hong Kong Customs and Excise Department to the Malaysian Embassy in Beijing had been useful in apprehending “William”.

48.  The MLA request sought the same information in respect of another person who was believed to be an associate of “William”.

49.  The Attorney General’s Chambers of Malaysia replied to the MLA request on 13 June 2018, stating that there was no record of an arrest of the person “William” or of the other suspect “based on the limited and general particulars provided” and without further identifying particulars of them the requested information could not be provided from police and immigration records.

50.  The respondent helpfully prepared, for the assistance of the court, a Chronology and Trail of Documents which revealed all that had happened in the course of the Hong Kong Customs and Excise Department’s liaison with the Malaysian authorities and the communications with Father Wotherspoon and the 2^nd applicant’s legal representatives.  The respondent also provided the court with a copy of the MLA request, and accompanying documents, and the Malaysian Attorney General’s Chamber’s reply to it.

H.  The court’s ruling on the new evidence and other materials

51.  We are satisfied that it is in the interests of justice to receive the evidence of Father Wotherspoon and to have regard to all the other materials placed before us by the respondent.

I.  The respondent’s submissions

52.  In respect of the applicants’ claims for a sentencing discount based on their assistance to the authorities, Mr Simon Kwong, for the respondent, submits that the information provided by them was provided by Customs and Excise Department to Malaysian Customs but did not bear any fruit in that the Malaysian law enforcement agencies did not arrest “William” or any other culprit related to this case.  There was no evidence that the fruitless result was caused by any culpable inaction on the part of the Hong Kong Customs and Excise Department or overseas law enforcement agencies. 

53.  Mr Kwong accepts that the requirement that the assistance “bear fruit” was no longer part of our law and that in HKSAR v Kilima Abubakar Abbas[17] the Court of Appeal had adopted a broader test of whether the information or assistance provided to the authorities was “of practical use”.  However, he argues that here the information provided by the applicants was mostly publicly available information obtained from social media sites and was not confidential “insider” information.  He asserts that the information had not been of any assistance to the Malaysian authorities.

54.  Mr Kwong also refers to the delay of the applicants in providing the information which he claimed “would render the information of no practical value for further investigation.”[18]  He also submits that the “public” nature of the information made it unlikely to be reliable.  No drug lord, he said, would advertise himself in this way.

55.  In respect of Father Wotherspoon’s evidence Mr Kwong submits that it was mostly hearsay and Father Wotherspoon had not in fact seen the person “William”.  Even if the information was correct, it only goes to the question of whether the address was accurate and did not prove that the information would be useful for the purpose of further investigation.

56.  Underlying his submissions is his contention as to how the usefulness of assistance which was only the provision of information, was to be determined.  At [25] of his submission he expresses his position as follows:

“… However, in the absence of any benchmark for measuring the usefulness of the information when no one was arrested (as in the present case), the Respondent submits that there must be some objective evidence that shows the information provided was reliable, genuine and accurate, and the burden of proving the same falls on the accused.”

57.  In respect of the 2^nd applicant’s first ground of appeal Mr Kwong submits that the judge did not take into account the amount of drugs possessed by D1 and the 1^st  applicant when sentencing the 2^nd  applicant and it was clear from her Reasons for Sentence, that she was well aware that the 2^nd  applicant fell into a different sentencing band namely, the 15 to 20 years’ imprisonment band.  Mr Kwong submits that the judge, in the exercise of her sentencing discretion, was entitled to adopt a starting point within the relevant sentencing band that was higher than an arithmetically calculated, quantity based, starting point by taking into account, as aggravating factors, the fact that the 2^nd applicant had knowledge of the full extent of the trafficking operation and that the whole escapade was clearly pre-meditated, well-planned and organized.  Such an approach did not violate the principle of consistency emphasized in HKSAR v Manalo. 

58.  In effect, Mr Kwong’s submission is that the judge reached the right sentence by the wrong route as her approach to her assessment of the applicants’ culpability was contrary to the Court of Appeal’s judgment in HKSAR v Somphakorn Lamyai & Anor.  

J.  Discussion

59.  There is no doubt that the judge was wrong to treat all three defendants as equally culpable because she viewed the reality of their situation as being that they had participated in a joint enterprise.  Once the prosecution agreed to accept pleas of guilty to only the quantities of dangerous drugs that each defendant carried on their person then they fell to be sentenced for their respective quantity only.  The legal position, and the policy reasons underlying it, were fully analysed and explained by Stock JA, as Stock NPJ then was, in giving the judgment of the Court of Appeal in HKSAR v Somphaksorn Lamyai & Anor.  At pages 441D-442E he said:

“19. The second factor which motivated the judge to some leniency related to what he referred to as ‘the chance capacity’ which resulted in the second applicant carrying more drugs than the first. By this, he was referring to the fact that D2 was a larger person who, by reason of her physical build, compared to that of the first applicant, could hold, and was chosen therefore to hold, a greater quantity of drugs than D1. It was thus a matter of pure chance that D2 was carrying more than D1.

20. What the judge did was to decide, for that reason, to start in the case of D2 at the lowest end of the Lau Tak Ming sentencing bracket for the quantity of drugs she was carrying, namely, 12 years’ imprisonment rather than one in the region of 14 years’ imprisonment; and reduced that to one of 8 years’ imprisonment by reason of the plea of guilty and then to reduce it further by six months because of the mitigation relating to her husband.

21. We fully understand the judge’s view that apparent justice as between the two applicants could best be served by minimising the gap between the sentences imposed upon them. As against that, however — and the issue is not an easy one — are other considerations.

22. In Lau Tak Ming, it was said (at 386H) that the court had to guard against ‘the tailoring by the dealer of the quantities he sends out into the street and procures for his sellers to sell, his couriers to carry or his storekeepers to keep so as to reduce, for them, the length of the inevitable custodial sentence which will be passed on conviction.’

23. That consideration is relevant to the situation with which the judge in this particular case was faced. If it becomes sentencing policy for our courts significantly to reduce the sentence of one courier because, as a matter of chance, he or she happens to carry significantly more drugs than his or her fellow courier engaged upon the same escapade, so as to narrow the disparity occasioned by this happenstance, one can rest assured that before long it will not be a happenstance, and that the dealer will so design matters in this way to play the sentencing bands.

24. Furthermore, the course adopted by the sentencing judge in this case will create a sentence (sic) of grievance — justifiable grievance in our view—for those couriers who traffic in larger quantities on their own and then see that some other courier carrying the same quantity has received a substantially lower sentence because he or she has acted as a courier in conjunction with another.

25. Further still is the point made by this court, differently constituted, in two consolidated cases HKSAR v Bunloun Jantakarn and HKSAR v Phaenthong Kanokwan [2008] HKCU 1297 (CACC 397 and 466 of 2007, 19 August 2008, unreported), at para 17 that:

‘Almost every trafficker who acts as a courier will take what he or she is given, unaware when doing so of the precise weight of the narcotic or active ingredient in the mixture. In this sense, it is mostly a matter of chance which leads one trafficker to be in a higher bracket for sentencing purposes than another when the tariff is always dependent on the narcotic weight being carried, a factor over which the trafficker will seldom have any control. …’

26.  In addition, it might well be said that the applicants were fortunate not to have been charged with one count of trafficking in the total quantities carried by both since, on its face, this was a joint enterprise in relation to that total quantity. That is not to suggest that as an aggravating feature but it is the reality of the matter.”

60.  The judge having erred it now falls to us to sentence the applicants afresh.  The proper starting points for the 1^st applicant for the total quantity of narcotic in which she trafficked, namely 648.07 grammes, is 20 years 2 months’ imprisonment and the proper starting point for the 2^nd applicant for the total quantity of narcotic in which she trafficked namely 538.70 grammes, is 18 years 5 months’ imprisonment. 

61.  We do not agree with Mr Kwong that the judge could have treated the knowledge that the applicants had of the joint enterprise as an aggravating factor thereby entitling her to adopt a higher starting point within the relevant band.  The knowledge possessed by the applicants does not change their status within the hierarchy of the drug trafficking syndicate; they are still only couriers.  Furthermore, to punish them for their knowledge is to, in effect, treat them as being convicted of a joint enterprise crime.  When the prosecution accepted pleas to the alternative counts they gave up any right to have the applicants sentenced on the basis that they were a party to a joint criminal enterprise.

62.  We turn now to enhancement for the international element.  Notwithstanding the difference in the weight of narcotic that each applicant carried, we are satisfied that the judge’s enhancement of 1 year is appropriate for both of them.  Although the reality that they were in fact participants in a joint criminal enterprise and that there was a degree of randomness in the quantity of dangerous drug in which each trafficked cannot be taken into account when adopting the starting point for sentence, we are satisfied that regard can properly be had to it when determining the amount of enhancement for the international element.  This is subject to the caveat that the differences in the quantity of drugs being trafficked by each courier are not too great.  In our view it provides justification in the present case for treating the two applicants equally.  Consequently, the final starting points that should have been adopted by the judge for each applicant is 21 years 2 months’ imprisonment and 19 years 5 months’ imprisonment, respectively.

63.  This now brings us to the question of whether the assistance the applicants provided to the authorities entitles them to any discount in addition to the one-third discount for their guilty pleas.

64.  In respect of all three women there was clearly delay by them in deciding to assist the authorities. Normally, delay is the enemy of law enforcement in exploiting the intelligence provided by those involved in on-going criminal activities.  The arrest of persons who can incriminate others will usually lead to those others changing their places of residence, telephone numbers and even their identities.  Defendants must decide quite quickly after their arrest whether they are going to assist the authorities.  The longer they leave that decision the less useful their assistance is likely to be.

65.  Given the delay in the present case no court would accept an assertion that the information was still of use to law enforcement unless there was independent evidence establishing its on-going utility. 

66.  Here, the information the applicants provided on matters such as William’s address would normally be so outdated as to be useless.  However, the evidence of Father Wotherspoon has shown that not to be so.  “William” continued to live at the address provided by the applicants well after their arrest.  Perhaps the fact that he did so is a reflection of his confidence that his female couriers would not betray him and that he may not be a “drug lord”.  On the information provided to us “William” would appear to be no more than the recruiter and handler of female couriers on behalf of a drug lord.

67.  We are satisfied in the circumstances as revealed by the evidence we have received that delay is not a basis for rejecting the claim of the applicants that their information was of practical use to law enforcement.  

68.  Consequently, notwithstanding the delay that occurred in the present case, we still have to determine whether the information the applicants provided was of practical use.  Although the fact that no prosecution resulted is no longer determinative of the question of whether the intelligence was of practical use, the fact that it did not lead to a prosecution may well be indicative that it was not.

69.  Mr Kwong, understandably, makes much of the fact that there was no successful outcome from any action that might have been taken by Malaysian law enforcement agencies.  However, we do not know why the Malaysian authorities were not able to develop the intelligence into a productive result and it is not appropriate for us to speculate as to the reasons.  The response to the MLA request suggests that no investigation based on this intelligence was commenced and that the Malaysian authorities did no more than conduct departmental record checks.  In those circumstances we do not see that the fact that the provision of the intelligence to the Malaysian authorities did not result in a productive law enforcement outcome is a particularly weighty consideration on the question that we must now answer of whether the intelligence was of practical use.

70.  In assessing whether the information provided by the applicants can be properly and fairly described as intelligence of practical use Mr Kwong invites us to look for objective evidence which shows that the information is “reliable, genuine and accurate.”  We agree.  It would be rare for a court to base its assessment on the bare assertion of a defendant.[19]  However, in the present case we do not have just the bare assertions of the applicants.  We have the benefit of a large amount of evidence placed before us by both the applicants and the respondent.   

71.  Mr Kwong submits that the information provided was mostly obtained from social media sites and was not truly insider information which law enforcement could not access.  It is true that certain information was obtained from social media sites but that was only after the person “William” had been identified by the applicants.  It is clear to us that the information provided by the applicants on the person known to them as “William” was sufficiently detailed and specific to allow for this person to be identified. If Father Wotherspoon could use it to locate “William” we do not see why law enforcement agents of the state could not achieve similar success.

72.  The true value of the applicants’ assistance lay in their being able to identify “William” so that he could then be tracked down through an investigative process.  Without the applicants’ assistance the authorities would only know that they were looking for a black man called “William” who was operating female drug couriers out of Kuala Lumpur.  Such general information is no value at all and leaves law enforcement looking for “a needle in a haystack”.  Kuala Lumpur is a city with a large population so knowing in which “haystack” to look does not assist in locating the “needle”.  But, once “William” was identified an investigative process could then make use of any source of information, be it public, private or governmental, to locate him and monitor his activities.

73.  We are satisfied on the evidence we have accepted that the information provided by the applicants was not out-dated, erroneous, unreliable or in any way deficient and can be properly and fairly described as intelligence that was, and still is, of practical use. It is now necessary to assess what sentencing discount is appropriate for such intelligence.

74.  Assistance to the authorities entitles a defendant to an additional discount beyond the one-third for the plea of guilty.  Where that assistance is only the provision of information that is of practical use but does not result in successful law enforcement action the appropriate discount will usually be in the range of 33.3%-40%. Having regard to all the circumstances of this case we are of the view that a total sentencing discount of 37% is appropriate to reflect the assistance provided by the applicants to the authorities.  From final starting points of 21 years 2 months for the 1^st applicant and 19 years 5 months for the 2^nd applicant the discounted sentences become 13 years 4 months’ imprisonment and 12 years 2 months’ imprisonment respectively.

K.  Disposition

75.  For these reasons we allow the applications by both applicants for leave to appeal their sentences, set aside the sentences of the judge and in substitution for them sentence the 1^st applicant to 13 years 4 months’ imprisonment and the 2^nd applicant to 12 years 2 months’ imprisonment.  

21 December 2016

10 April 2019