HKSAR v. EVELYN AYAD BUGAAY

CACC 41/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 41 OF 2007

(ON APPEAL FROM HCCC NO. 177 of 2006)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 24 January 2007, the applicant was convicted by a jury, after trial before Deputy High Court Judge Longley, of trafficking in 2.89 kilogrammes of a powder containing 1.90 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  A sentence of 21 years’ imprisonment was imposed on the following day.

2.  The applicant now seeks leave to appeal against her conviction and sentence.

3.  The facts were straightforward and were largely agreed.  The issue at trial related to the applicant’s knowledge of the drugs concealed in her travel-bag.  The applicant did not give evidence at trial but she relied on her account given in interview shortly after her arrest.

4.  Put shortly, the facts disclosed that the applicant travelled by air from Ghana to Ethiopia on 21 April 2006 before she transferred to a flight bound for Hong Kong via Bangkok.  On her arrival at the airport in Hong Kong, she was unable to locate the rucksack which had been her check-in luggage.  She reported the loss to Cathay Pacific Airways staff who requested the key to her rucksack so that it could be sent to the Customs for examination in the event that it was found.  The applicant then supplied her key.

5.  The applicant’s rucksack was eventually located after it had been discovered that it was wrongly labelled for off-loading in Bangkok.  It arrived in Hong Kong on the evening of 24 April 2006 where it was X-rayed.  As it contained a suspicious package, a further test was carried out.  This indicated the presence of cocaine.  The rucksack was then opened with the key left by the applicant.

6.  The quantity of cocaine identified in the indictment was found in a large, single slab concealed inside the lining of the rucksack.  The lining was then sewn back up and the applicant was informed by a customs officer, posing as a member of airline staff, that her luggage had been found.  Shortly after she had been told this, the applicant used her mobile telephone to make a call to Thailand.

7.  The applicant collected her rucksack at 8.00 am on 25 April 2006.  She looked inside it and then left.  She then called the same number in Thailand that she had telephoned in the early hours of that morning.  Shortly afterwards, the applicant was arrested.  She said that the rucksack and the clothing, artwork and personal items inside it were hers.

8.  Later, in a formal interview, the applicant claimed that she was a trader in bags, clothes and other goods which she bought in Ghana and Thailand for sale in the Philippines.  She denied knowledge of the cocaine and stated that when she was in Ghana looking for things to purchase, she realised she needed a larger bag.  She mentioned this to a man she had met there with whom she had been acquainted for about a week.  According to the applicant, this man gave her the rucksack saying, in effect, that he did not need it back.  When the applicant was asked for the name of this person, she said she did not know his full name and there was no way she could make contact with him.

9.  The retail value of the cocaine being carried by the applicant was estimated at $2,225,300.  Aside from the drugs and some items of clothing and a few documents, all that the rucksack contained was a box of chocolates, 5 video compact discs and 4 woodcarvings.

10.  No written grounds of appeal were provided by the applicant in advance of this hearing and during these proceedings the applicant has said nothing which could affect the validity of the conviction.  The applicant wrote a letter in which she referred to a submission written by someone on her behalf.  In this, the suggestion was made that the applicant may not have been given legal representation at an early enough stage and, in particular, before she was interviewed by customs officers.  However, we have checked the record of interview and we have been able to confirm that the applicant was asked if she was prepared to be interviewed without a legal representative present and she replied on two occasions that she was.  She went on to say that she wished to give her explanation.

11.  We have had the opportunity of considering the summing up.  This provided the jury with a fair and balanced summary of the law applicable to the case and to the evidence the jury had heard.

12.  The application in regard to conviction is dismissed.

13.  Turning to sentence, the judge said:

“You can have been in no doubt whatsoever when you agreed to carry these drugs that very severe consequences would follow if you were caught. I have no doubt that you will have been told by those advising you that the normal starting point for those trafficking in between 400 and 600 grammes of cocaine is between 15 and 20 years’ imprisonment. The cocaine involved in this case weighed 1.9 kilograms. In other words, over three times more than the top of the tariff band I have referred to.

I have taken into account that it appears that your role was simply that of a courier. Nonetheless, I am satisfied that this very large quantity of cocaine warrants a starting point of 22 years’ imprisonment.

If you had pleaded guilty, you would have received a reduction of one-third of that sentence. You chose not to do so.

There are three factors which, although individually are not matters of substantial mitigation, collectively have persuaded me that I should discount that sentence by a further period of 1 year. They are your age, which is now 50; your previous good character; and the fact that you will be imprisoned far from home.

I sentence you to 21 years’ imprisonment.” (Appeal bundle pp. 45-46)

14.  With respect, we regard the starting point adopted by the judge as having been remarkably lenient.  It appears that it was taken without reference to the sentences imposed in similar cases involving international couriers trafficking in large quantities of cocaine.  Such traffickers are subject to the same sentencing guidelines in R v Lau Tak-ming and Ors [1990] 2 HKLR 370 at 387 which are applicable to those who traffic in heroin (see: Attorney-General v Pedro Nel Rojas [1994] 1 HKC 342 at 345).  Here, the quantity of cocaine was, as the judge had noted, more than three times the upper tariff limit for 400 to 600 grammes for which the Lau Tak-ming guidelines provide a sentencing bracket of 15 to 20 years’ imprisonment.

15.  As long ago as 1994, Litton V-P stated in R v Ho Chi-ming [1995] 2 HKCLR 29, which was concerned with a courier taking 1.213 kilogrammes of salts of esters of morphine (heroin) to Taiwan, that “there is nothing wrong in principle in adopting, as the judge did, a starting point of 25 years’ imprisonment”.  The prosecutor at trial, as Ms Anthea Pang who also appears in these proceedings, had responsibly brought to the judge’s attention the Court of Appeal’s judgment in HKSAR v Hong Chang-chi [2002] 1 HKC 295 which not only made reference to Ho Chi-ming’s case but also focused on the starting point of 27 years taken by a sentencing judge for a Taiwanese courier who was trafficking in just over 3 kilogrammes of cocaine which he brought into Hong Kong’s airport after a visit by him to Peru.  The judgment in Hong Chang-chi made extensive reference to Pedro Nel Rojas (above) before stating (at page 302):

“24.  This court in HKSAR v Leang Sze Keong (unrep., Crim App No 566 of 1997) was dealing with circumstances which are very similar to the situation which has arisen in the present case. The appellant in that case had pleaded guilty to trafficking in a mixture containing just over 889 gms of heroin hydrochloride which had been strapped to his body after he had arrived on a flight from Bangkok. The sentencing Judge had taken a starting point of 25 years’ imprisonment which this Court upheld.

25.   Similarly, in R v Ho Chi Ming CACC 447/1995, unreported, the applicant in that case, aged 23, was found with a mixture containing just over 1.2 kgs of heroin hydrochloride strapped to his body when he was stopped at Kai Tak Airport as he was about to go to Taiwan. The judge took a starting point of 25 years which this Court found not to have been wrong in principle.

26.   The quantity in the present case was approximately three times the amount in Ho Chi Ming’s case and well over three times the weight of heroin in Leang Sze Keong’s case. Whilst the starting point adopted by the judge in the present case might be considered as being on the high side, it was neither wrong in principle nor manifestly excessive.”

16.  The judge in the present case went on to make reference to a combination of three factors which he said had persuaded him to reduce the applicant’s sentence by a year.  Again, with respect, we have to say that the judge fell into error.  None of the factors to which he referred should have had any effect on the applicant’s sentence.

17.  The first two factors, age and good character, were plainly irrelevant in a matter of this gravity.  The couriers who are selected by international drug syndicates to carry drugs of the value in the present case, almost invariably have no criminal record.  Part of their usefulness to the syndicate is that they are able to pass as normal, law-abiding, passengers whatever their age group.  In any event, as this court has so often said with reference to cases where serious criminal acts are concerned, a clear record (or good character) in itself is not a factor for which a discount is generally appropriate and age will usually be relevant only where extreme youth is concerned.

18.  The third factor taken into account by the judge, which was concerned with the applicant having to spend time in a Hong Kong prison as a Philippines’ national, was again covered by the judgment in Hong Chang-chi (above) and was also a matter of no consequence in regard to sentence.  In particular, with regard to foreign nationals who turn to drug trafficking in Hong Kong, this court stated (at page 302):

“21.  The applicant only came to Hong Kong for the purpose of furthering his criminal enterprise. Anyone who acts in this way, to undermine the laws of Hong Kong, deserves no sympathy. What is more, it should be made clear to non-residents of Hong Kong, whether from the Mainland (or Taiwan) or from far-flung jurisdictions, that if they come here in order to break the law, they will be treated no differently, and certainly no more leniently, than other criminals who are normally resident here.

22.   When it comes to importing drugs from other jurisdictions into Hong Kong, the public interest demands that the message should be made more clearly than in almost any other situation. 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. 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.”

19.  It is important that the principles involved in the sentencing of traffickers such as the applicant in this case should be adhered to or great harm will be done to Hong Kong’s sentencing policy which has for long sought to achieve parity of treatment so far as humanly possible for all such offenders.  A single sentence, such as this, which is considerably out of step will all the sentences which have been imposed in accordance with proper sentencing principles and guidelines can, understandably, lead to feelings of grievance on the part of those who have been properly sentenced.

20.  There can be no purpose in having guidelines for drug traffickers or in providing generalised principles for sentencing if these are merely given lip-service.  Unfortunately, this appears to have occurred in this case where we consider an appropriate sentence would have been 24 to 25 years’ imprisonment.  The applicant is remarkably lucky that she did not receive such a sentence but, as the prosecution has not sought a review, we propose to leave matters as they stand.

21.  The application in regard to sentence is devoid of merit and is dismissed.