HKSAR v. IJO TJIM KIEK AND ANOTHER

CACC 164/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 164 OF 2002

(ON APPEAL FROM HCCC 58 OF 2002)

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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 28 March 2002, the Applicants (D1 and D2) confirmed before Pang J the pleas of guilty they had entered in the Magistrates' Court to trafficking in dangerous drugs. D1 faced one such charge (count 2) and D2 faced two (counts 1 and 3). They were sentenced to overall terms of imprisonment of fourteen years and eighteen years respectively.

2. The facts were straightforward. On 5 August 2001, a surveillance operation at Hong Kong International Airport brought an Indonesian male, 'Hendri K.Y.' (D3) to the notice of observers. He purchased airline tickets in the Departure Hall and then went to join D1 and D2 and gave each of them a ticket. All three then went to an airline's check-in counters where D1 and D2 checked in their luggage at one desk and D3 checked in at a separate desk. After they had been given boarding passes, they were all intercepted and taken to the Customs Search Room.

3. D1 was found to have eleven plastic bags strapped to his body with adhesive bandages. Similarly, D2 was found with twelve bags attached to his body. They were then arrested and questioned through interpreters. On later examination, the bags on D1 and D2 were found to contain approximately 1,386 and 1,248 grammes respectively of methamphetamine hydrochloride ('ice') together with far smaller quantities of other drugs.

4. D1 admitted he was being paid by D3 to take dangerous drugs to Indonesia where his flight, routed through Singapore, would have taken him.

5. D2 also made a clean breast of his involvement. He explained how he had been propositioned by D3 in Singapore to act as a courier for 'ice' from the Mainland to Indonesia. After he had agreed, he was accompanied by D3 to Shenzhen where he watched all the drugs, which were the subject of the counts on this indictment, being packaged. These were then strapped to him so that he could transport the 'ice' and other drugs through the checkpoint at Lo Wu. Afterwards, these drugs were roughly divided between D1 and D2, in D3's presence, before they all set out for the airport in Hong Kong.

6. D2's frank admission to importing the 'ice' (and other drugs) from the Mainland into Hong Kong led to the first count of the indictment alleging against him that he had trafficked in a crystalline solid containing about 2,634 grammes of 'ice'. The third count related to the 'ice' found on him at the airport, the narcotic content of which weighed about 1,248 grammes, together with approximately 21 grammes of cocaine.

7. Count 2 against D1 related to about 1,386 grammes of 'ice' (and small quantities of two other types of drugs).

8. In passing sentence on D1 and D2, the judge said that he considered their pleas of guilty provided them with their only real mitigation. This was, at that time, plainly correct. Whilst both of them had provided some limited assistance to Customs and Excise, they had at that stage refused to provide any more.

9. In D1's case, the judge adopted a starting point on count 2 of twenty-one years' imprisonment which he then discounted by a third to take into account D1's guilty plea.

10. The starting point adopted by the judge for D2 on count 1 was twenty-four years, having regard to the quantity of 'ice' D2 had imported to Hong Kong. In relation to count 3, the judge took twenty years as the starting point. Discounting these sentences, having regard to the pleas, the judge passed sentences of sixteen and thirteen years' imprisonment on counts 1 and 3 respectively. He went on to say that these sentences were for "distinct incidents" which "in normal circumstances .... would have attracted consecutive sentences." However, having regard to totality, he ordered that only two years of the sentence on count 3 should run consecutively to the sixteen-year sentence on count 1, making eighteen years in all.

11. D1, now aged 41, has advanced a written ground of appeal which repeats much of what was said on his behalf in the court below. He referred, amongst other things, to his foreign status in Hong Kong, his inability to understand Cantonese and to the local diet being one to which he was unaccustomed. Coming from Indonesia, D1 complained that he could expect no visitors from his family and he expressed his concern about his elderly father. These, and other matters he raised in court today, could not materially affect the sentence he received.

12. Accordingly, D1's application is dismissed.

13. D2, aged about 58, said in his written grounds of appeal that insufficient regard had been had for his remorse which was reflected in his timely plea. He also referred to his poor health.

14. Additionally, we heard from Mr David Leung, appearing on the Respondent's behalf, that D2 had subsequently provided a statement to the Customs and Excise Department which not only incriminated D3 but may well have been instrumental in causing D3 to plead guilty on 18 June 2002 to trafficking in the total quantity of drugs found in D1 and D2's possession on 5 August 2001. On any view, D3 had played the most significant role in this joint venture and D2's co-operation was most important.

15. In the case of D2, therefore, having regard to the circumstances which have occurred after sentence was passed on him, we consider that the discount on his sentence should now be increased giving him fourteen years' imprisonment on count 1 and eleven years' imprisonment on count 3.

16. We think, furthermore, that it was somewhat artificial to make the sentence on count 3 partly consecutive to the sentence on count 1 when a higher starting point had already, and quite properly, been adopted for the greater quantity of drugs involved in the importation in count 1. We shall order, therefore, that these two sentences should be served concurrently bearing all the circumstances in mind and, in particular, so far as this aspect is concerned, that the two offences were part of one journey on the same day. The drugs in count 3 did not represent another consignment, involving different drugs, in a series of ongoing transactions. Mr Leung very responsibly fully endorsed this view and indeed had invited us to take the course we have adopted.

17. In D2's case, therefore, we shall grant leave and treat the hearing as the appeal. The overall sentence D2 is to serve will be fourteen years, representing a four-year reduction on the sentence imposed in the court below.