|
CACC 171/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 171 OF 2015
(ON APPEAL FROM HCCC NO. 261 OF 2014)
____________
| BETWEEN |
|
|
| |
HKSAR |
Respondent |
| |
and |
|
| |
MANJAIARRAYA Natthasiri |
Applicant |
____________
| Before : Hon Lunn VP and Macrae JA in Court |
| Date of Hearing : 10 December 2015 |
| Date of Judgment : 10 December 2015 |
____________
J U D G M E N T
____________
Hon Lunn VP (giving the Judgment of the Court) :
1. The applicant, who appears in person, seeks leave to appeal out of time against the sentence of 15 years and 4 months’ imprisonment imposed on her by Deputy High Court Judge Tallentire, following her conviction on her plea of guilty on 16 March 2015 to one count of trafficking unlawfully on 5 January 2014 in a dangerous drug, namely 1,571.57 grammes of methamphetamine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
2. On 21 May 2015, the applicant filed a Notice of Application for leave to appeal against sentence out of time.
The facts
3. At about 5:20 p.m. on 5 January 2014, the applicant was intercepted by Customs Officers as she was checking in for a flight to Phuket, Thailand, at the Hong Kong International Airport. On the morning of 5 January 2014 she had arrived in Hong Kong via the Shenzhen Bay Control Point. A search of her suitcase revealed 12 plastic bags, each of which contained packets labelled ‘Card Reader’. Some of the plastic bags contained USB card readers, others USB chargers and yet others contained plastic tubes, which were found to contain 1,571.57 grammes of methamphetamine hydrochloride the subject of the count on the Indictment. They had an estimated street retail value of $679,745.
4. Having been arrested and cautioned, the applicant said that the items contained in her luggage were USB devices, given to her in the Mainland by Dor, an African male friend, for her to take to Thailand to deliver to his friend, although she was not to receive any reward. She was told that she would be contacted on arrival in Thailand.
5. In a subsequent video-recorded interview under caution, the applicant said that she lived and worked in Bangkok. She went to Guangzhou on 30 December 2013. This was the second time she had travelled to Guangzhou. During her first trip she had been introduced to Dor, whom she believed to be in the clothing business in Guangzhou. She believed that he would invite her to join his business. On the present trip, she believed she would be given clothes, so she had waited for Dor in Guangzhou for a few days. On 4 January 2014, Dor appeared at her hotel and gave her what he said were USB devices to deliver to Thailand. On the morning of 5 January 2014, she arrived in Hong Kong with the USB devices. She denied knowledge of the presence of the dangerous drugs, claiming she had been deceived.
6. In pleading guilty to the count of unlawfully trafficking in dangerous drugs, the applicant accepted that she knew she was in possession of dangerous drugs when she entered Hong Kong and that she was trying to leave Hong Kong.
Reasons for sentence
7. In sentencing the applicant, the judge acknowledged that she was a married woman of 32 years of age and that she had “a clear criminal record” in Hong Kong. Moreover, he said that he accepted that the applicant had been, “duped into committing the offence with the promise, so you believed, of being involved in a business venture, that is selling clothes.”
8. The judge said that he sentenced the applicant on the “old scale” for sentencing, for which a starting point of over 18 years’ imprisonment was provided for unlawfully trafficking in quantities in excess of 600 grammes of methamphetamine hydrochloride. In that context, he noted that the applicant had trafficked unlawfully in approximately one and a half kilograms of methamphetamine hydrochloride.
9. The judge stipulated a starting point for sentence of 21 years’ imprisonment. For the international element involved in the commission of the offence, the judge enhanced that starting point taken for sentence by 2 years’ imprisonment. Affording the applicant a discount of one-third for her plea of guilty from the resulting total sentence of 23 years’ imprisonment, the judge sentenced the applicant to 15 years and 4 months’ imprisonment.
Application out of time
10. In her handwritten submissions, dated 13 May 2015, the applicant sought to explain the fact that her application for leave to appeal against sentence was made out of time on the basis that she had been shocked by her sentence, but had since recovered her mental equilibrium.
Grounds of appeal against sentence
11. The applicant said that she asked for a reduction of her sentence because she was a single mother taking care of her family and that she did not know anything about the drugs. In handwritten submissions, dated 21 May 2015, the applicant asked the court to take into account that the sentence imposed upon her would result in her being imprisoned for more than 10 years, even after taking into account a discount for her good behaviour. Finally, in a letter to the court dated 18 October 2015, the applicant asserted that the judge had mistakenly used the guideline for sentencing in respect of large quantities of heroin and cocaine, not ice, stipulated in the judgment of this Court in HKSAR v. Abdallah [1]. Also, she referred the Court to its judgments in HKSAR v Obi Martina Nzubechukwu [2]and HKSAR v Chan Po Wah [3] in which applications for leave to appeal against sentences imposed for trafficking unlawfully in large quantities of methamphetamine hydrochloride had been allowed. Further, she drew the attention of the Court to the reasons for sentence of Deputy High Court Judge A Pang, as Pang J was then, in HKSAR v Sae Heng Niramon [4].
12. Today, she asked for mercy. She said that she had a 15-year-old daughter with whom she had no contact. There was no one to take care of her daughter. We suggested that she contact the Thai Consulate for assistance in that regard.
The respondents’ submissions
13. In her helpful written submissions for the respondent, Ms Winnie Lam, submitted that the applicant had failed to provide any substantial grounds to persuade this Court to grant leave to appeal out of time by more than one month.
14. Ms Lam submitted that it was clear that, in stating that he sentenced the applicant on the “old scale” the judge sentenced the applicant on the guidelines articulated in the judgment of this Court in the Attorney-General v Ching Kwok Hung [5]. He was correct to do so. The applicant had committed the offence in January 2014, so that the new guidelines for trafficking unlawfully in ‘ice’ articulated in the judgment of this Court in HKSAR v Tam Yi Chun [6], in which judgment was handed down on 9 June 2014, were not applicable. The sentence imposed on the applicant was not manifestly excessive and/or wrong in principle.
A consideration of the submissions
15. We are satisfied that it is clear that, in referring to sentencing of the applicant on the “old scale”, the judge was referring to the guidelines articulated in the judgment of this Court in the Attorney General v Ching Kwok Hung. Those guidelines were the apposite guidelines for sentencing this applicant. They provide for a sentence of “18 years and upwards” to be imposed after trial on a defendant convicted of unlawfully trafficking in over 600 grammes of methamphetamine hydrochloride. In the judgment of this Court, Silke, VP said:[7]
“ By upwards we mean, beyond any cut-off sentence, but bearing in mind the dangers of a mathematical progression causing injustice. In coming to this tariff we have in mind the maximum penalty is life imprisonment.”
16. There is no basis whatsoever for the submission made by the applicant that in sentencing the judge had regard to the guidelines articulated in the judgment of this Court in HKSAR v Abdallah.[8]
17. The judgments of this Court to which the applicant has drawn our attention are of no assistance to her. In HKSAR v Chan Po Wah, this Court allowed applications for leave to appeal against sentences of 16 years and 8 months’ imprisonment imposed on two applicants who had been convicted, having pleaded guilty, to unlawfully trafficking in 1,500 and 1,520 grammes of methamphetamine hydrochloride respectively. They had been arrested at Hong Kong International Airport as they were checking in for a flight to Sydney, Australia. The judge had taken a starting point for sentence of 23 years’ imprisonment, which he had enhanced by 2 years’ imprisonment for the international element. For their pleas of guilty, he had afforded the applicants a discount of one-third from the resulting total of 25 years’ imprisonment. In allowing the applications, this Court determined that the appropriate starting point to be taken for sentence was 21 years’ imprisonment, which was to be enhanced by 2 years’ imprisonment to reflect the aggravating factor of the international element. Accordingly, the original sentences were quashed and sentences of 15 years and 4 months’ imprisonment imposed on the applicants.
18. In HKSAR v Obi, this Court allowed an application for leave to appeal against the sentence of 17 years and 4 months’ imprisonment imposed on the applicant following his conviction of unlawfully trafficking in 2.91 kg of methamphetamine hydrochloride found concealed in his luggage on his arrival from Nigeria. The judge had stipulated a starting point to be taken for sentence of 24 years’ imprisonment, which he enhanced by 2 years’ imprisonment to reflect the international element. This Court determined that the appropriate overall starting point for sentence, including an enhancement to reflect the international element, was 24 years’ imprisonment. Accordingly, having quashed the sentence imposed on the applicant, this Court substituted a sentence of 16 years’ imprisonment.
19. We are satisfied that, having regard to all the circumstances, the judge was correct in stipulating a starting point for sentence of 21 years’ imprisonment, and enhancing it by 2 years’ imprisonment to reflect the aggravating factor in the commission of the offence of the international element in the unlawful trafficking.
Conclusion
20. The applicant has advanced no satisfactory explanation for making her application for leave to appeal against sentence out of time. Further, notwithstanding this Court’s sympathy for her personal circumstances, being a mother separated from her children who live in Thailand, we are satisfied there is no merit whatsoever in her grounds of appeal. Accordingly, the application for leave to appeal against sentence out of time is refused.
(Michael Lunn)
VICE-PRESIDENT |
(ANDREW MACRAE)
JUSTICE OF APPEAL |
Ms. Lam Tak-wing, Winnie, SADPP(Ag) of the Department of Justice, for the respondent
Applicant appeared in person
[1] HKSAR v. Abdallah [2009] 2 HKLRD 437.
[2] HKSAR v Obi Martina Nzubechukwu [2013] 4 HKLRD 9.
[3] HKSAR v Chan Po Wah (CACC 179/2012; unreported, 26 March 2013).
[4] HKSAR v Sae Heng Niramon (HCCC 124/2012, 8 June 2012).
In sentencing the applicant to 16 years’ imprisonment for unlawful trafficking in 2.19 kg of methamphetamine hydrochloride, the Deputy High Court Judge took a starting point of 22 years’ imprisonment, which she enhanced by 2 years’ imprisonment to reflect the international element in the commission of the offence, namely importation of the dangerous drugs into Hong Kong from South Africa en route to Cambodia.
[5] Attorney-General v Ching Kwok Hung [1991] 2 HKLRD 125.
[6] HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.
[7] Attorney-General v Ching Kwok Hung, page 130 G-H.
[8] HKSAR v Abdallah [2009] 2 HKLRD 437.
|