HKSAR v. SOMPHAKSORN LAMYAI AND ANOTHER

CACC 88/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 88 OF 2008

(ON APPEAL FROM HCCC NO. 205 OF 2007)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.  The applicants in this case are Thai nationals.  Each was in her late 30s at the time of the offence.  They were recruited in Thailand to carry heroin from India into Hong Kong with the Mainland as their intended destination.

2.  They arrived in Hong Kong, at the International Airport, on the same flight and because of suspicions aroused they were searched and each was found to have a packet with heroin inside, protruding from the vagina.  They were taken to Queen Elizabeth Hospital for examination and in due course the first applicant (D1) discharged a total of 14 packets of heroin and together with the packet found on the applicant’s person at the airport, these contained 259.03 grammes of a mixture containing 184.05 grammes of heroin hydrochloride.

3.  The second applicant (D2) discharged 50 packets containing heroin and those packets plus the one seen on her person at the airport, contained 543.22 grammes of a mixture containing 365.54 grammes of heroin hydrochloride.

4.  There were two charges.  The first charge was directed against the first applicant for unlawfully trafficking in 184.05 grammes of heroin; and the second charge was directed at the second applicant for unlawfully trafficking in 365.54 grammes of heroin.

5.  Each applicant pleaded guilty before a magistrate to the charge against her.  They were committed to the Court of First Instance for sentence.

6.  On 2 November 2007, Deputy Judge Line sentenced D1 to a term of 6 years 8 months’ imprisonment and D2 to a term of seven and a half years’ imprisonment. 

7.  The applicants now seek leave out of time to appeal against their sentences.

8.  No valid reason is provided by either applicant for being so substantially out of time and, for that reason alone, the applications for leave to appeal out of time against sentence merit dismissal. 

9.  But we would say that, in any event, the sentences were, on any view, unduly light. 

10.  Without regard, for the moment, to such aggravating or mitigating features as might attend the particular cases and the particular individuals, the appropriate starting point that would be dictated by the well-known guidelines in R v Lau Tak Ming and Another [1990] 2 HKLR 370 at 387, is, in the case of D1, in the region of 11 years with a resulting sentence in the region of 7 years 4 months’ imprisonment; whereas the judge took a starting point of 10 years’ imprisonment and, giving the normal discount for a plea of guilty, imposed a sentence of 6 years 8 months’ imprisonment.  In the case of D2 an appropriate starting point, in line with the guidelines, would be one in the region of 14 years’ imprisonment, with a resulting sentence of 9 years 4 months’ imprisonment; whereas the judge took a starting point of 12 years’ imprisonment and reduced that to take into account the plea of guilty as well as other factors to which we shall shortly turn, to a sentence of seven and a half years’ imprisonment.

11.  A clear aggravating feature in each case was the international element in the drug trafficking so that, on the analysis thus far, the sentences ought to have been higher still than those we have indicated would flow from a strict application of Lau Tak Ming.

12.  The judge quite rightly remarked that Lau Tak Ming provides guidelines and not a straitjacket and we accept that it would be an abnegation of a judge’s duty not to give effect to such individual mitigating circumstances as are properly put forward.

13.  Yet in the application of that principle and without derogating from it, judges are required to recognize the rationale behind the strict sentencing policy for drug trafficking, namely, the evil itself that is constituted by the trade; and to be alert to the readiness of those who are in charge of this trade to exploit and abuse any perceived door to leniency.

14.  No doubt judges sometimes feel, as in a case such as this when uneducated people are exploited by those higher up in the chain, that the consequences may seem harsh.  Yet there can be very few who are not aware of the high stakes they are running if they agree to traffic in dangerous drugs.

15.  The mitigation advanced in the case of both applicants concentrated on their unfortunate personal circumstances, particularly those of D2 whose husband had for long been paralysed as a result of an attack upon him, facts supported by reliable medical reports, leading to dire financial straits.  In the case of D1 there was again put forward difficult family circumstances leading to a need for money.

16.  These sentencing exercises are difficult, because on the one hand one ought to be permitted, indeed moved, to treat someone in this category differently from a courier who is not pressed by such straitened circumstances.  As against that, however, no sooner has one embarked upon such a sentencing policy in this particular area of crime than the sharks who prey on the less fortunate will target them to carry out their work.

17.  The courts have time and again steeled themselves in drug trafficking cases against mitigation based on financial need, not only because it opens those in financial need to particular pressure by drug dealers, but also because most people in financial need resist that temptation and must by stern sentencing policy be discouraged from succumbing to it.

18.  So when the judge in this case took a starting point of ten years’ imprisonment in the case of D1 saying that that acknowledged the mitigation he had heard and balanced it against “the aggravation that exists in each of your cases of importing the drugs”, we are bound to say that in our opinion he took an unduly lenient view.

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 minimizing 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 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 and Another, 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.

27.  For these reasons, we take the view that the sentences imposed upon these applicants were unduly lenient.

28.  In the result, the applications for leave to appeal out of time against sentence are dismissed.