HKSAR v. HONG CHANG CHI

CACC 187/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 187 OF 2001

(ON APPEAL FROM HCCC 41 OF 2001)

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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):

Introduction

1. On 8 May 2001, the Applicant, a taxi driver from Taiwan aged 37, confirmed the plea of guilty he had entered in the Magistrates' Court to trafficking in a mixture containing just over 3 kilogrammes of cocaine hydrochloride, when he appeared in the Court of First Instance before Deputy Judge Toh. The Applicant was sentenced to seventeen years' imprisonment against which he now seeks leave to appeal.

The facts

2. The facts were straightforward. The Applicant was stopped at the Luggage Inspection Counter at Chek Lap Kok Airport on 29 September 2000 by a singularly alert customs officer, Lai Yat-kin. The Applicant was in due course searched and the drugs were found strapped to his body. Eight packets of cocaine were found in a cloth band around the Applicant's waist and a further twenty-three packets were discovered in pockets set into the boxer shorts he was wearing under a pair of bicycle-pants. The street value of the cocaine was estimated to have been in excess of $3.7 million.

3. When interviewed, the Applicant, who speaks Mandarin, said that he had been on a thirteen-day holiday on his own in Peru. He claimed that on the second day he was there, he was robbed by two men who had forced him to carry a large quantity of dangerous drugs to Hong Kong before they would be prepared to return the US$6,000 they had taken from him. He had travelled from Lima in Peru to Sao Paulo, Brazil. He then flew to Tokyo before taking the flight which had brought him to Hong Kong.

Applicant's criticism of judge's starting point

4. The complaint made by the Applicant in his home-made ground of appeal, at a time when he was not legally represented, was that the sentence he had received was excessive because the judge had sentenced him:

".... in the light of the reference made to 10 similar cases submitted by the counsel for the prosecution, instead of considering the point that (he) committed the present offence under threat which should be a strong mitigating factor (and) merits the court's consideration for a large-scale further reduction on the sentence."

5. The Applicant criticised the starting point of twenty-seven years which was adopted by the judge and he went on to suggest that if the judge had properly taken into account his personal circumstances, the judge would have selected a lower starting point of about twenty to twenty-four years. At that stage, we had not been supplied with a transcript of the mitigation. We considered that this was necessary in order to assess the merits of the application properly. On the same occasion, we granted the Applicant legal aid so that the starting point, coupled with the discount which the Applicant was given because he was said to be a "foreigner", could be addressed. Thereafter, Mr Christopher Coghlan, who did not appear in the court below, was instructed on behalf of the Applicant.

Mitigation and sentencing remarks

6. It now appears from the transcript of the mitigation that the judge was referred to a considerable number of cases for the purpose of giving her assistance in the sentencing process.

7. The judge's sentencing remarks appear to indicate that the Applicant's explanation for committing the offence, which he had given after his arrest, had been rejected as carrying no weight. This is hardly surprising as we observe that the mitigation given in the court below provided a somewhat different account to the way the Applicant became involved with drug dealers in Peru. Both stories had a common link in that the Applicant claimed to have been acting in fear arising from the treatment he received at the hands of Peruvian cocaine traffickers.

8. The judge observed, regarding the Applicant's general background, that he was a resident of Taiwan, where his wife and children also lived, and that this was the Applicant's first offence. The judge concluded that a deterrent sentence was called for in order, as she stated:

".... to stop foreigners from being tempted by greed to help these drug cartels to import drugs into Hong Kong."

9. We do not consider that the judge would have expressed herself in this way unless she believed that the Applicant had himself been driven by greed rather than fear to commit this crime. We feel bound to say that the reasons given by the Applicant during his interview for committing this crime could hardly have affected the sentence for an offence as grave as this, even if they had contained an element of truth. We note that counsel, when mitigating in the court below, attempted to persuade the judge to accept a more favourable, and in our view wholly unrealistic, version of events to the account given by the Applicant following his arrest. On either version, however, it is apparent that the Applicant agreed to carry this large quantity of cocaine from Peru for distribution in Hong Kong.

10. Having adopted the starting point of twenty-seven years' imprisonment, the judge gave a full reduction of one-third for the Applicant's plea of guilty. She then went on to discount the sentence by a further year in order to reflect the fact that it was the Applicant's first prison sentence and that he was a "foreigner". We shall have more to say about the Applicant's overseas status, but in regard to the reduction of sentence for the clear record it was claimed the Applicant had, we need only say what has been repeated so often, that in cases involving large quantities of drugs very little credit, if any, can be given for good character.

The application following legal aid - overseas status as mitigation

11. In the light of a number of authorities to which we shall shortly turn, Mr Coghlan realistically accepted that he had no arguable grounds of appeal against the sentence imposed. With the additional benefit of the transcript, we have concluded that this concession was properly made.

12. Nevertheless, we called upon Mr Coghlan's assistance in regard to the specific discount given to the Applicant in relation to his status as a resident of Taiwan. Mr Coghlan, in the course of his highly skilled arguments, submitted that the discount had been a proper one which had been given support in HKSAR v Rohrer [2001] 3 HKC 371, [2001] 3 HKLRD 175, which was decided after sentence in the present case was imposed. Whilst accepting that the Applicant is not, as the judge had stated, a "foreigner" in the generally recognized sense, because he is an ethnic Chinese who had lived in Taiwan, Mr Coghlan contended that regard should be had to the disadvantages such a prisoner would suffer in a Hong Kong prison when incarcerated so far from his home.

13. The issue, related to whether someone who commits a crime in Hong Kong should be entitled to a specific discount on account of his residence overseas and outside our jurisdiction, has become a somewhat vexed question in recent months arising from the decision of this court, differently constituted, in Rohrer. There, the appellant, who was a Swiss national, was given a specific discount of three months, to take this factor into account. In the course of giving judgment, Keith JA said:

"When sentencing the Applicant, the judge said:

'A foreigner committing crimes in Hong Kong [should] not expect leniency because of the language problem and their hardship, if any, of being detained in a foreign jail. Hardship, if any, is self-induced and you do not deserve any sympathy.'

There is a divergence of opinion as to whether that view is correct. Unfortunately, the Court of Appeal has not spoken with one voice over the years. Their different pronouncements on the topic have been gathered together in Cross & Cheung, Sentencing in Hong Kong, 3rd ed., pp. 302-303".

14. We have to say, with respect, that this does not do justice to the careful text in Cross & Cheung which makes reference, at the pages to which Keith JA had referred, to a number of decisions of this court which were prior to 1994, and to the judgment in 1994, in particular, in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69; [1994] 1 HKC 342. Until 1994, it is true that the Court of Appeal had spoken with more than one voice on the "foreign" element in sentencing. With the decision in Pedro Nel Rojas, this issue, until Rohrer, had seemed to have been put to rest. While the overseas status of a defendant was a circumstance to be taken into consideration, it could not amount to mitigation to any substantial degree and should not, on that account, be given a specific discount. It is worthwhile repeating the relevant text in that case, where Silke VP (at [1994] 1 HKC 346-347) said:

"A further factor which a trial court is entitled to take into consideration also exists here in that the respondent will be isolated while in prison custody. He speaks no English nor any of the Chinese dialects and that would undoubtedly bear hard upon him. In R v Shipra [1988] 2 HKLR 493, the headnote reads:

'Where a person comes to Hong Kong in order to commit a crime, the fact that a term of imprisonment might bear more harshly on that person, compared with a local person, was not a material factor to be borne in mind by the courts in passing sentence.'

Reference was made to that headnote in R v Okoye Venatius, (Crim App 405/90, unreported), where it was said at p 3:

'It was also suggested that because the applicant is a foreigner some discount should be given because he will not be able to receive visits from friends or relatives while he is in custody in Hong Kong. However, we have now been referred to R v Shipra [1998] 2 HKLR 493, which says that is not to be considered as a factor in mitigation and that ground has been abandoned.'

In the light of passages which are contained in R v Shipra, the headnote may be considered as misleading, for the court in R v Shipra stated it preferred the approach which had been taken in R v Ohmert Gary La Verne, (Crim App 213/85, unreported) to that which was said by the court in R v Kumar, (Crim App 179/80, unreported). In Ohmert Gary La Verne it was stated that:

'While it is quite right to say that anybody caught in somebody else's country and not speaking the local language will find prison a more disagreeable experience than would otherwise be the case that in general is not a circumstance which the court will take into account in mitigation to any substantial degree.' (Emphasis added).

In this case, the judge allowed a specific discount of one year for what we might term generally 'the foreignness' of the respondent. We do not consider that a specific discount should be given for this aspect of mitigation but we do endorse the course adopted in R v Shipra, which was commended to judges when faced with problems of this kind in the future - that while it is a factor to be taken into consideration, it is not one which would affect sentence to any substantial degree. This is something to be considered in determining the totality of the sentence."

15. We observe that the judgment in Rohrer makes no direct reference to Pedro Nel Rojas. It is also apparent that the decision in Rohrer to give a specific discount because of the hardships a foreigner might face in prison was inconsistent with what this court had said in Pedro Nel Rojas. If the court in Rohrer had considered Pedro Nel Rojas, which concerned a prisoner who came from Brazil to Hong Kong carrying a large quantity of cocaine destined for Japan, it is difficult to see how it could have come to the conclusion it reached, by providing a specific and not insubstantial discount of three months, on a three-year sentence which had already been discounted by a third for the pleas, to take into account the foreign status of the appellant.

16. It is to be noted that the court in Rohrer was concerned with an overseas offender who not only entered Hong Kong by means of a false travel document but had only come to Hong Kong for criminal purposes, albeit he was claiming to have been "cynically exploited" by others. We consider that the decision to give a specific discount for the "foreigner" element in Rohrer was contrary to well-established practice and, as such, was given per incuriam.

17. Returning to the present case, we consider that this Applicant was deserving of no discount to take into account that he came from Taiwan. The judge's decision to give the Applicant such a discount, even before the decision in Rohrer, was in error. In saying this, we are aware also of the recent decision by this court, on 5 November 2001, in the consolidated Applications for Review, CAAR 13 and 14/2001 (unreported) where Leong CJHC, having reviewed a number of authorities, said:

"The position is therefore quite clear and that is, the 'foreignness' of a defendant in the sense that he being foreign to the environments in a Hong Kong prison and likely to experience cultural and social difference and difficulty in communication, is only an aspect of the overall circumstances to be considered when a court determines the appropriate sentence to be imposed on him and it is a factor for which, depending on the circumstances of the case, little or no weight at all should be given."

18. In those applications for review, a total of three respondents, who all came from the Mainland, had their sentences increased to negate the discounts given to them by reason of the fact that they came from the Mainland.

19. In the course of argument on 6 November 2001, we thought it prudent to make enquiries about the provisions for the transfer of sentenced prisoners to their homeland. It appears from the research, helpfully carried out by Miss Mary Sin on behalf of the Respondent, that bilateral agreements constituting "arrangements for the transfer of sentenced persons" within the meaning of section 2 of the Transfer of Sentenced Persons Ordinance, Cap. 513, are presently in force between Hong Kong and the United Kingdom, the United States of America, Thailand and Sri Lanka. Specifically, with regard to the Applicant presently before us, Cap. 513 does not, by virtue of section 2, which defines "arrangements for the transfer of sentenced persons", permit the transfer of such persons to the People's Republic of China or any part thereof.

20. Section 3 of the Interpretation and General Clauses Ordinance, Cap. 1, defines "People's Republic of China" as including "Taiwan, the Hong Kong Special Administrative Region and Macau". It is apparent, therefore, that the Applicant, as matters stand, will not become eligible for transfer to Taiwan during any part of his sentence. Having regard to all these considerations, where an offender has come from Taiwan, he is in any event to be treated on exactly the same basis as someone who is from other parts of the Mainland.

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.

The starting point

23. Turning next to the starting point which the judge adopted, the guidelines for heroin trafficking in R v Lau Tak-ming & Ors [1990] 2 HKLR 370 were held in Attorney General v Pedro Nel Rojas (above) to apply also to the sentencing of cocaine trafficking.

24. This court in HKSAR v Leang Sze-keong CACC 566/1997 (unreported) 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 grammes 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 twenty-five years' imprisonment which this court upheld.

25. Similarly, in R v Ho Chi-ming CACC 447/1994 (unreported), the applicant in that case, aged twenty-three, was found with a mixture containing just over 1.2 kilogrammes 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 twenty-five 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. In saying this, we have borne in mind a number of cases which the Applicant has brought to our attention from newspaper reports he has copied. These reveal offences which bear similarity to the Applicant's case. It is true that a number of other offenders have been treated more leniently than the Applicant for similar quantities of drugs. However, we do not know the full circumstances of those cases. Each case has to be looked at individually. Furthermore, bearing in mind that the judge gave a discount of a year for mitigation which carried no weight at all, both as to the Applicant's distance from his home and family and as to the previous clear record he claimed to have had, the sentence is not one with which we propose to interfere.

Conclusion

27. Having regard to the arguments which have been advanced, we shall grant leave. However, treating the hearing as the appeal, we dismiss the appeal. In so doing, we would like to express our gratitude for the immense assistance rendered to this court by both counsel.