HKSAR v. MUZLIPAH

CACC 343/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 343 OF 2014

(ON APPEAL FROM HCCC 437/2013)

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REASONS FOR JUDGMENT
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Hon D Pang J (giving the reasons for judgment of the court):

1. The applicant pleaded guilty before Deputy Judge Tallentire in the Court of First Instance to one count of trafficking in dangerous drugs, namely 3,365.06 grammes of a mixture containing 1,294.6 grammes of heroin hydrochloride and 12.74 grammes of 6-monoacetylmorphine hydrochloride, and was sentenced to 16 years and 8 months’ imprisonment. She gave notice to apply for leave to appeal against sentence. We dismissed that application. These are our reasons.

The facts

2. The facts of the case were simple.  Just after 11 pm on 15 June 2013, a Customs Officer intercepted the applicant upon her arrival at the airport on a flight from Hanoi.  The dangerous drugs forming the subject of the charge were found concealed in the hems of four dresses, the lining of three book covers, three handbags, one paper box, one wooden box and one metal pot inside the applicant’s suitcase.  Under caution, the applicant stated that she was taking the suitcase to China for a reward of US$200.  In a subsequent video recorded interview, she explained that (a) she had met a woman called Nana six months before the incident; (b) it was Nana who asked her to go and collect the suitcase and its contents from Hanoi; (c) she was to deliver the suitcase and its contents to an unknown man in Guangzhou; and (d) she would receive US$800 upon successful completion of her task.  Counsel mitigating on the applicant’s behalf indicated that “by the time she arrived in Hong Kong she was aware that she was in possession of the dangerous drugs”.[1]

Background and Mitigation

3. The following passages appear in the judge’s Reasons for Sentence:

“You are a person of clear record in Hong Kong. The antecedent statement, which is agreed, shows you to be an Indonesian female, now aged 39, educated to secondary level and a part-time bank employee earning the equivalent of 1,500 to 2,500 Hong Kong dollars per month.

You are divorced with one daughter. You claim that you are not an abuser of drugs.

On your behalf, Mr Donald has entered mitigation which you have heard today. He explained how it was you came to be involved in this offence. I do not intend to repeat that, save to say that it seems you were to receive in total of approximately US$1,000 for the delivery of these drugs; that there was an element, certainly, of being duped into becoming involved; that you are extremely remorseful; and also you have tried your very best to help the authorities to trace, ‘the bigger wheels’ within this organisation. You have done what you can providing the full name, address and photograph of this Nana.[2]

I have also taken into account your letter, and I do express some sorrow about the plight of your daughter.  But, of course, this is a very serious offence.  The transportation and dealing in drugs is a very very serious matter and one for which severe penalties are laid down by the Court of Appeal.”

The Sentence

4. The judge concluded by saying:

“I have taken all that has been said on your behalf into account. I note your clear record. I note that you have attempted to assist the authorities, and I have considered the contents of your letter.

The following sentence will therefore be imposed.

Given the amount of drugs involved and the nature, I take a starting point of 23 years’ imprisonment. Because of the international aspect of bringing them into Hong Kong, there will be an enhancement of 2 years taking it to 25 years, but there will be a one-third discount for your plea of guilty.

Therefore, you will go to prison for a period of 200 months, which is 16 years and 8 months.”

Grounds of Appeal

5. The applicant, who was refused legal aid and the Bar Free Legal Service, prosecuted this application in person.  In a letter attached to her Notice of Application for leave to appeal (Form XI) dated 8 October 2014, she stated that she had neither any parent nor husband, and her 10‑year old daughter was left in the care of her aged (52 years) and sickly (unspecified) sister.  She said she was worried that if anything should happen to her sister, her daughter would be left on her own.  In a second, undated, letter which this Court received on 10 December 2014, the applicant complained of a possible case of disparity in sentence in that another drug trafficker, Chen Xuehui, was said to have been sentenced to the same term of imprisonment (16 years and 8 months) regardless of her not guilty plea.  In a third letter dated 13 January 2015, without providing any further detail, the applicant reiterated her concern about her daughter.  Again referring to the case of Chen Xuehui, the applicant questioned if she had not been unfairly treated on a racial basis.  Almost by way of passing, she stated that she never knew there were drugs inside the suitcase.  In court, she implored us to exercise mercy and reduce her sentence on humanitarian grounds.

Discussion

6. Upon clarification, the applicant accepted that by pleading guilty, she in fact admitted having knowledge about the drugs at the time of the offence.

7. We are satisfied that the judge had been fully apprised of the situation concerning the applicant’s daughter and was right not to allow any reduction in sentence on its account.  The courts have always been of the view that “a man must appreciate before he commits a crime that his family will suffer if he is caught and convicted”: per Cons VP in R v Shipra [1985] 2 HKLR 493 at 494.  It is also well established that family circumstances play virtually no part in the mitigation of drug offences.  The dreadful nature of the illicit drug business and the great evil that the suppliers of dangerous drugs inflict on others compel this policy position: R v Lau Tak Ming [1990] 2 HKLR 370 at 386F-G. 

8. We have had the benefit of the transcripts of the sentence in HKSAR v Chen Xuehui HCCC 19/2012, dated 12 September 2012.  It is correct that this case and the Chen case bear much resemblance.  Having arrived on a flight from Hanoi, Chen was found to be in possession of a mixture containing 1,080 grammes of heroin hydrochloride and 299 grammes of 6-monoacetylmorphine in a suitcase.  Indeed, the judge in the Chen case adopted the same starting point of 23 years, enhanced it by two years to reflect the international element, and arrived at the final starting point of 25 years’ imprisonment.  The only ostensible difference between the two cases is that Chen contested her charge whilst the applicant pleaded guilty.  Understandably, it raises the question why they were met with the same sentence.

9. The answer to that is that Chen was, at the time of her offence, suffering from an episode of a pre-existing and serious mental illness.  That it was so was supported by strong medical evidence. This, the judge found, had significantly reduced Chen’s culpability. Meticulously, the judge had set out his reasoning in the following passages: 

“The only mitigation of substance available to the defendant is her mental illness. The defendant suffers from bipolar affective disorder, a serious mental illness. She, I accept, has suffered from it for many years and indeed, that illness and its effects form part of her defence as to her knowledge of dangerous drugs being contained in the suitcase.

Dr W K Choi, who is a very experienced psychiatrist, gave evidence on the defendant’s behalf during her trial. He described the symptoms of the disorder as, inter alia, provoking poor judgment and decision-making on the part of the person afflicted and that that person may be more easily led and be more gullible than other members of the community, and be subject to an enhancement of risk-taking urges and be prone to suggestion.

That is a dangerous combination of symptoms so far as the commission of criminal offences is concerned. Dr Choi, in his report dated 6 September 2012, says this concerning the characteristics of bipolar affective disorder:

‘...omission of drugs can increase the risk of causing relapse, which may significantly affect the process of decision-making. Because of their impulsivity, grandiosity, shortened attention span and distractibility, manic patients have a tendency to jump into conclusion without carefully processing the information available to them. This would also make them more susceptible to suggestions made by others.’

He had examined the defendant at Siu Lam Psychiatric Centre after she suffered an episode of the illness following her arrest for the present offence and had then assessed her to be suffering from a severe form of the illness in its manic phase. He thought she may well have been undergoing a minor episode of the manic form of the illness at the time of and previous to the offence.

I have no doubt that the defendant was suffering, at least to some degree, from the earlier stages of a relapse at the time of the offence. I am sure the jury accepted that to be so. They obviously concluded that she nevertheless was aware that drugs were concealed in the suitcase which she brought into Hong Kong.

The person suffering from such an illness is entitled to have that fact taken into account as mitigation when being sentenced for a criminal offence committed by them. That is so when that illness may have provoked, at least in part, their commission of that offence (see, for example, HKSAR v Chiu Peng, Richard [2001] 1 HKC 401 and The Queen v Wright [2001] 3 NZLR 22 at 26).

……

A difficulty in sentencing a mentally ill defendant is that many such illnesses will change in their degree of severity over time so that, at the time of their examination, the symptoms of the defendant may have become more pronounced or may have lessened. Bipolar affective disorder is such an illness.

The defendant’s illness in this case when Dr Choi, who, as I say, is a very experienced consultant psychiatrist at Siu Lam Psychiatric Centre, examined her at a time less than three days after the commission of the offence, was described by him as being severe. At that time, she was in the high manic phase of the illness.

Dr Choi was shown the video recording of the defendant’s interview with Customs officers which took place two days earlier, that is on the day following her arrest. In his view, there were at that time symptoms displayed by the defendant which could have indicated she was suffering from a lower level of the manic phase as she attempted to progress through the ‘green’ Customs channel at the airport. That, in my view, is certainly demonstrated by her decision to approach the Customs Officer, PW1 in the trial, responsible for selecting arriving passengers for a luggage search.

Her behaviour at that time and subsequently during her video‑recorded interview and her display of more florid symptoms on 29 July confirm, in my opinion, her evidence that she had not taken medication for her illness for some months prior to the events leading up to her arrest on 26 July. There is no doubt that the jury accepted that the defendant did suffer from this illness and I have no doubt she was significantly affected by it in the days leading up to 26 July and on that date.

The weight of mitigation - and I mean by that the level of discount a defendant suffering from a mental illness receives in sentence - is extremely fact-sensitive. I have taken into account the serious nature of the offence she has committed and the community’s interest in having such offences punished. I take into account also the circumstances of the offence and the degree to which the defendant’s illness may have affected her culpability for her offence.

That requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence. I have set those symptoms out earlier and, in my view, they, in combination, significantly reduce the defendant’s responsibility for her offence in the circumstances of this case.

I propose to allow the defendant a one-third reduction of sentence.  That results in a sentence of 16 years 8 months’ imprisonment.” 

10. We are satisfied that there was no unjustified difference in treatment between Chen and the applicant.  The applicant’s sentence was perfectly consistent with the sentencing guidelines.  It was neither wrong in principle nor manifestly excessive. 

Disposal

11. For the above reasons, we dismissed the applicant’s application for leave to appeal against sentence.

[1]  Appeal Bundle, page 11P.

[2]  The applicant was convicted on 24 February 2014.  She was sentenced on 16 September 2014. The information provided by the applicant came to nothing after the seven-month adjournment.