HKSAR v. TOURAY EDRISA AND ANOTHER

CACC124/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 124 OF 2010

(ON APPEAL FROM DCCC 1195 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn J (giving the Reasons for the Judgment of the Court):

1.  At the hearing on 11 August 2011, we dismissed the 1^st applicant’s renewed application for leave to appeal against sentence, it having been refused by order of the single judge on 30 November 2010.  Similarly, we dismissed the 2^nd applicant’s application for leave to appeal against his conviction in respect of a single charge of unlawfully trafficking in a dangerous drug, but we allowed his application for leave to appeal in respect of the sentence imposed on that charge and a charge of possession of a dangerous drug.  We quashed those sentences and, in their place, imposed reduced sentences of imprisonment on the 2^nd applicant.  We said that we would give our reasons in due course.  That we do now.

THE CHARGES

2.  By Charge 2, the 1^st and 2^nd applicants were charged jointly with trafficking unlawfully in a dangerous drug, namely 30.20 kg of cannabis in a herbal form, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The offence was alleged to have been committed on 12 July 2009 in Room 1926 of BP International House, 8 Austin Road, Tsim Sha Tsui.  By Charge 3, the 2^nd applicant was charged with possession of a dangerous drug, namely 0.6 g of cannabis in herbal form, in the same premises on the same occasion.

THE TRIAL

3.  On arraignment the 1^st applicant pleaded guilty to Charge 2 and was sentenced to 4 years’ imprisonment and the 2^nd applicant pleaded guilty to Charge 3.  Following his conviction on 23 March 2010 after trial by HH Judge Mary Yuen on Charge 2, the 2^nd applicant was sentenced to 5 years and 6 months’ imprisonment on that charge and 2 months’ imprisonment on Charge 3.  The judge ordered that 1 month of the term of imprisonment imposed in respect of Charge 3 be served consecutively to the sentence imposed in respect of Charge 2.  Accordingly, the total sentence of imprisonment imposed on the 2^nd applicant was 5 years and 7 months.

THE PROSECUTION CASE

4.  The prosecution case at trial against the 2^nd applicant was that the 1^st and 2^nd applicants had come to collect the dangerous drugs, which were contained in two suitcases, from Room 1926 of BP International House, in which two co-accused at trial were present co-operating with Customs and Excise officers.  They had been arrested at Hong Kong International Airport on their arrival from Johannesburg in South Africa earlier in the day on 12 July 2009.  The authorities had discovered herbal cannabis contained in the suitcase each of them was carrying and had arranged for them to implement the arranged delivery of the two suitcases to others in Room 1926 of BP International House.  Customs officers hid in the bathroom of the room, whilst others kept watch outside.

5.  At trial the erstwhile 1^st defendant, Ms Karen Le Roux, testified as to the entry of the 1^st and 2^nd applicants into Room 1926, which she and the 2^nd defendant, Mortimer Van Der Westhuizen, occupied.  The1^st applicant asked for the 2^nd defendant by name.  He emerged from the bathroom.  Then the 1^st applicant asked them, “Did everything go well through Customs?”  She replied in the affirmative.  She replied in the negative to his question as to whether or not anyone had asked any questions.  The 2^nd defendant replied in the affirmative to the 1^st applicant’s question as to whether or not the suitcases which were in the room were the ones which he was collect.  Next, at the 2^nd defendant’s request that permission for the collection be confirmed with a man called ‘America’, who was in South Africa, the 1^st applicant used his mobile telephone to call a number provided by the 2^nd defendant, who in turn sought permission from the recipient of the call to hand over the suitcase.  Then, the 1^st applicant took one of the suitcases and told the 2^nd applicant, “You may take the suitcase”.  The 1^st applicant replied in the affirmative to the 2^nd applicant enquiry, “Is this it?”

6.  Ms Le Roux said that she gave the 1^st applicant a set of two keys to one of the suitcases.  The 2^nd defendant also handed over a set of keys, but she was not sure to which of the two applicants. Each of the applicants took hold of one of the suitcases.

7.  Customs officer Leung Tik Fai, CO 9953, saw the two applicants from his surveillance position outside the room as the door opened and the two applicants began to leave.  As he moved forward, the 2^nd applicant moved backwards, tripped and fell down.  He arrested the 2^nd applicant inside the room on the basis that he suspected he was connected with a dangerous drug case.  In reply to the words of caution, the 2^nd applicant merely said “Yes”.  A search of his person revealed a packet in the 2^nd applicant’s shirt pocket.  The contents of the packet having tested positively to a narcotic tester, Customs officer Leung repeated the words of caution to the 2^nd applicant and received the same response, namely an affirmative answer that he understood the words of caution but, in addition, that he had nothing to say.  In his resumed search of the 2^nd applicant, Customs officer Leung found a set of two keys in his trouser pocket.  In front of the 2^nd applicant he used the keys to successfully open a padlock on the blue suitcase.

THE 2^ND APPLICANT’S CASE

8.  The 2^nd applicant did not give or call evidence in the defence case.  In cross-examination, Customs officer Leung denied the suggestion that he had not used the keys to open the padlock to the blue suitcase in the presence of the 2^nd applicant.  However, he agreed that he had not opened up the blue suitcase to make visible its contents in front of the 2^nd applicant.  The officer agreed that he was present on the afternoon of the 13 July 2009 when an interview was conducted of the 2^nd applicant. He agreed that the 2^nd applicant had denied using the keys and said that he knew nothing about the drugs in the suitcase.  He accepted that the 2^nd applicant said that whilst he accepted responsibility for the cannabis found in his shirt pocket he knew nothing whatsoever about the drugs in the suitcase.

REASONS FOR VERDICT

9.  Having determined at the end of the prosecution case that there was a case to answer for the 2^nd applicant on Charge 2, and having received closing submissions from counsel, the judge convicted the 2^nd applicant on that charge.

10.  The judge found that the two suitcases, one orange and one blue, seized from the 1^st and 2^nd applicants in Room 1926 contained the herbal cannabis stipulated in the Particulars of Offence of Charge 2 and had been imported into Hong Kong by the 1^st and 2^nd defendants at trial. 

11.  Of events that had occurred in Room 1926, the judge determined that Ms Le Roux had given the keys to the blue suitcase to the 1^st applicant. She accepted that those keys had been found by Customs officer Leung in the trouser pocket of the 2^nd applicant.  She determined that the 1^st applicant had given those keys to the 2^nd applicant. Furthermore, the 2^nd applicant was in physical possession of the blue suitcase as he was about to leave the room and knowingly in possession of keys to the padlock of that suitcase.

12.  The judge identified the crucial issue as being: “whether D4 was a mere custodian of the suitcase with no knowledge of its content or whether D4 had full knowledge of the drugs within the suitcases, thus possessing the suitcase as well as the cannabis in it.”

Section 47(1) and (2) : presumptions

13.  The judge determined that, since physical possession of the blue suitcase and the keys to the padlock of that suitcase was proved, section 47(1) of the Dangerous Drugs Ordinance, Cap 134 was operative, namely that the 2^nd applicant was presumed to have knowledge of what was contained in the suitcase.  Further, that by operation of section 47(2) of the Ordinance it was presumed that the 2^nd applicant had “… knowledge of the nature of the drugs proven or presumed to be in his possession.”  However, the judge went on to note (paragraph 66) :

“if there was evidence within the case for the defendant to rely upon to raise the evidential issue that he had no knowledge of the cannabis kept within the suitcase, then the burden falls squarely back on the prosecution to prove beyond reasonable doubt that the defendant was in fact aware of the drugs he had in his possession.”

14.  The judge identified the 2^nd applicant’s denial of knowledge of the contents of the suitcase in his record of interview on 13 July 2009 as being evidence to which the 2^nd applicant could point as raising the evidential issue.  However, she noted that when cautioned in respect of the discovery of the packet of herbal cannabis in his shirt pocket, the applicant had said in answer to the question as to what it was, “I don’t know”.  (See paragraph 17 of the Admitted Facts.)  Of those answers, she determined that all that the 2^nd applicant was doing was (paragraph 72), “… no more than giving an exculpatory response when confronted with the possession of cannabis found in his shirt pocket and the bulk of cannabis found inside the suitcase.”  In the result, she concluded :

“I do not find D4 to have raised the evidential issue that he had no knowledge of the contents within the suitcase.”

15.  Notwithstanding that determination, the judge proceeded to consider whether or not the prosecution had proved (paragraph 74) :

“… on all the circumstantial evidence that D 4 must have been aware of the presence of the drugs inside the blue suitcase that he was carrying without aid of the statutory presumption.”

16.  The judge rejected the prosecution submission that she could rely on the fact of the finding of the small packet of cannabis in the 2^nd applicant’s shirt to draw the inference of the 2^nd applicant’s “knowledge of the cannabis found inside the suitcase.”

17.  Having noted that the 1^st applicant was the person most engaged in conversation with the 1^st and 2^nd defendants, the judge observed that nevertheless the 2^nd applicant was present during the conversation in which the 1^st applicant posed questions of the 1^st and 2^nd defendants as to whether there had been “any problems with Customs and if questions had been asked”.  Also, she noted that the 2^nd defendant had insisted on obtaining confirmation by telephone from ‘America’ before handing over the suitcases.  Of that exchange, the judge determined :

“D4 must have been aware of the fact that the suitcases he and D3 were to collect contained contrabands that were prohibited for importation by the Customs of Hong Kong.”

18.  Having stated that she took judicial notice of the fact that the quantity of herbal cannabis in each of the suitcases was of substantial value, the judge determined :

“It is an affront to common sense to suggest an uninvolved person could be entrusted with custody of the key giving full access to... herbal cannabis of a substantial value, unless D4 himself was a party to the collection team of the cannabis knowing full well the contents in the suitcase.”

The judge stated that she drew the irresistible inference that the 2^nd applicant was such a party.

19.  Although the judge noted that the 2^nd applicant was never in physical possession of the orange suitcase or its keys and stated that the statutory presumption did not arise, nevertheless the judge determined that the 2^nd applicant was a party to a “joint enterprise” to take delivery of both suitcases and their contents, of which the 2^nd applicant had the requisite knowledge.  Finally, the judge determined that the 2^nd applicant was in actual and legal possession of the blue suitcase and its contents and had joint custody and control, i.e. legal possession of the dangerous drugs in the orange suitcase.  In the result, she found that the 2^nd applicant was unlawfully trafficking in the herbal cannabis contained in both suitcases.

THE 2ND APPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION

20.  By ground 1, Mr Tolliday-Wright submitted that the judge erred in ruling that there was a case to answer for the 2^nd applicant on Charge 2.  That was the case because of her subsequent determination that it was impermissible to draw the inference that the 2^nd applicant knew of the nature of the contents of the suitcases from the evidence of the finding of a small packet of herbal cannabis in his shirt pocket.  In her ruling of a case to answer, the judge had said that it would be a matter on which she would receive submissions at the end of the day.

21.  By ground 2, it was submitted that there was an insufficient evidential basis upon which the judge could determine that the statutory presumptions in section 47(1) and (2) of the Dangerous Drugs Ordinance arose.  In the first place, the prosecution had stated at the commencement of the trial that they did not place reliance on the presumptions.  Further, the judge erred in law and fact in determining that on all the evidence the 2^nd applicant had not raised the evidential issue that he had no knowledge of the contents of the suitcases.  There was evidence from Customs officer Leung that the 2^nd applicant had denied knowledge of the dangerous drugs contained in the suitcases when a record of interview was conducted of him.

22.  By ground 3 it was contended that the judge had erred in determining that the 1^st applicant had introduced the 2^nd applicant to the 1^st and 2^nd defendants in Room 1926 of BP International House as “his brother from South Africa”.  In context, it was clear that in saying what he said the 1^st applicant was referring to the person called ‘America’, to whom he had spoken on the telephone at the request of the 2^nd defendant to obtain permission for the release of the suitcases to the applicants.

A CONSIDERATION OF THE SUBMISSIONS

As to grounds 1 and 2

23.  Section 47 of the Dangerous Drugs Ordinance provides :

“(1) Any person who is proved to have had in his physical possession-

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage… containing a dangerous drug,

shall until the contrary is proved, be presumed to have had such drug in his possession.

(2)     Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the country is proved, be presumed to have known the nature of such drug.”

24.  It is clear from the judgment of this court, affirmed by the Court of Final Appeal, in HKSAR v Hung Chan Wa & Another (2006) 9 HKCFAR 614 at 648, paragraphs 85 and 86, that the provisions are to be construed as creating an evidential onus only.

25.  There is no dispute that on the evening of 12 July 2009 as the 2^nd applicant left Room 1926 of BP International House he was in physical possession of the blue suitcase and a set of keys which fitted the padlock to the suitcase.  As the judge noted, the applicants were captured earlier on the CCTV recording of BP International House as they entered the hotel, proceeded to the lift lobby, entered and travelled up in the lift, exited the lift and made their way to Room 1926.  It was an admitted fact that the 1^st applicant had received information as to the room number and the telephone number, of the telephone provided by Customs to the 2^nd defendant, in a SMS from a man called Ernest who had a South African telephone number.  Throughout that journey, the 2^nd applicant followed the 1^st applicant. Whilst in the corridor of the floor on which Room 1926 was located the 1^st applicant made a telephone call which was answered by the 2^nd defendant.

26.  As the judge noted, Ms Le Roux said that the 1^st applicant did most of the talking inside the room, “while D4 (the 2^nd applicant) hardly spoke.”  However, albeit that the conversation in the room was brief, it involved enquiries by the 1^st applicant as to whether or not everything had gone well with Customs and if they had any questions.  Also, there was discussion on the telephone, in a call initiated by the 1^st applicant, to obtain permission to leave with the suitcases.  Keys to the suitcases were handed over.  When asked by the 1^st applicant to take a suitcase, the 2^nd applicant did so.  Shortly afterwards, having been prevented from leaving the room carrying the suitcase, keys to the blue suitcase were found on the 2^nd applicant.

27.  Although Mr Tolliday-Wright said that it was his memory, as counsel for the 2^nd applicant at trial, that at the commencement of the trial the prosecution had eschewed reliance on the presumptions provided for by section 47(1) and (2) of the Dangerous Drugs Ordinance, he was unable to identify when that was, so that the audio tape could be listened to and a transcript made.  Certainly, that contention sits ill with the manner in which the prosecution closed its case, namely inviting the court to find that an evidential presumption did arise in connection with the blue suitcase, albeit not in respect of the orange suitcase.

28.  Clearly, having regard to the evidence in the round, the presumptions provided for by section 47(1) and (2) arose, in particular the undisputed evidence that the 2^nd applicant was in physical possession of the blue suitcase and the keys that fitted its lock.

The evidential onus

29.  As noted earlier, the judge identified the 2^nd applicant’s denial of knowledge that drugs were contained in the blue suitcase, in a record of interview conducted of him on 13 July 2009, as being evidence to which regard was to be had in determining whether or not the 2^nd applicant had satisfied the evidential onus.  Although evidence had been led, through Customs officer Leung, that the record of interview was one hour and 22 minutes in length, the ambit of the evidence placed before the judge was narrow in the extreme.  The following exchange occurred in cross-examination by Mr Tolliday-Wright of Customs officer Leung in respect of the record of interview (transcript, page 84) :

“Q. And you were present when the defendant was asked about the keys that you found?

A. Yes.

Q. And it’s correct, if I could summarise, he said he knew nothing about the keys?

A. Yes.

Q. And he denied ever using them?

A. That’s right

Q. And he also said that while he was responsible for the cannabis found in his pocket, he admitted that he would accept that charge, and accept responsibility for that?

A. True.

Q. He said he knew nothing whatsoever about the drugs in the suitcase?

A. Correct.”

30.  A short while later the judge intervened, pointing out that the court had received no evidence of any admission by the 2^nd applicant. The judge accepted Mr Tolliday-Wright’s reply that what he wished to do was to adduce evidence that, when challenged with the discovery of the herbal cannabis in the suitcase, the 2^nd applicant had denied anything to do with those drugs.  She noted that he had elicited that evidence already. Mr Tolliday-Wright told the judge repeatedly that the evidence was led on the basis that it was the 2^nd applicant’s “reaction when the…allegations were put to him”.

31.  As noted earlier, the judge determined of the 2^nd applicant’s denials in the record of interview that they were no more than an exculpatory account.  In the result, she determined that the 2^nd applicant had not satisfied the evidential onus.

A wholly exculpatory out-of-court statement

32.  A wholly exculpatory out-of-court statement is inadmissible as to the facts stated therein.  However, it may be evidence of the reaction of a defendant when accused of the offence.  In the Attorney General v Li Siu Lam [1989] 2 HKLR 370 this court was seized of an appeal by way of Case Stated from the District Court in which issue was taken by the Attorney General in respect of the admission into evidence, contrary to the wishes of the prosecution, of three cautioned statements taken from the respondent, which were entirely self-serving.  The judge had permitted the evidence to be adduced in cross-examination of a police officer by counsel for the defendant.  In his judgment, Silke VP observed  (page 373H) :

“It is not, other than in very limited circumstances, open to an accused to introduce such a statement. These are first: where it is part of the res gestae ; and second: in order to rebut an allegation of recent invention.”

33.  Of the purpose of admitting such statements, Silke VP went on to say that :

“… it is and can only be to show the reaction of an accused to police enquiries: Storey (1968) 52 Cr App R 334… However, the authorities make it clear beyond peradventure that an entirely self-serving statement is not evidence of the facts it contained nor is it admissible to show consistency.”

34.  In R v Lambert [2002] 2 AC 545, by a majority, the House of Lords determined that the imposition of a persuasive burden on the defendant to prove absence of knowledge by way of a defence to a charge of being in possession of a dangerous drug with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act, 1971 could not be justified as being no more than necessary for the achievement of the legitimate objective, of grappling with the acute problem of dangerous drugs and the sophisticated techniques employed by those unlawfully trafficking, and that it should be treated as an evidential onus.  In addressing concerns that such an onus was illusory, Lord Steyn considered in particular the ability of an accused in a drugs case to manipulate the system by providing a mixed statement containing a self-serving explanation that he did not know what was in the package.  Of that, he said (page 573 B-E, paragraph 39) :

“The perceived difficulty is that the whole statement may be introduced as evidence and he may not testify. In the leading case of R v Duncan (1981) 73 Cr App R 359, 365 Lord Lane CJ observed :

‘Where appropriate, as it usually will be, the judge may, and should point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks on the election of the accused not to give evidence.’

This guidance has twice been approved by the House : R v Sharp (Colin) [1981] 1 WLR 7; R v Aziz [1996] AC 41.  Cumulatively, these considerations significantly reduce the difficulties of the prosecution in drugs cases.  Specifically, it should not be possible for an accused, in a case where his conduct calls for an explanation to advance a submission at the end of the prosecution case that the prosecution have not eliminated a possible innocent explanation.  Such submissions should generally in practice receive short shrift.”

35.  In our judgment there is no doubt that the judge was correct to rule that there was a case to answer for the 2^nd applicant on Charge 2. The judge’s reference to the consideration that might be given to the relevance or otherwise of the discovery of the package of cannabis in the 2^nd applicant pocket is nothing to the point. 

36.  In his judgment in Hung Chan Wa, Sir Anthony Mason NPJ approved specifically of those passages from the judgment of Lord Steyn (see page 647F-G, paragraph 83).  Similarly, he approved of Lord Steyn’s suggestion that the jury be invited to consider the commonsense point :

“… that it must be comparatively rare for a drug dealer to entrust a valuable parcel of drugs to an innocent.”

37.  As noted earlier, although the judge determined in terms that the 2^nd applicant had not satisfied the evidential onus arising in the operation of the presumptions, she did not proceed to find the 2^nd applicant guilty of Charge 2 there and then, rather she proceeded to a consideration in respect of his knowledge of the presence of the dangerous drugs in the blue suitcase on an analysis of “all the circumstantial evidence”.

38.  In determining to draw the irresistible inference that the 2^nd applicant was “fully aware of the contents within the suitcase and he was a party of this collection team with D3” the judge was entitled to have regard as significant the evidence to which she adverted.  Firstly, that the 2^nd applicant was present at the conversation within the room when issues were raised as to whether or not there had been any problems with the Customs at the airport and the telephone call which was made to ‘America’ to obtain his consent to the release of the suitcases to the applicants.  Secondly, that the 2^nd applicant had been entrusted not only with the blue suitcase but also the keys to the padlock on the suitcase, the contents of which suitcase were of substantial value. 

Conclusion

39.  In the result, we are satisfied that there was ample evidence upon which the judge was entitled to determine by operation of the presumptions and/or by consideration of all the circumstantial evidence that the 2^nd applicant unlawfully trafficked in the herbal cannabis in the blue suitcase.  In respect of the evidential onus arising by operation of the presumptions, the judge was entitled not to give any weight to the wholly exculpatory statements made by the 2^nd applicant in his record of interview. 

40.  The judge’s exercise of approaching the issue on a ‘belt and braces’ basis, namely by considering first of all the operation of the presumptions and then all the circumstantial evidence was entirely unnecessary.  In the event, it would have been much simpler to have adopted the advice of this court articulated in the judgment of Stuart-Moore VP in HKSAR v Chiu Wing Nam, Dick (unreported, CACC423/2003 at paragraph 12) to eschew the use of the presumptions.

41.  Having regard to the findings that the judge made in respect of her consideration of the circumstantial evidence in relation to the blue suitcase, the judge was entitled to come to the conclusion that he was a party to a joint enterprise to take delivery of both suitcases and that he knew that they contained dangerous drugs.

Ground 3

42.  The judge fell into error when she said that the 1^st applicant had introduced the 2^nd applicant to the 1^st and 2^nd defendants as “his brother from South Africa (paragraphs 49(o), 88, 92 and 101.) The 1^st applicant did not do so.  Rather, that was a reference to ‘America’ the person in South Africa to whom he had spoken on the telephone in order to obtain his permission for the 1^st defendant to release the suitcases to the applicants. It is to be noted that, having made that incorrect assertion yet again, the judge added:

“This statement, viewed alone, could have a neutral connotation.”

Certainly, the judge did not articulate any inference adverse to the 2^nd applicant that she drew from her incorrect recollection of the evidence.

Conclusion

43.  Whilst we are satisfied, as we have stated, that the judge was in error we are equally satisfied that there was no material irregularity.  There being no merit in any of the proposed grounds of appeal against conviction, the application for leave to appeal against conviction by the 2^nd applicant was dismissed.

THE 1^ST APPLICANT’S GROUNDS OF APPEAL AGAINST SENTENCE

44.  In his home-made grounds of appeal against sentence, the 1^st applicant submits that the judge erred in not properly considering his role in the events that are subject of Charge 2.  In particular, he contends that the judge erred in taking the same starting point for sentence, namely 6 years in prison, as she did for the 1^st and 2^nd defendants at trial.  They had imported the herbal cannabis and had done so for reward: their flights and accommodation were paid for and they received US $300 each.

45.  The 1^st applicant invited the court to note that in the Attorney General v Tuen Shui Ming [1995] 2 HKC 798 Power VP in the judgment of this court indicated that in a case involving unlawful trafficking of a little over 51 kg of cannabis resin the appropriate starting point would have been 7 years imprisonment, reduced to 6 years in the circumstances of the case having regard to the low concentration of tetrahydrocannabinol.  Of the approach to be taken in respect of herbal cannabis, Power VP said (page 805A-B) :

“Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.”

The 1^st applicant reminded the court that the amount of herbal cannabis in which he unlawfully trafficked was 30.20 kg.

THE 2^ND APPLICANT’S GROUNDS OF APPEAL AGAINST SENTENCE

46.  It was submitted on behalf of the 2^nd applicant that the total sentence of 5 years and 7 months’ imprisonment imposed upon him by the judge in respect of the two charges was manifestly excessive and/or wrong in principle having regard to all the circumstance, in particular the 2^nd applicant’s role and having regard to the totality of sentence.

THE REASONS FOR SENTENCE

47.  The judge imposed sentence on the 1^st applicant, together with the erstwhile 1^st and 2^nd defendants at trial, on 25 March 2010, but imposed sentence on the 2^nd applicant separately on 15 April 2010.  Generally, it is undesirable that sentence is passed on separate occasions on defendants who are joined together in a single indictment.  It appears that the course was taken in this case because the judge had ordered that bone tests be performed on the 2^nd applicant in order to determine his age.

The 1^st applicant

48.  In imposing sentence on the 1^st applicant and the 1^st and 2^nd defendants at trial, the judge noted that the 1^st and 2^nd defendants had directly imported the herbal cannabis into Hong Kong.  Of that, she said (paragraph 20), “It is well recognised that an international dimension to an offence increases the gravity of the matter”.

49.  The judge noted that the 1^st applicant had no criminal record.  Of his role, she determined, “the evidence showed he had kept a close contact with the African source to enable him to collect the two cases of drugs”. In the result, she determined (paragraph 21) :

“I find not much difference for sentence whether D3 was a party to the importation or the subsequent distribution in Hong Kong. His dealing with or dealing in act in receiving the two baggages of cannabis ought to be viewed with the same level of gravity as the importing acts of D1 and D2.”

Starting point

50.  In determining the appropriate starting point the judge referred to the judgment of this court in Tuen Shui Ming and to the passage from the judgment of Power VP quoted above.  Then, the judge made reference to subsequent judgments of this court in which consideration was given to the appropriate starting point in cases of unlawfully trafficking in herbal cannabis :

(i) HKSAR v Kwang Sau Fan [2004] 4 HKC 184

     4 years’ imprisonment for importation from Shenzhen of 9.6 kg;

(ii)     SJ v Lee Siu Kei [2006] 1 HKC 499

     5 years’ imprisonment for 13 kg; and

(iii)    HKSAR v George (unreported CACC449/2007; 25 August 2009)

     an inferred starting point of 5 years and 3 months’ imprisonment for importation from South Africa of 19.86 kg.

51.  Noting that in the present case there had been no dissipation of the amount of herbal cannabis imported into Hong Kong, the judge stated that she took a starting point to 6 years’ imprisonment.  Applying a discount of 50% to their starting point for their pleas of guilty and willingness to give evidence against the other co-accused, the judge imposed sentences of 3 years’ imprisonment on the 1^st and 2^nd defendants.  For his plea of guilty, albeit at a late stage, the 1^st applicant was given a one third discount from the starting point.

The 2^nd applicant

52.  In sentencing the 2^nd applicant, the judge noted that his true identity could not be established.  He claimed to be a national of Nigeria, but it was not known when, how or why he entered Hong Kong.  He had no criminal record.  His age had been estimated at about 19 years from a bone test.  The judge accepted that there was no evidence of any connection with the drug supplier in South Africa, namely the person known as ‘America’.  She proceeded to sentence on the basis that the 2^nd applicant (Appeal Bundle page 62, paragraph 11), “was recruited locally for the collection of the drugs alone”. 

Charge 2

53.  In the result, she adopted a starting point sentence in respect of Charge 2 of 5½ years’ imprisonment.  Given that the 2^nd applicant was convicted after trial, that was the sentence of imprisonment she imposed on him on that charge.

Charge 3

54.  In respect of Charge 3, having noted that the 2^nd applicant was not in a position to pay a fine, the judge took a starting point of 3 months’ imprisonment which, taking account of his plea of guilty on this charge, she discounted by one-third.  In the result, the sentence she imposed on Charge 3 was 2 months’ imprisonment.

55.  On the basis that unlawful trafficking and possession of dangerous drugs for personal use were different offences of a different nature she determined that they ought to be treated separately.  In the result, she ordered 1 month of the 2 month sentence of imprisonment imposed in respect of Charge 3 to be served consecutively to the sentence of 5 years and 6 months’ imprisonment imposed in respect of Charge 2.  Accordingly, the total sentence of imprisonment imposed on the 2^nd applicant was 5 years and 7 months.

A CONSIDERATION OF THE SUBMISSIONS

The 1^st applicant

56.  There is no dispute that the 1^st applicant visited Room 1926 in order to collect the two suitcases containing over 30 kg of herbal cannabis from the erstwhile 1^st and 2^nd defendants. He did so, on the basis of information supplied to him from South Africa.  His role was crucial, creating the link between the importers of herbal cannabis, so that distribution could be affected.  The judge was entitled to treat, as she did, the gravity of his conduct on the same basis as that of the physical importers.  He was part of the same organization.  They played different parts in achieving the same overall objective.

57.  Clearly, the judge took great care in stipulating the appropriate starting point for sentencing the 1^st applicant on Charge 2. She noted that the inferred starting point taken as appropriate by this Court in George for unlawful trafficking in19.06 kg of herbal cannabis, which had been imported from South Africa, was five years and three months imprisonment.  The amount in which the 1^st applicant unlawfully trafficked was more than 50% greater than that amount.  The judge was entirely justified in taking a starting point of 6 years’ imprisonment in respect of the 1^st applicant on Charge 2, applying a discount of one third, and imposing a sentence of 4 years’ imprisonment on the 1^st applicant. There was no merit whatsoever on the proposed grounds of appeal against sentence.

The 2^nd applicant

Charge 2

58.  As noted earlier, the judge made it clear that she approached the determination of the appropriate starting point to be taken for sentence on Charge 2 in his case on the basis that he was “recruited locally for the collection of the drugs alone”.  In consequence, she adopted a lower starting point of 5½ years imprisonment, rather than the starting point of six years imprisonment that she adopted in respect of those involved with the persons who organised the drug trafficking in South Africa, namely the 1^st and 2^nd defendants as physical importers and the 1^st applicant as organising the collection of the herbal cannabis in Hong Kong.

59.  In our judgment, there is force in the submission that in adopting a starting point of five years and six months imprisonment for the 2^nd applicant the judge did not thereby adequately reflect the disparity between his role and that of his co-accused.  That he was a ‘follower’ of the 1^st applicant is obvious not only in the CCTV film in BP International House ,where he is seen to be trailing after the 1^st applicant, but also in the very subordinate role he played in the events in Room 1926.  In the result, we took the view that an appropriate starting point for sentence of the 2^nd applicant on Charge 2 was five years imprisonment.

Charge 3

60.  In her consideration of the appropriate sentence to be imposed in respect of Charge 3, unlawful possession of 0.6 grams of herbal cannabis, the judge noted that she had been informed by counsel that the 2^nd applicant that he could not pay any fine.  No doubt, she made reference to that, because a modest fine was the appropriate sentence for that offence.  The 2^nd applicant was possessed of that herbal cannabis for his own personal consumption.  He had a clear criminal record.  It is wrong in principle to impose a more severe sentence upon a person because he is unable to pay a fine [see R v Chan Yuk Choi (unreported, HCMA390/1995; 19 May 1995)]. 

61.  In any event, the judge fell into error in determining that, given the offence of unlawful possession was different in nature to that of unlawful trafficking in a dangerous drug, their separate treatment required a part of the sentence imposed for unlawful possession of the dangerous drug to be consecutive to that imposed in respect of the unlawful trafficking.  It is to be noted that in cases of multiple unlawful trafficking in dangerous drugs, that are connected closely in time and factually, this Court has said that it is appropriate for the sentencing judge to have regard to the overall quantity of the narcotic (see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830). In cases where there is a great disparity in the volume of the narcotic between one offence and another it will be appropriate to impose concurrent sentences.

62.  In our judgment, the appropriate sentence the judge ought to have imposed on the 2^nd applicant in respect of Charge 3 was a fine of $2,000, with 7 days’ imprisonment in default of payment.  However, dealing with the circumstances as they were at the hearing, we were satisfied that the matter could be dealt with by imposing a sentence of 7 days’ imprisonment to be ordered to be served concurrently with the sentence imposed in respect of Charge 2.

CONCLUSION

63.  For the reasons set out above, we dismissed the 1^st applicant’s application for leave to appeal against sentence.  We treated the 2^nd applicant’s application for leave to appeal against sentence as the hearing of the appeal and quashed the sentences imposed in respect of Charges 2 and 3.  In their place, we imposed a sentence of five years imprisonment in respect of Charge 2 and 7 days’ imprisonment in respect of Charge 3, which sentences we ordered to be served concurrently.  Accordingly, the total sentence of imprisonment imposed on the 2^nd applicant was 5 years.