HKSAR v. DARWIN IBRAHIM

CACC 112/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 112 OF 2003

(ON APPEAL FROM HCCC NO. 311 OF 2002)

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J U D G M E N T

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

1. The applicant was convicted on his own plea before Deputy Judge D Pang of the Court of First Instance of two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The judge passed a sentence of 16 years' imprisonment on each of the two counts and ordered the sentences to run concurrently. The applicant now applies for leave to appeal against sentence.

2. The facts of this case are very simple. On 7 June 2002, while the applicant, an Indonesian national, was in the course of boarding a plane bound for Jakarta, a Customs Officer picked him out for a body search, and a total of eight packets of a dangerous drug was found strapped to his abdomen and his left and right calves. The drug was later examined and found to be 1.99 kilogrammes of a crystalline solid containing 1.86 kilogrammes of methamphetamine hydrochloride, commonly known as "ice".

3. Later, under caution, the applicant admitted that he brought the drug to Hong Kong from Shenzhen through the Lo Wu Control Point on 6 June 2002. This formed the basis of the first count whereas his conduct at the airport founded the second count.

4. The judge adopted a starting point of 24 years' imprisonment for each count and reduced that to 16 years to give credit to the applicant's plea of guilty. The judge also ordered the sentences for each count to run concurrently; the applicant has to serve a total of 16 years' imprisonment.

5. In his grounds of appeal, the applicant mentions his family circumstances, including a young wife, a daughter who is now 1? years old, and a 61-year old mother. He expresses his contrition and explains that he committed the offences due to the economic condition in Indonesia, which made it difficult for him to find a job. His asserts that he has already learned a lesson and hopes that this Court will have mercy on his situation and allow him to reunite with his family sooner by reducing his sentence.

6. The Court has received a letter each from the applicant's wife, mother, elder brother and two elder sisters. All these letters ask the court to have mercy on the applicant and to reduce the sentence.

7. In AG v CHING Kwok-hung [1991] 2 HKLR 125 at 130, the Court of Appeal laid down tariffs for trafficking in "ice". The tariff for trafficking over 600 grams of ice is 18 years upwards. It cannot be said that the starting point of 24 years' imprisonment as adopted by the judge was either wrong in principle or manifestly excessive.

8. Moreover, it is to be noted that according to the admissions made by the applicant, he had come to Hong Kong in the evening of 5 June 2002. On the next day, he went to Shenzhen and returned on the same day with the ice. He was caught while he was boarding a plane for Jakarta. His coming to Hong Kong was purely for the purpose of trafficking in the dangerous drug. This shows clearly that the drug trafficking involved an international aspect, which is an aggravating factor. See AG v Pedro Nel Rojas [1994] 2 HKLR 69 at 72.

9. While we have great sympathy with the family members of the applicant, especially his young daughter who will not be seeing her father for a long time, it is well established that family circumstances play virtually no part in mitigation of drug offences. In R v HUNG Mau-sing, Crim App No. 476 of 1989 (1 August 1990, unreported), at p 2, the Court of Appeal said:

"It is well established that family circumstances play virtually no part in mitigation of drug offences, partly because were it otherwise it would encourage persons in the drug trade to take advantage thereof and partly because the effect upon his family must be obvious to the man in question before he agrees to embark upon such conduct."

10. In the circumstances, this application must be refused.