HKSAR v. EDDY RUSTAM

CACC 528/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 528 OF 1999

(ON APPEAL FROM HCCC 245 OF 1999)

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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) :

1. The applicant pleaded guilty in the Eastern Magistrates' Court to a charge of trafficking, on 27 April 1999, at the customs arrival hall of Hong Kong International Airport, in 789 tablets containing 24.8 grammes of methamphetamine hydrochloride ("ice").

2. On 7 October 1999, the applicant confirmed his plea of guilty before Burrell J in the Court of First Instance. The judge, having taken a starting point of seven years' imprisonment, imposed a sentence of 41/2 years' imprisonment upon the applicant who now seeks leave to appeal against this sentence on the ground that it was manifestly excessive.

3. Mr Macrae, SC, on behalf of the applicant, particularized his ground of appeal in these terms :

"The learned Judge found that:

'Because of the particular facts of your case, and the matters which have been brought to my attention about your intention to use the drugs for your own consumption substantially, I will take as my starting point for sentence, a period at the very bottom of that band. I cannot do any more than that.'

In the result, the learned Judge passed a sentence of 4 years 6 months imprisonment from a starting point of 7 years. The sentence passed was that which would have been appropriate in respect of a plea entered at the first available opportunity to trafficking in 24.8 grammes of methamphetamine hydrochloride, without taking into account the various matters the learned Judge found in the applicant's favour, in particular his intention to use the drugs substantially for his own consumption."

4. The guidelines for sentence in cases involving ice were set out in Attorney General v. Ching Kwok-hung [1991] 2 HKLR 125. Four sentencing bands are set out therein. Taking the first two bands, these provide for sentences of three to seven years imprisonment for trafficking in up to 12 grammes and from seven to ten years for trafficking in quantities between 10 and 70 grammes of ice. On this broad basis, the judge would have been entitled to have taken a starting point of up to eight years' imprisonment and his decision, on the facts as presented, to take a starting point at the lowest end of the second band cannot, in our view, be criticized.

5. The applicant had been found to be carrying a cloth bag tucked into his waistband at the back of his trousers. This contained eight further bags containing the tablets referred to in the charge. An observant customs officer had noticed a bulge on the back of the applicant which led to the discovery of the illicit drugs. When they were found, the applicant explained that the tablets were for his friend. However, in a later interview, the applicant said that he had purchased the ice in Indonesia for US$3,000 and that his intention had been to go to Taiwan to have fun. He said the ice was to use with his friends. He denied any intention to sell the ice.

6. The applicant is an Indonesian national, aged 34. He explained that his purpose for being in Hong Kong was to allow him sufficient time to obtain a visa to go to Taiwan which he could obtain more quickly in Hong Kong than in Indonesia.

7. In passing sentence, the judge said, in addition to the words which have already been quoted from the ground of appeal :

"So my starting point for sentence, because of the particular facts of this case, is seven years' imprisonment. I then reduce that sentence by a further two and a half years because of the fact that you have pleaded guilty, which is the best possible mitigation, because also of the fact that I have received very impressive written character references about you, and because of your personal circumstances. And for all those reasons, the sentence I pass, which I believe is the shortest I can pass in all the circumstances, is a sentence of four and a half years' imprisonment."

8. Mr Macrae referred us to examples of other trafficking offences in which defendants had pleaded guilty to charges of trafficking where the facts revealed that drugs had been imported to Hong Kong for the purposes of self-consumption. This, however, was not the situation in the present case. Indeed, Mr Macrae has never suggested that it was. It is quite clear that the applicant was not merely a trafficker in a technical sense simply because he imported the drugs. He was a trafficker in the true sense because he intended to supply some of the drugs to his friends. It made no difference at all that his intention was not to sell the tablets.

9. It is clear to us that the judge had taken into account the applicant's mitigation and it is implicit in his sentencing remarks that a higher starting point would have been taken if it had not been for the factors that we have referred to in the course of this judgment. The judge would have been entitled to have taken a starting point of seven years for only 10 grammes of ice. Furthermore, he discounted the sentence by more than a third. In these circumstances, the sentence imposed cannot be described as either wrong in principle or manifestly excessive.

10. The application is dismissed.