HKSAR v. MOHAMED OMAR ALLY

CACC407/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 407 OF 2008

(ON APPEAL FROM HCCC 226 OF 2008)

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J U D G M E N T

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Hon Saw J (giving judgment of the court) :

1. On 3 October 2008 at the Eastern Magistrates’ Court, the applicant pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  He was committed to the Court of First Instance of the High Court for sentence.

2. On 21 November 2008, he was sentenced by Deputy High Court Judge Mackintosh to be imprisoned for a period of 15 years and 4 months.  He was at that time aged 26.

3. This is his application for leave to appeal that sentence. 

4. The facts which gave rise to the charge and ultimately the applicant’s conviction and sentence are at all too familiar.

5. On 16 April 2008, the applicant, a Tanzanian national, arrived at the Hong Kong International Airport from Delhi, India ostensibly en route to Kuala Lumpur, Malaysia.  He was detained by customs officers at the Customs Arrival Hall.  An examination of his luggage revealed nothing untoward.  However, for reasons that we need not traverse here the customs officers suspected that he may have been carrying dangerous drugs internally.  Those suspicions proved to be correct.

6. Over the next 48 hours, whilst in custody at both the airport and Queen Elizabeth Hospital, the applicant discharged 142 pellets which were subsequently determined to consist of 1,675.1 grammes of a mixture containing 1,074.59 grammes of heroin hydrochloride which was estimated to be valued in excess of $770,000.

7. The judge took a starting point for sentence of 23 years’ imprisonment and discounted that by the usual one-third for the applicant’s plea of guilty. 

8. The substance of the applicant’s complaint is that others who have been dealt with by the courts in Hong Kong for trafficking in similar quantities of heroin hydrochloride have received lesser sentences than he did.

9. Two of the cases to which the applicant has referred in his written submissions are HKSAR v. Thattephin Tanyamon [2008] 5 HKLRD 155 and HKSAR v. Jocelyn Sanchez Badua and another, CACC327/2006.  In Thattephin, a Thai national was intercepted at the Hong Kong International Airport and found to be in possession of 1,345.33 grammes of heroin hydrochloride.  The trial judge took a starting point for sentence of 24 years which the Court of Appeal reduced to 21 years.  In Badua, both defendants trafficked in 1.8 and 1.7 kilogrammes of heroin hydrochloride respectively.  The trial judge took a starting point for sentence of 21 years.

10. The applicant points to the fact that the quantities of drugs which he trafficked was in fact less than in both of these cases and yet the starting points in Thattephin were adjusted downwards, from 24 to 21 years, and in Badua set by the sentencer at 21 years.

11. On 12 March 2009, this court, differently constituted, gave judgment in HKSAR v. Abdallah Anwar Abbas, CACC304/2008.  It did so after having examined a number of decisions concerning trafficking in substantial quantities of heroin or cocaine.  It did so because of what appeared to be an emerging disparity in sentencing for quantities of heroin or cocaine in excess of the cut off point of the tariff bands laid down in R. v. Lau Tak Ming and other [1990] 2 HKLR 370.  They were also concerned to examine the observations of the differently constituted court in Thattephin which suggested that a starting point for sentence of 24 years’ imprisonment would only be appropriate for trafficking in 2,000 grammes or more of these particular drugs.

12. In Abbas, the Court of Appeal, having considered the schedule of cases referred to in the judgment in Thattephin together with a number of other decisions, observed that :

“21.      It has long been accepted that the international element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes, whereas ‘local’ offences, confined to trafficking in Hong Kong, will usually result in lower starting points for about the same quantity of heroin or cocaine.  As a result, therefore, it is not surprising to find that generally, although not always, a starting point of either 24 or 25 years, to which the court in the scheduled cases (and in paragraph 9 of its judgment) in Thattephin’s case was referring, was applied in cases of trafficking with an international element.

22.       It is helpful, we consider, to go back further in time than the cases mentioned in the schedule in Thattephin.  One case of importance, which does not appear to have been drawn to that court’s attention, is R v Ho Chi-ming [1995] 2 HKCLR 29 in which, incidentally, the Court of Appeal was dealing with a quantity of heroin close to the amount in the present case and in Thattephin.  That case involved the trafficking of 1,213 grammes of salts of esters of morphine (heroin) at Kai Tak Airport which the applicant was intending to take with him on a flight to Taiwan.  The argument centred on whether a 25-year starting point was appropriate.  Litton VP, giving the judgment of the court, said (at page 31):

‘Counsel has also drawn our attention to the judgment of this court in R. v. Lau Yau-yuen [1991] 2 HKLR 278 which concerned a person who played a leading role in an international conspiracy to import a huge quantity of heroin into Australia.  The starting point adopted by the trial judge in that case was 25 years’ imprisonment.  At p.284H Clough, J.A. made the observation that that starting point was, ‘whilst undoubtedly high, appropriate having regard to the circumstances of the particular case’.  Counsel asks us to consider the disparity in the criminality between the case of Lau Yau-yuen and the facts of the present case.  In our judgment a comparison of that kind is inappropriate.  Courts are entitled to apply experience in sentencing and it is clear that attitudes have hardened in the courts since the case of Lau Yau-yuen decided over four years ago.

A sentencing judge is perfectly entitled to have regard to the fact that deterrence is necessary in order to abate the incidence of serious crime.  There is no doubt that the present case is serious.  In our judgment there is nothing wrong in principle in adopting, as the judge did, a starting point of 25 years’ imprisonment.’

23.       As might well be expected following the decision in Ho Chi-ming, although no general guidance had been provided to sentencers for future cases of that kind, the endorsement of the Court of Appeal of a starting point in the region of 24 or 25 years after trial for offences of trafficking in more than a kilogramme, where an international element was involved, thereafter tended to provide a sentencing benchmark in such cases. 

24.       In the event, we are bound respectfully to suggest that had the court in Thattephin had the advantage of the very extensive research placed before us and of the decision in Ho Chi-ming, the result may have been different but, in any event, if Thattephin Tanyamon was the beneficiary of a sentence which was light, that cannot avail this appellant if his sentence was a proper one in all the circumstances.  This accords with well established principle.

25.       Sentence disparity is given careful attention in Sentencing in Hong Kong [5^th ed.] p. 195 where, in the opening paragraph, the learned authors have concisely paraphrased the kind of anxiety likely to be experienced by an offender when there has been a sentencing decision which seems to favour one defendant over others in a similar position to himself.  This passage reads:

‘The fair and consistent application of criminal sanctions promotes confidence in the justice system as a whole.  The policy of the courts is to seek to administer punishments which are aligned to offenders whose culpability is broadly the same or similar.  Quite apart from the issue of public expectation, the offenders themselves will be perplexed if they are not treated equally, at least in the absence of good reason.’

Later (at p. 200), there is a citation taken from Stock JA’s judgment in HKSAR v Chow Tak-fuk, CACC 428/2004, which reads:

‘It seems to us that the applicant’s brother was the beneficiary of an extraordinarily light sentence and what this applicant now seeks is the benefit of the same windfall. According to established principle, he is not entitled to that windfall.’

…”

13. In the end result and by reason of its concern that there were disparities emerging in sentencing for trafficking in substantial quantities of heroin hydrochloride and cocaine, new guidelines for sentencing were laid down for trafficking in those drugs in amounts in excess of 600 grams.  Those guidelines, the court noted “cannot have retrospective effect” but nevertheless as will be seen, are a useful means by which to determine whether or not the applicant’s sentence is excessive.

14. Insofar as the applicant seeks to pray in aid the decision in Badua, the Court of Appeal appears to have concluded that Badua fell into a group of cases which were inconsistent with the approach in R. v. Ho Chi Ming [1995] 2 HKCLR 29.  They noted that :

“26.      A general pattern is discernible from the thirteen examples chosen for the schedule in Thattephin (paragraph 19 above) amongst the cases which involved an international element where the quantities being trafficked were below 6 kilogrammes but above 1 kilogramme.  With the exception of case (10), HKSAR v Jocelyn Sanchez Badua and Anor, CACC 327/2006, where the judge in the Court of First Instance adopted a 21-year starting point, all of the other trafficking cases with an international element carried a comparatively high starting point when set alongside all but one of the ‘local’ trafficking cases involving about the same quantity of heroin. …”

15. In the more recent case of HKSAR v. Balachawe Rufina Umangal, CACC208/2008 decided after Abbas, the Court of Appeal again referred with approval to Ho Chi Ming.

16. In Balachawe Rufina Umangal, the defendant, a Philippines national, pleaded guilty to one count of trafficking in 1.99 kilogrammes of a mixture containing 1.45 kilogrammes of heroin hydrochloride.  The drugs were found inside luggage brought into Hong Kong from Mumbai by the defendant who was intercepted by customs officers at the arrival hall of the Hong Kong International Airport.  The judge took a starting point for sentence of 24 years.  After giving the defendant the usual one-third discount of her plea, she was sentenced to 16 years’ imprisonment.  The sentence was upheld on appeal.

17. The applicant has also referred us to two other decisions of the Court of First Instance, one of these is HKSAR v. Pua Che Hoong, HCCC75/2008.  This case involved two defendants.  Each pleaded guilty to one count of trafficking in 2.09 kilogrammes of a mixture containing 1.69 kilogrammes of heroin hydrochloride.  A starting point for sentence of 23 years’ imprisonment was adopted for both defendants. 

18. It suffices to say of that decision that irrespective of the new guidelines in Abbas, the long line of authorities before that which were analysed in Abbas, and in particular Ho Chi Ming, a starting point for sentence of 25 years’ imprisonment would have been more appropriate.  Pua Che Hoong must therefore be properly regarded as a sentence which fell outside the norms appropriate at the time the sentence was passed.  It suffices to say that the same observations apply to the other case to which we are referred, namely HKSAR v. Msomi Thomas Joseph, HCCC56/2007.

19. The amount of drugs involved in the present case is substantial, namely 1.07 kilogrammes of heroin.  There is also the international element which is an aggravating feature. 

20. Applying not the new guidelines in Abbas but the long line of authorities before that as analysed in Abbas, in particular Ho Chi Ming, the respondent submitted that a starting point for sentence in the region of 23 years’ imprisonment would have been appropriate.

21. In the course of sentencing, the judge referred to HKSAR v. Mtwazi Carlos Adam, CACC299/2007 and HKSAR v. Garcia Oalacios March Antonio, CACC154/2007.  In Adam, the defendant imported a quantity of heroin slightly larger than that in the instant case, namely 1.11 kilogrammes.  A starting point for sentence of 24 years’ imprisonment was adopted, i.e. one year more than that adopted for the applicant in the instant case.  A one-third discount was given for the defendant for his guilty plea and the sentence was reduced to one of 16 years.  That sentence was upheld on appeal.  In Garcia, the defendant imported a quantity of heroin slightly smaller than that in the instant case, namely 857 grammes.  A starting point for sentence of 25 years’ imprisonment was adopted which was however reduced to just over 22 years on appeal, i.e. about one year less than that adopted for the applicant in the instant case.  A one-third discount was given for the defendant for his guilty plea which reduced the sentence to 15 years.

22. In Abbas, the applicant, also a Tanzanian national, trafficked in 1,218.86 grams of heroin in almost identical circumstances to this applicant.  The judge adopted a starting point of 25 years’ imprisonment and imposed a sentence of 16 years and 8 months.

23. The Court of Appeal was satisfied that the judge in Abbas had imposed a sentence which “accorded with all modern authority” and the same observation applies in the instant case.  Whether the applicant’s offence had been committed before or after the judgment in Abbas,the starting point for sentence of 23 years given the quantities of the drugs and the aggravation for the international element cannot be faulted.  

24. The fact that other drug traffickers here received sentences which are less than this applicant cannot engender a genuine sense of grievance unless of course the starting point adopted for his sentence is too high.  In this case it is not.

25. The sentence is neither manifestly excessive nor wrong in principle and the application is dismissed.