HKSAR v. LE ROUX KAREN ANTOINETTE AND OTHERS

DCCC 1195/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1195 OF 2009

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Reasons for Sentence (D1 to D3)

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1.  D1 and D2 were jointly charged with trafficking in 30.2 kilogrammes of herbal cannabis at the Hong Kong airport (Charge 1).

2.  D3 and D4 were jointly charged with the trafficking in the same quantity of drugs, namely 30.2 kilogrammes of herbal cannabis in Hong Kong (Charge 2).

3.  D4 faced an additional charge of possessing 0.6 grammes of a herbal cannabis (Charge 3).

Facts of the Case

4.  The events happened on a Sunday, 12 July 2009. D1 and D2 imported 30.2 kilogrammes of herbal cannabis into Hong Kong from Johannesburg of South Africa. D3 and D4 were the receivers of the drugs in Hong Kong.

5.  D4, additionally had a small packet of herbal cannabis in his shirt pocket at the time when he collected the suitcase of drugs from D1 and D2.

Defendants’ Personal Background

6.  D1, aged 41, a South African national, was born and brought up in South Africa. A person with a clear record. She was married and had 2 children, aged 17 and 19. She had 2 marriages neither of which turned out to be too successful. Her 1^st ex-husband left her without providing maintenance. Her 2^nd ex-husband pestered and harassed her. Her real estate business was failing. She came to know an African male by the name of Ernest Uccherson, who is otherwise known by the nickname “America”. It was Uccherson who arranged the suitcase of drugs, the air ticket and the hotel for her and D2.

7.  In mitigation it was said Uccherson persuaded D1 to bring the drugs to Hong Kong with the threat of harm to D1’s children and D2’s family when D1 tried to back out from the arrangement shortly before the trip.

8.  It was also said D1 had full support of her sister back in South Africa and D1 was truly remorseful for what she did. When she returns to Africa she intends to speak to those in her church about her experience.

9.  D2, aged 20, was also born and brought up in South Africa, and has a clear record both in Hong Kong as well as in South Africa. His father left his mother when D2 was 3 months old. D2 was brought up by his mother all along. His mother remarried but his stepfather walked out of the matrimonial home too. His mother died about 3 years ago in a motorcycle accident. His 10 years old half sister is now staying with the father.

10.  The friend of D2’s mother, a Ms Benson, blamed the bad influence D1 had over D2. D2 gave a non-prejudicial statement to the authorities shortly before this trial was due to start. In his non-prejudicial statement D2 said it was about June 2009 that D1 asked him if he was willing to bring some drugs to a place in Asia. D1 told him he would be given a reward of 10,000 South African rands for the trip.

11.  D3, aged 41, married and has 3 children, aged 7, 9 and 11. It was said he had a degree in Business & Administration. He used to work as a purchasing manager with a furniture shop in Benjou earning about US$1,200 per month. He came to Hong Kong in May 2009 to source furniture for his company.

Starting Point References

12.  Counsel dwelled at some length on the proper sentence this court should adopt with reference to the two decisions on sentencing guide for cannabis resin in Chan Chi Man [1987] HKLR 221 and Tuen Shui Ming [1995] 2 HKCLR 129.

13.  One observation which this court do accept is there is no sentencing tariff for herbal cannabis. What former Chief Justice Sir Dennis and the late Mr. Justice Power (VP as he then was) were discussing in the cases of Chan Chi Man and Tuen Shui Ming were cannabis resin. Both formed the view that they do not wish to lay any sentence guide for quantity of drugs above 9 kilogrammes of cannabis resin, save to suggest it ought to be a term above 4 years imprisonment.

14.  In Chan Chi Man it was said the concentration of tetrahydrocannabinol (THC for short), the principal psychoactive constituent, in herbal cannabis is about 8% of the bulk weight, and about 15% in cannabis resin; suggesting cannabis resin is just twice as potent as herbal cannabis.

15.  In Tuen Shui Ming the Court was given more up-dated laboratory data in the 1990s about the THC concentration in herbal cannabis. It was said that the THC concentration in herbal cannabis varied according to the degree of cultivation and the climate where the plants were grown. The Court of Appeal accepted then the concentration of THC in cannabis resin, as found in the 90s, was about 4 times higher than herbal cannabis.

16.  It was said by Power VP (as he then was) at p-135 of the report: “… a sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil. Any adjustment should…. be within a range dictated by the starting point indicated in the tariff. 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 that they had a similar amount of cannabis resin. ….. Tariffs, as we have said in the past, are not a straight jacket. A judge must bear the tariff in mind when sentencing but must, in the outcome, arrive at a sentence which gives proper weight to the facts of the case before him. For example, selling cannabis in any form to children might well warrant a sentence well in excess of that suggested by the guidelines.”

17.  Apart from the 1987 and 1995 cases referred to and much discussed by counsel, there were also current cases such as

Kwang Sau Fau CACC-179/2001 (18 July 2002): where 4 years was considered as the appropriate starting point for sentence for 9.6 kg of herbal cannabis by Stock JA (as he then was).

Lee Siu Kei CAAR-4/2005 (20 Jan 2006) where 5 years SP was considered suitable for 13 kg of herbal cannabis by the former VP, Mr. Justice Stuart-Moore.

George CACC-449/2007 (25 Aug 2009) where a 3 ½ years sentence (indicating a starting point of 5 years and 3 months) for 19.86 kg of herbal cannabis was considered well within the sentencing tariff by Saw J.

18.  Prosecuting counsel also referred to other decisions of my fellow brothers Judge Whaley and Judge Tallentire in Esterhuizen Alwyen DCCC-1069/2008 (20 January 2009) as well as Maria Duvenhage DCCC-568/2008 (15 July 2009).

Starting Point adopted

19.  The starting point for sentence should really reflect the fact circumstances surrounding the commission of the offence, rather than the personal background of the defendant, save and except for recidivists who have appalling lengthy records. None of the defendants before me here have any criminal record before the present offences. The starting point for sentence for all of them should therefore reflect the fact circumstances of the case, and their involvement in the case. Individual personal background goes to mitigation rather than the setting of the starting point.

20.  In the present case it was a direct importation by D1 and D2, which means as far as D1 and D2 are concerned they are bringing drugs into Hong Kong from abroad. It is well recognized that an international dimension to an offence increases the gravity of the matter. Not only does the international element reflect a greater complexity in the smuggling activity and the trafficking chain, it further magnifies the difficulty with which the local authority needs to put up to contain the problem.

21.  There was some dispute as to whether D3 ought to be considered to be a party to the importation team as opposed to a receiver and handler in Hong Kong. As D3 was not charged as a party to the first charge of trafficking with D1 and D2, the court should not consider him to be in the importation team. The rest of the evidence showed he had kept a close contact with the African source to enable him to collect the 2 suitcases of drugs. The only uncertainty left is whether D3 was a party of the importing team or whether he operated at the other end of the deal as a receiver in Hong Kong. With D3’s close and direct connection to the African source, 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 2 baggages of cannabis ought to be viewed with the same level of gravity as the importing acts of D1 and D2.

22.  I need say no further about the harm a prohibited drug can bring upon society. In light of the gravity of the offence, drug trafficking is punished with reference to the harm brought upon the local society. Personal circumstance of respective defendants, unless in extreme cases, pales into the background of the sentencing exercise.

23.  The sentencing tariff set out in Chan Chi Man as recast in Tuen Shui Ming is about cannabis resin. This court is not in a position to evaluate the current climate of trafficking activities between herbal cannabis as opposed to cannabis resin. Available documented cases show there is far greater incidence of herbal cannabis trafficking as opposed to cannabis resin trafficking.

24.  When a trafficking activity is being sanctioned and visited with a punishment, the court obviously bears reference to the level of the psychotic element of the drug to assess its harmful effect upon its user. The court should also take into account of the likely manner in which the drug is being consumed, the age group of the targeted users, the likely profits the trafficker would make, the harm upon society and the prevalence of the activity at the time of the offence.

25.  In hope to achieve certainty, the court take guidance from the wisdom of the higher court and bear reference to the level of sentences meted out by brother judges of the same court to reflect the judicial approach, which is often a current indication of public sentiment towards the criminality of an event bearing reference to the changing needs of society at the time of sentence.

26.  One cannot agree more with the fact that Chan Chi Man and Tuen Shui Ming were cases decided back in the 80s and 90s where the top judges were addressing the issue from the considerations and information current at the time. I do not suggest for a moment that the sentence tariff in Chan or those recast in Tuen are out-dated. Rather the rest of more current cases in the 2000 era would likely give a more recent reflection of the judicial approach towards sentence in the present day.

27.  A conversion from cannabis resin to herbal cannabis and vice versa, to me, is likely hypothetical, for I believe a user of resin or herbal leaf would likely consume the drug in the form it was provided rather converting it from one form to the other for the purpose of consumption.

28.  Further, I cannot resist making the observation that Chan Chi Man and Tuen Shui Ming were cases making observation on defendants possessing the drugs for trafficking, rather than dealing with the actual trafficking activity, whereas the three 2000s Court of Appeal cases referred to above all deal with importation of drugs. On the facts before me in this case, I am dealing with defendants who were actually trafficking in the drug, arranging and organizing them to be brought into Hong Kong from South Africa for subsequent disposal.

29.  Bearing reference to Tuen Shui Ming and the current cases decided in the 2000s, I consider the appropriate starting point for sentence for direct dealing in 30.2 kilogrammes of a herbal cannabis by way of importation and by receiving them from the importers for subsequent disposal should be a term of 6 to 6 ½ years imprisonment. Since there has been no dissipation of the bulk of drugs as yet, I am prepared to adopt the lower starting point of 6 years imprisonment.

Mitigating factors

30.  D1, aged 41, pleaded guilty, clear record, participated in a control delivery, has given evidence in court regarding the trial of D4. Her non-prejudicial statement possibly had an influence on D3’s last minute change of plea. D1 suggested she acted under coercion. On the other hand D2 in his non-prejudicial statement said he was introduced to Uccherson in June, about a month before the trafficking flight. D2 had in fact learned of his reward of 10,000 South Africa rands from D1 before he agreed to taking part in the activity. D2 accepted he took up his role willingly on the assumption that it was safe for him to do so. I find the suggestion of Uccherson’s coercion inconsistent with the account given by D2.

31.  In light of all of the accepted mitigating factors, I am prepared to accord D1 an overall reduction of 50%.

32.  D2, aged 20, pleaded guilty, clear record, relatively much younger than D1. D1 had no argument that she was the one who introduced D2 to this trafficking activity. D2 participated in the control delivery. He offered to give evidence for the prosecution but was not selected though the content of his non-prejudicial statement reflected very much the same factual narration as those given by D1. D2’s intention to testify was fully exposed in court in the course of his mitigation. He was not the mastermind behind the whole of the importation.

33.  In light of the relevant mitigating factors for D2, I am prepared to grant him a 50% discount.

34.  D3, aged 41, clear record, pleaded guilty at the commencement of the trial. As indicated earlier on, I accept his criminality should be in the same category as D1 and D2. In light of his plea, though a little late in time, I am prepared to give him the conventional 1/3 discount.

Sentence

35.  For the first charge D1 and D2 shall both serve a term of 3 years imprisonment.

36.  For the 2^nd charge D3 shall serve a term of 4 years imprisonment.