HKSAR v. LE GRANGE MARC LEE

CACC 406/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 406 OF 2012

(ON APPEAL FROM HCCC NO. 125 OF 2012)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

Introduction

1.  On 20 April 2012, the applicant pleaded guilty at Eastern Magistracy 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 High Court and appeared before V Bokhary J on 7 June 2012 for sentencing.  Having confirmed his plea, he was sentenced to 9 years’ imprisonment.

2.  On 12 October 2012, the applicant filed an application for an extension of time to file a notice of application for leave to appeal against sentence.  The case was brought up for mention on 26 February 2013 before Cheung CJHC, when the applicant indicated his intention to withdraw his application for leave to appeal against sentence.

3.  The applicant appeared before Cheung CJHC again on 22 April 2013 for mention, indicating his desire to abandon his appeal but requesting assistance in completing Form VII.  The applicant was provided with the said form the same day.

4.  A Notice of Abandonment (the “Abandonment”) (Form VII) was signed by the applicant on 26 April 2013.

5.  On 20 May 2015, the applicant submitted an affirmation (the “Affirmation”) to treat the Abandonment as a nullity.

The facts

6.  On 8September 2011, the applicant was intercepted for customs clearance on his arrival at Hong Kong International Airport from Dhaka after being refused permission to land.

7.  He was sent to Queen Elizabeth Hospital upon suspicion of internal concealment of items within his body.  Upon examination at the hospital, the presence of foreign objects in his body was confirmed. The applicant was arrested and cautioned, upon which he admitted that he had 50 pellets of heroin in his body.

8.  Subsequently, the applicant discharged a total of 57 packets containing suspected dangerous drugs, which upon examination were found to be 0.57 kilogramme of a mixture containing 0.21 kilogramme of heroin hydrochloride and 0.06 kilogramme of monoacetylmorphine hydrochloride.  The estimated retail value of the dangerous drugs at the time of seizure was HK$449,730.

9.  In a subsequent interview, the applicant stated, inter alia, that:

(i) he had swallowed the pellets at the home of a man called Martin, and would be paid US$16 per pellet;

(ii) upon arrival in Hong Kong, he was to call Martin and another man called Ken, who would collect the pellets and pay the applicant;

(iii) he did not know what was inside the pellets.

The applicant later admitted, pursuant to his plea of guilty, that he was trafficking in the dangerous drugs concerned.

Mitigation

10.  It was submitted on behalf of the applicant that the case fell towards the bottom end of the sentencing guidelines for 200 to 400 grammes of heroin narcotic, which provided for 12 to 15 years’ imprisonment.[1]

11.  Although the case involved an international element, it was submitted that this could be dealt with by enhancing the starting point by a modest 6 months’ imprisonment.  The case of HKSAR v Abdallah [2009] 2 HKLRD 437 was referred to, which had held that the enhancement of the starting point for sentence for the international element of trafficking in quantities above 1 kilogramme of heroin should be no less than 2 years’ imprisonment.  Here, the quantity was significantly less than 1 kilogramme.

12.  It was also contended that the international element in this case was confined to importation into Hong Kong.

13.  Finally, it was submitted that the applicant was a drug addict and had debts, in respect of which he felt tormented by his creditors.  He was worried that harm might befall his children, so had agreed to traffic dangerous drugs into Hong Kong.

Reasons for sentence

14.  In sentencing, the judge considered the appropriate starting point for the quantity concerned to be in the region of 13 years’ imprisonment.  This was enhanced by 6 months to take into account the importation of drugs into Hong Kong from abroad, making a total term of 13½ years.  The judge observed that the only real mitigation available to the applicant was his early plea of guilty, for which he would be given the full one-third discount.  Accordingly, she passed a sentence of 9 years’ imprisonment.

Grounds of appeal against sentence

15.  In his original application for an extension of time in which to file a notice of application for leave to appeal against sentence (out of time) dated 12 October 2012, the applicant merely indicated in a handwritten letter attached thereto that the sentence was manifestly excessive.  In argument before us this morning, the applicant has queried why the monoacetylmorphine hydrochloride quantity should be added to the heroin hydrochloride quantity in order to arrive at a total narcotic quantity for sentencing purposes, when the monoacetylmorphine hydrochloride component does not appear to have featured in the sentencing of two other cases to which he has referred us, which cases we discuss later in this judgment.

Application to treat abandonment as a nullity

16.  In a further handwritten letter to the Court attached to his affirmation in support of his application to treat the Abandonment as a nullity dated 20 May 2015, the applicant explained that he had abandoned his appeal because he was not given assistance by the Legal Aid Department and he felt his reasons or grounds for appealing were insufficient.  He has, as we have just noted, referred us to two cases: one a decision of this Court, the other at first instance, in which lower sentences were passed for similar quantities of heroin in importation cases.

Consideration

17.  No good reasons have been presented why this Court should, or could, treat the applicant’s Abandonment of 26 April 2013 as a nullity.  It is clear from the history of his appearances before Cheung CJHC that the applicant’s mind went with his decision.  Now, after more than two years, he appears to have changed his mind.  That, however, provides no basis for this Court to treat his Abandonment as a nullity.

18.  Nevertheless, to reassure the applicant that he is not being deprived of a ground of appeal he might otherwise have had, we can say that there is no merit in his appeal.  The total quantity for which he fell to be sentenced was 0.27 kilogramme (or 270 grammes) of heroin narcotic, made up of 0.21 kilogramme (or 210 grammes) of heroin hydrochloride and 0.06 kilogramme (or 60 grammes) of monoacetylmorphine hydrochloride; the two drugs being treated as the same for sentencing purposes: see HKSAR v Kanfune Bashiri Rajabu (unrep., CACC 493/2012); HKSAR v Salvador Dias (unrep., CACC 44/2015).

19.  Whether or not, in the two other cases to which the applicant has referred, there were quantities of monoacetylmorphine hydrochloride involved, or whether, even if there were, they were significant enough to have had any effect on the quantities of heroin narcotic for which the defendants fell to be sentenced, we do not know.  In any event, this Court has made clear in Kanfune Bashiri Rajabu, at para’s 5-6, that monoacetylmorphine hydrochloride and heroin hydrochloride are both salts of esters of morphine, with the same narcotic potency, and should be treated in the same way for sentencing purposes.

20.  There can be no arithmetical complaint about the judge’s adoption of 13 years’ imprisonment in respect of 270 grammes of heroin narcotic under the guidelines in R v Lau Tak-ming and others [1990] 2 HKLR 370, which stipulate sentences of 12 to 15 years’ imprisonment for trafficking between 200 and 400 grammes of heroin narcotic.  Nor can there be any complaint of the enhancement of 6 months’ imprisonment for the international element.

21.  In the first instance decision to which the applicant has referred, namely HKSAR v Mbily Good-Present Sipho, HCCC 122/2013, the quantity involved was 210 grammes of heroin narcotic, for which the judge identified a starting point of 12 years’ imprisonment, enhanced by 6 months for the international element, and then discounted by a third for plea to 8 years and 4 months’ imprisonment.  We are, however, dealing with 270 grammes.

22.  In HKSAR v Mothosola Malefetsane Edy (unrep., CACC 50/2014), this Court approved the trial judge’s adoption of 12 years’ imprisonment as a starting point in respect of trafficking in 220 grammes of heroin narcotic, but reduced the judge’s enhancement for the international element to 6 months.  The resulting sentence was, therefore, the same as Mbilyin respect of roughly similar quantities.  However, again, the quantity in Mothosola was significantly less than the 270 grammes of heroin narcotic with which we are dealing in this case.

Conclusion

23.  In the circumstances, we refuse both the application for leave to appeal out of time and the application to treat the applicant’s earlier Abandonment as a nullity.

[1] See R v Lau Tak-ming and others [1990] 2 HKLR 370