HKSAR v. CHAIYASEN ARAYA

CACC396/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 396 OF 2007

(ON APPEAL FROM HCCC 233 OF 2007)

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J U D G M E N T

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Suffiad J (giving the judgment of the Court) :

1. On 14 September 2007, the applicant pleaded guilty to one count of trafficking in dangerous drugs at Eastern Magistracy Court.  The proceedings were then transferred to the High Court for sentencing.  The applicant came before Saw J on 7 November for sentencing.

2. After hearing mitigation by defence counsel, Saw J adopted a starting point of 15 years and, giving the full one-third credit to the applicant for her plea of guilty at the earliest opportunity, sentenced the applicant to 10 years’ imprisonment.

3. The applicant now seeks leave to appeal that sentence of 10 years’ imprisonment.

Background

4. The Summary of Facts in the case which was admitted by the applicant when she pleaded guilty showed that on 23 March 2007, the applicant, a Thai female, arrived at Hong Kong International Airport from Bangkok.

5. No contraband was found in her baggage when searched.  However, upon a body search of the applicant, a total of 52 pellets of heroin were found inside the cups of her bra and her underpants.

6. The applicant was arrested and taken to Queen Elizabeth Hospital for examination by X-ray which revealed foreign objects inside her body.  In the following three days, the applicant discharged a further 20 pellets of heroin while in hospital.

7. When interviewed under caution on 24 March 2007, the applicant admitted that she was given the pellets in Bangkok the day before and that she had swallowed more than 10 pellets.  She further admitted that she was instructed to bring the pellets to Guangzhou where she would be contacted on her mobile phone, and that if she successfully delivered the drugs she would be rewarded with US$2,000.  She also admitted to knowing that the drugs were heroin.

8. The 72 pellets were examined by Government Chemist who confirmed that they contained totally 596.11 grammes of a mixture containing 410.60 grammes of heroin hydrochloride.

9. The Intelligence Bureau of the Customs and Excise estimated the street value of the mixture containing the heroin hydrochloride found from the applicant to be HK$262,884.

The application for leave to appeal sentence

10. In her homemade ground of appeal, the applicant complains that her sentence, which she erroneously believed to be a sentence of 15 years’ imprisonment (when that was the starting point used by the judge but the sentence passed was in fact discounted to 10 years’ imprisonment) was manifestly excessive when compared to a sentence of 12 years’ imprisonment passed on Napassorn Arponcharit ([sic] Arphornwit) for two counts of trafficking in dangerous drugs involving a total mixture of 650 grammes containing 449 grammes of heroin hydrochloride.

11. First it should be noted that there are three factual mistakes in those grounds of appeal.  Firstly, the defendant in the case referred to by the applicant is named Arphornwit (and not Arponcharit) Napassorn.  This can well be due to the translation being inaccurate since those grounds of appeal were penned in the Thai language by the applicant herself.

12. Secondly, the total amount of the mixture in that case was 631.77 grammes and not 650 grammes, albeit that the amount of the herorin hydrochloride was correctly stated to be 449 grammes.

13. Thirdly, Napassorn Arphornwit was sentenced totally to 8 years’ imprisonment (not 12 years’ imprisonment) although a starting point of 12 years was taken by the judge in respect of the 2^nd count.

14. The above it seems was the only ground put forward by the applicant in seeking leave to appeal against sentence.

Decision

15. In so far as the applicant seeks to rely upon the case of Napassorn, we are grateful to Mr Lee appearing for the HKSAR to have brought to our attention the transcript relating to the sentence passed on Napassorn.

16. From that transcript, we know that Arphornwit Napassorn was charged with two counts of trafficking in a dangerous drugs in HCCC194/2007.  The 1^st count involved trafficking in 122.23 grammes of a mixture containing 85 grammes of heroin hydrochloride (concealed in her body) and the 2^nd count with trafficking in 506.54 grammes of a mixture containing 364.46 grammes of heroin hydrochloride (concealed in her shoes).

17. She arrived from Delhi in Hong Kong for Customs clearance.  A body search revealed four pellets of dangerous drugs protruding from her vagina and she admitted those were drugs saying they were for her own use.

18. Later in Queen Elizabeth Hospital a medical examination revealed foreign objects to be concealed inside her body cavity and a further nine pellets of dangerous drugs were recovered between 31 March and 2 April 2007.

19. The officers dealing with her property at the hospital found her shoes to be very heavy.  The soles of her shoes were cut open in her presence and a total of 15 pellets of dangerous drugs were found concealed inside each shoe.  When cautioned, she replied that the shoes were given to her by a man and she did not know anything about the pellets concealed in them.

20. The 13 pellets of dangerous drugs found from her body cavity related to the 85 grammes in the 1^st charge.  The 30 pellets from the shoes comprising the 364.46 grammes of heroin hydrochloride formed the 2^nd charge.

21. Napassorn pleaded guilty at committal, the case transferred to the High Court and she was brought before Beeson J on 17 October 2007 for sentencing.

22. The judge found that the only mitigation in the case was Napassorn’s plea of guilty.  For the 1^st count, the judge took a starting point of 8 years and giving a full one-third discount, sentenced Napassorn to 5 years 3 months’ imprisonment.  For the 2^nd count, the judge took a starting point of 12 years and giving the same one-third discount, sentenced Napassorn to 8 years’ imprisonment.  The judge further ordered both those sentences to be concurrent making a total sentence for both counts to be 8 years’ imprisonment.

23. That case was the subject matter of comment by Stuart-Moore VP in CACC397/2007 and CACC466/2007 when the applicants in both those cases sought to rely on the case of Napassorn in their respective applications for leave to appeal against sentence, in like manner to the present applicant today.

24. Moore In that case, Stuart Moore VP had this to say :

“11.   The respondent observed that Beeson J had given no reason for ordering these sentences to run concurrently, making an overall sentence of 8 years’ imprisonment.  Heroin weighing 449.46 grammes following the guidelines in R v Lau Tak Ming and Anr [1990] 2 HKLR 370 at 387, would usually have merited a starting point of about 16 years and 3 months.  It follows from this that after the one-third discount for the defendant’s plea of guilty, a sentence of 10 years and 10 months in total should normally have been imposed.

Unquestionably, the sentence imposed on Arphornwit Napassorn was extremely lenient, if not manifestly inadequate.  On the face of it, therefore, unless there is anything which has eluded Mr. Tam’s researches (which we have to say in this and the other cases cited by the present applicant as appellate proceedings are still pending), a sentencing  mistake was made as a result of which Arphornwit Napassorn became the beneficiary of a considerable and utterly undeserved windfall in her favour.”

25. We agree that the case of Arphornwit Napassorn cannot be regarded as a precedent for a starting point below 15 years for heroin weighing over 449 grammes.

26. Furthermore, we take the view that the starting point of 15 years adopted by the judge in the present case was entirely proper and correct and within the sentencing guidelines laid down in the case of Lau Tak Ming (supra).  It was neither manifestly excessive nor wrong in principle.

27. There is therefore no proper basis on which we could interfere with the sentence passed in the present case.  The fact that error had been made in sentencing in other similar cases provides no reason at all for reducing the sentence in the present case.

28. In HKSAR v. Chow Tak Fuk CACC428/2004, Stock JA made this clear when he said:

“6. The applicant, who appears today in person, complains that whereas he pleaded guilty, his sentence is the same as that imposed upon his brother who had pleaded not guilty.  This is an obvious disparity, but it is well-established that where different sentences are passed upon different defendants for the same offence by different judges on different occasions, the relevant consideration is whether the sentence passed on the accused is proper.  It seems to us that the applicant’s brother was the beneficiary of an extraordinary 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.”

29. In the present case therefore, as the sentence passed on the applicant were strictly in accordance with the sentencing guidelines set down in Lau Tak Ming, the applicant can have no justified cause of complaint.

30. We consider that the sentence passed on the applicant was neither wrong in principle nor manifestly excessive.

Conclusion

31. Accordingly, and for the reasons given above, leave to appeal is refused and the application is dismissed.

Hon Tang VP :

32. I agree and I would also refuse leave to appeal.

Hon Barnes J :

33. I also agree.