ATTORNEY GENERAL v. PEDRO NEL ROJAS

Headnote

Sentence: trafficking in cocaine: tariffs in R. v. Lau Tak Ming [1990] HKLR 370 apply: foreign accused: consider but no to "any substantial degree": headnote in R. v. Shipra [1988] HKLR 493 explained.

IN THE COURT OF APPEAL

1993, No.15
(Application for Review)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Pedro Nel Rojas appeared for trial before His Honour Judge Wesley Wong, sitting as a Deputy Judge of the High Court, upon an indictment containing two counts. The first was that of trafficking in a dangerous drug and its particulars alleged that he, on 25th February 1993, at Kai Tak Airport unlawfully trafficked in a dangerous drug, namely 2,353.75 grammes of a mixture containing 1,771.58 grammes of cocaine hydrochloride. The second count was that of using a false travel document and its particulars alleged that on the same day on his arrival at Kai Tak Airport, he used a false travel document namely a Venezuelan passport which was in the name of Dario.

3. On the first day of the trial he pleaded not guilty to the trafficking count but guilty to the false travel document count. There was then a gap and on the second day of the trial, the applicant entered a plea of guilty to the trafficking count. He was sentenced to a period of 7 years' imprisonment upon the trafficking count and 4 months' imprisonment in respect of the passport count, those sentences to run concurrently.

4. The Attorney General, having been given leave on 7th December 1993 to do so, now applies to this court under the provisions of section 81A of the Criminal Procedure Ordinance to ask this court to review the sentence upon the trafficking count - we are not concerned with the sentence upon the false document count - on the basis that that sentence is both inadequate and/or wrong in principle.

5. The basic facts were that the respondent arrived on 25th February at Kai Tai from Brazil. Customs officers suspected the passport he was carrying was false. The matter was referred to Immigration. This led to a search of the respondent's luggage. That luggage was found to have a false compartment and in that false compartment were 18 packets of dangerous drugs in the quantity set out in the particulars of the count. The photograph on the passport was found to be a substituted one and the respondent admitted that it did not belong to him.

6. As he said at that time, and repeated in mitigation, the respondent stated that he had been given these drugs in Brazil for the purpose of taking them to Japan. He was also supplied with the passport. He had been in financial difficulties and it was for this reason that he agreed to take these items to Japan.

7. When the trial judge came to pass his sentence, he accepted the submissions made to him that he should follow the guidelines laid down in R v. Lau Tak Ming [1990] 2 HKLR 370. He then made reference to a starting point of at least 15 years. He thought there were, in this present case, circumstances which would justify him in adopting a lower starting point than that of 15 years. He instanced those as being first: that the respondent was in transit and the drugs were not intended for local consumption; second: that the prevalence of cocaine was did not justify a deterrent sentence; third: that the effect of cocaine was not as harmful as heroin misreading, with respect to him, that which Cons J.A. (as he then was) said in Attorney General v. Leung Pang Chiu [1986] HKLR 608. He then for these reasons adopted a starting point of 12 years.

8. The first issue that lies for our consideration is whether the judge was right in taking the guidelines set out in Lau Tak Ming as the basis for his sentence. It is the contention of Mr. Saw, who appears in this court for the Crown, that this was a correct appreciation of the issue of sentence. He referred us, first, to Leung Pan Chiu wherein it was held that cocaine is a hard drug.. There is no issue on this. It, quite clearly and manifestly, is a hard drug. Leung Pan Chiu then went on to suggest that the guidelines laid down in R. v. Chan Chi Ming [1979] HKLR 491- relevant to heroin - should be followed relating to possession of cocaine for trafficking.

9. Chan Chi Ming itself was considered in Lau Tak Ming and its guidelines were altered by Lau Tak Ming; the court stating that it was time that Chan Chi Ming was retired.

10. We note that it The Attorney General v. Ching Kwok Hung [1991] 2 HKLR 125 where the court was considering methylamphetamine hydrochloride, or ICE, and this for the first time, did issue guidelines in relation to sentences for possession of that particular dangerous drugs for the purpose of unlawful trafficking. The court, at page 130D, referred to the difficulties as to whether the tariffs in Chan Chi Ming or Lau Tak Ming should be applied to ICE and had thought that the best course was to consider the guidelines inLau Tak Ming and to adapt them to the quantum of sentence which it thought to be appropriate for ICE bearing in mind the evidence which was provided to that court in relation to the use and abuse of ICE.

11. There was of course evidence before the court in Leung Pang Chiu as to the characteristics and use of cocaine.

12. Mr. Chan who appears for the respondent in this court urges us to confine ourselves to the tariffs set out in Chan Chi Ming on the basis that Leung Pang Chiu has never been reconsidered and that its statement that the guidelines in Chan Chi Ming should be followed has not been altered. We accept that Lau Tak Ming was generally considering that narcotic content of heroin and we accept that the main issues there related to the contents of a No.3 or a No.4 heroin mixture and the avoidance of the conversion which had been necessary up to the time of Lau Tak Ming. But, clearly, cocaine and heroin are very closely alike in their degree of harm. As Cons JA (as he then was) said at page 611 of Leung Pang Chiu:

"We have no hesitation in assigning cocaine to the upper of hand end of the scale."

13. In our judgment, the trial judge was correct in his assumption that the guidelines in Lau Tak Ming should be applicable. He was, however, and with respect, wrong in taking "at least 15 years" as his starting point. This quantity of cocaine here fell into the "very substantial quantities" referred to in Lau Tak Ming attracting a starting point sentence of 20 years or more.

14. We view the proper starting point here could well have been in excess of 20 years. With respect to the trial judge, the fact that the respondent did not intend to spread the drugs in Hong Kong was irrelevant. To consider as mitigation that they were not intended for local consumption is to ignore the international aspect of the drug trafficking trade. That is a factor which very much should be in the minds of sentencing judges. Further, in hard drug cases the element of deterrence in the quantum of the sentence always plays a large part. Again, as Cons JA said in Leung Pang Chiu, and this we would emphasise was in 1986, at letter G at page 611:-

"Cocaine has made a start in this territory, appropriate sentences are necessary to nip the process in the bud."

We have no hesitation saying that "appropriate sentences" means deterrent sentences.

15. The judge's reference to it being said in Leung Pang Chiu that the drug itself is less addictive than heroin relates to a passage in Leung Pang Chiu wherein it was said:

"We note also that apparently in England 'there seems to be a tendency to equate cocaine with heroin for sentencing purposes, although the drug itself is less addictive'."

This does not derogate from the passage earlier quoted from Cons JA that cocaine and heroin are to be equated for sentencing purposes.

16. The major aspect of mitigation here was the plea of guilty, admittedly made inside the door of the court. A further factor which a trial court is entitled to take into consideration also exists here in that the respondent will be isolated while in prison custody. He speaks no English nor any of the Chinese dialects and that would undoubtedly bear hard upon him. In R. v. Shipra [1988] 2 HKLR 493, the headnote reads:

"Where a person comes to Hong Kong in order to commit a crime, the fact that a term of imprisonment might bear more harshly on that person, compared with a local person, was not a material factor to be borne in mind by the courts in passing sentence."

Reference was made to that headnote in R. v. Venatius Okoye, Criminal Appeal No. 405 of 1990 where it was said at page 3:

"It was also suggested that because the applicant is a foreigner some discount should be given because he will not be able to receive visits from friends or relatives while he is in custody in Hong Kong However we have now been referred to R. v. Shipra Crim.App.No. 627 of 1987, which says that is not to be considered as a factor in mitigation and that ground has been abandoned."

17. In the light of passage which are contained in Shipra, the headnote may be considered as misleading for the court in Shipra stated it preferred the approach which had been taken in R. v. Garry La Verne Ohmert, Criminal Appeal No. 213 of 1985 to that which was said by the court in R. v. Kumar, Criminal Appeal No. 179 of 1980. In Ohmert it was stated that:

"While it is quite right to say that anybody caught in somebody else's country and not speaking the local language will find prison a more disagreeable experience than would otherwise be the case that in general is not a circumstance which the court will take into account in mitigation to any substantial degree." (emphasis supplied)

18. In this case, the judge allowed a specific discount of one year for what we might term generally "the foreigness" of the respondent. We do not consider that a specific discount should be given for this aspect of mitigation but we do endorse the course adopted in Shipra, which was commended to judges when faced with problems of this kind in the future, that while it is a factor to be taken into consideration, it is not one which would affect sentence to any substantial degree. This is something to be considered in determining the totality of the sentence.

19. That have been said, what would have been the proper sentence here? Allowing for the factors of mitigation, that is the plea and considering the "foreigners", we consider that a sentence of 15 years would have been appropriate. We are conscious of the fact that the sentence imposed upon the respondent is being very substantially increased by this court in these Review proceedings and we therefore considered that there should be a further discount because of that. While we have indicated that 15 years would have been the appropriate sentence in this case, the sentence we shall impose is one of 14 years' imprisonment.

20. The Attorney General's application is granted as indicated.