HKSAR v. ALWI TJONG

CACC 339/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 339 OF 2008

(ON APPEAL FROM HCCC NO. 243 of 2007)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.  The applicant, an Indonesian, was charged with two other Indonesians (D1 and D3 respectively) with trafficking in a crystalline sold containing 2,891.63 grammes of methamphetamine hydrochloride (‘ice’).  He pleaded guilty before Deputy High Court Judge Geiser on 1 February 2008 and was sentenced on the same day to 14 years’ imprisonment.  The applicant now, many months out of time, seeks leave to appeal on what he describes as ‘humanitarian grounds’.

2.  The facts were straightforward.  The applicant was intercepted on 13 May 2007 at Hong Kong International Airport just before his departure on a flight to Jakarta.  He was body-searched and found to be wearing a belt round his waist with two bags of drugs hidden inside.  The combined weight of the two bags of ice found on him was 961.06 grammes.  Two other passengers travelling with him (D1 and D3) were similarly found to be carrying ice in their waist belts, each carrying a similar quantity to the applicant.  The applicant (D2 in the court below), admitted in interview later that he was to be rewarded after successful delivery of the drugs by a payment of RMB 20,000 Yuan.  He admitted helping the others who were with him to strap the drugs to their waists.  They had, in fact, all helped each other in this regard.

3.  The value of the drugs being trafficked by the applicant and his two accomplices was estimated to be about $1,262,464.

4.  When sentencing, the judge observed that the three defendants, all of whom pleaded guilty, had arrived in Hong Kong on the same flight from Jakarta on 10 May 2007 and had gone straight to Shenzhen.  There, having collected the drugs, they came back to Hong Kong in the early hours of 13 May 2007, through the Immigration Control Point at Lok Ma Chau and went straight from there to the airport.  The judge stated that D2 was 55 years old and that D1 and D3 were 57 and 42, respectively, and that each of them came from a very poor background.  The temptation of a large monetary reward had, the judge rightly said, ruined their lives.

5.  There was a further observation of the judge which, with respect, he should not have made.  This was a joint enterprise drug trafficking expedition of a very obvious kind and, in every sense, the applicant and his co-defendants should have been dealt with on that basis.  Instead, the judge said:

“In the present case, this court is dealing with 2,891 grammes of narcotic. From a review of the authorities, I would have considered a starting point of 24 years' imprisonment to be appropriate. However, whilst this was undoubtedly a joint enterprise between the three defendants, I propose to take the slightly lower starting point of 21 years' imprisonment to reflect the amount of drugs that each defendant was actually carrying. I will discount this by one-third to take account of the defendants' pleas of guilty, arriving at a sentence of 14 years' imprisonment in relation to each defendant.”

6.  As a result of this erroneous approach, the applicant was treated more leniently than he should have been.  This was one of those cases where trafficking across international borders provided an aggravating factor for sentencing purposes.  Furthermore, as a joint offence involving three participants, it was a particularly grave case of international drug smuggling.  The applicant had to be dealt with for trafficking in 2.891 kilogrammes of ice.  He pleaded guilty to this and the evidence that his involvement extended to this quantity was overwhelming.  It was wholly inappropriate to deal with the applicant on the basis that his culpability extended only to the ice found on his body.

7.  The imposition of a sentence such as this, which fails to recognize well-established guidelines, understandably gives rise to very considerable disquiet on the part of others who have received proper sentences in accordance with the guidelines as it gives rise to an appearance of unfair treatment and perceived disparity.  It also undermines confidence in the system.  A starting point of 21 years’ imprisonment for an international drug smuggling offence involving just over 2.89 kilogrammes of ice does not sit at all comfortably with other sentences for similar crimes.

8.  The grounds of appeal, which relate to the applicant’s apparently difficult home circumstances, are not matters which can carry any weight in an offence of this kind.  Indeed, as we have indicated, the applicant has already been the beneficiary of a sentencing error in approach which has resulted in him receiving a considerably shorter sentence than he deserved.

9.  This application is dismissed.