HKSAR v. GARCIA PALACIOS MARCO ANTONIO

CACC 154/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 154 OF 2007

(ON APPEAL FROM HCCC 252 of 2006)

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Background

1.  On 15 August 2006, the applicant, Garcia Palacios Marco Antonio – a Peruvian, arrived at the Hong Kong International Airport from Buenos Aires via Kuala Lumpar, and was intercepted and detained by Customs and Exercise Officers. He subsequently excreted at the Queen Elizabeth Hospital 161 pellets weighing just over 1,072 grams of a mixture containing 857.37 grams of cocaine with an estimate market value of about $933,000.

2.  The applicant subsequently pleaded guilty to a charge of trafficking in the cocaine and was brought before Deputy Judge Toh in the High Court for sentence on 23 April 2007.

3.  The judge adopted a starting point of 25 years and reduced it by one-third, on account of the guilty plea, to 16 years and 8 months.

4.  The applicant, on the basis that the starting point adopted by the judge is manifestly excessive, now applies for leave to appeal against sentence.

5.  The judge, when sentencing, referred to HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 and emphasized the seriousness of non Hong Kong residents importing dangerous drugs into Hong Kong, and explained why such non resident status afforded no mitigation.

Grounds of Appeal

6.  The earlier suggestion that the applicant was not aware of the true nature of the drugs, a suggestion rejected by the judge, is no longer pursued. Indeed the only issue before us is whether the starting point adopted by the judge is manifestly excessive.

7.  The applicant, acting in person, argues that the starting point of 25 years adopted by the judge is manifestly excessive. He referred to R v Yip Kee Chun CACC 91/1994, R v Szeto Tsz Kwong CACC 798/1995 and HKSAR Yau Po-hung CACC 245/1998, all drug trafficking cases involving 3,799 grams of salts of esters of morphine, 10,400 grams of salts of esters of morphine and 3,050 grams of heroin hydrochloride, when the Court of Appeal adopted the respective starting points of 21 years, 25 years and 24 years (not 25 years as suggested by the applicant).

8.  The applicant emphasizes that in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, a case also involving a South American bringing into Hong Kong 1,770 grams of cocaine, a 15 years’ imprisonment was considered appropriate by the Court of Appeal, suggesting a proper starting point of only just over 22 years.

9.  The applicant suggests in his written grounds that if a 25 year-starting point is appropriate when only 857 grams of cocaine is involved, there will be very little room to manoeuvre in cases involving 5, 10 or 20 times more narcotics.

10.  The applicant also tells us that he regrets what he did and apologises for it. He says his sentence is longer than those in other similar cases.

The Respondent’s Position

11.  Ms Mary Sin, for the respondent, points out that the cases referred to by the applicant, with the exception of Pedro Nel Rojas (supra), do not involve a foreign element and that Pedro Nel Rojas’s case was decided 14 years ago.

12.  Ms Sin suggests that a foreign element is an aggravating factor and that the Court’s attitude have also been hardened since the decision in Pedro Nel Rojas (supra). In support of her contention, Ms Sin refers to HKSAR v Tse Sun-wong CACC 188/2001, involving 985 grams of heroin hydrochloride, when the Court of Appeal, on reducing the starting point of 25 years to 22 years, mentioned, “In the instant case, there is no evidence that any foreign or manufacturing element was involved.”

13.  Ms Sin refers to R v Ho Chi-ming [1995] 2 HKCLR 29 and HKSAR v Leang Sze-keong CACC 566/1997, involving respectively 1,200 grams of salts of esters of morphine and 890 grams of heroin hydrochloride, when the Court of Appeal regarded a 25-year starting point appropriate as both cases involved a foreign element.

14.  Ms Sin suggests that the 25-year starting point adopted by the judge is therefore not manifestly excessive.

Discussion

15.  As decided in Pedro Nel Rojas (supra), heroin and cocaine are very closely alike in their degree of harm, and trafficking in heroin and cocaine should therefore attract similar sentence tariffs as laid down in R v Lau Tak Ming [1990] 2 HKLR 370.

16.  Amounts of over 600 grams of narcotics, be it heroin or cocaine, fall into the “very large quantities” category and there should be an upward increase in the “cut off sentence” of 20 years suggested in R v Cheng Yeung [1989] 2 HKLR 258, bearing in mind that the maximum sentence provided for by the legislation is life. [See the judgment of Silke VP in Lau Tak Ming (supra)]

17.  In AG v Ching Kwok-hung [1991] 2 HKLR 125, Silke VP further elaborated, “By upwards we mean, as was indicated in Lau Tak-ming, beyond any cut off sentence, but bearing in mind the dangers of a mathematical progression causing injustice”.

18.  Mathematical progression can cause injustice. However, in our view, there should still be a logical connection between the quantity of drugs involved and the starting point. After all, the quantity of drugs involved in any drug trafficking case is still, under our established guidelines, the most significant factor on sentence.

19.  The applicant was involved in about 850 grams of cocaine, (250 grams above 600 grams), which calls for an upward adjustment from the “cut off sentence” of 20 years.

20.  The judge increased the “cut off sentence” by 5 years, a significant increase of 25%.

21.  Whilst we agree that the “foreign element” is an aggravating factor, the 25% increase might leave little room for distinguishing this from other cases involving perhaps 2,000 grams or 3,000 grams of narcotics. Indeed the starting point adopted in Pedro Nel Rojas (supra), a case involving over 1,500 grams of cocaine, was just over 22 years.

22.  We are persuaded that the 25-year starting point adopted by the judge is manifestly excessive and that a starting point of just over 22 years would be adequate to reflect the gravity of the offence committed by the applicant, even taking into consideration the aggravating feature of the “foreign element”. There should be a one-third discount on account of the applicant’s guilty plea.

23.  We are of the view that the proper sentence for the applicant should be 15 years’ imprisonment.

24.  We therefore grant leave to the applicant to appeal against sentence. Treating the application as the appeal proper, we allow the appeal and reduce the sentence to 15 years’ imprisonment.