HKSAR v. DEWI KARTIKA SARI BINTI MUSLI

CACC 101/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 101 OF 2012

(ON APPEAL FROM HCCC NO. 24 OF 2011)

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant pleaded guilty to one count of trafficking in a dangerous drug at Eastern Magistrates’ Court and was committed for sentence to the High Court.  She appeared before Line J on 14 March 2011 and was sentenced on the same day to 9 years imprisonment.  The applicant now seeks leave to appeal against sentence out of time by an application dated 8 March 2012.  In support of her application she has filed an affirmation dated the same date.

Background to the Offence

2.  On 23 July 2010 the applicant arrived at Hong Kong International Airport on a flight from Kuala Lumpur.  She was intercepted by Customs Officers and a search was conducted of her body.  The officers found concealed inside her brassiere and underwear pellets of dangerous drugs.  The officers suspected that there may be further drugs concealed within her body and so sent her to hospital for examination.  Subsequently she discharged a total of 13 pellets of dangerous drugs.  After analysis the Government Chemist confirmed that the drugs she brought into Hong Kong were 486.59 grammes of a mixture containing 289.92 grammes of heroin hydrochloride.

3.  In a record of interview that the Customs Officers subsequently conducted with her, the applicant admitted under caution that she was being paid a sum of US$500 to take the drugs to Guangzhou and that she knew the pellets contained dangerous drugs.  The retail price of these drugs was estimated at HK$383,919.51.

4.  The applicant is a young woman with an extended family back in Malaysia for whom she was providing financial support.  Her employer was encountering financial difficulties and she said she was concerned at her continuing ability to care for the various members of her extended family.  These financial difficulties tempted her into accepting the proposal to transport drugs from Malaysia to China.

The Reasons for Sentence

5.  The quantity of narcotic in which the applicant was trafficking was 289.92 grammes of heroin hydrochloride.  The trial judge correctly recognized that on the Court of Appeal authorities of R v Lau Tak Ming & Ors [1990] 2 HKLR 370and HKSAR v Abdallah [2009] 2 HKLRD 437 this placed her approximately midway in the 200 to 400 grammes sentencing band for which imprisonment in the range of 12 to 15 years is appropriate.  However as this case involved cross-border trafficking, it had an international element to it and on the authority of Abdallah this required the judge to enhance his starting point in order to make allowance for the presence of this aggravating feature.  Abdallah requires an enhancement of at least 2 years where the quantity of drugs is 1 kilogramme or more.  For amounts less than 1 kilogramme the amount of the enhancement is within the judge’s discretion.  Without indicating what his initial starting point was the judge took a starting point after enhancement of thirteen and a half years and then discounted that sentence by one third ending up at a final sentence of 9 years imprisonment.

The Application for an Extension of Time

6.  In the affirmation which the applicant has filed in support of her application for an extension of time in which to appeal against sentence she affirms that at the time of sentence her mind was messed up and confused.  She said that she is now settled in her mind and wants to appeal against her sentence due to her family condition and so that she can be reunited with her family and continue to help them.

7.  Before us today she has supplemented what she has said in her letter to the court.  She has indicated that at the time that she was sentenced she had no knowledge of the law and was unable to determine the merits of her appeal. She said she had no help.  She also feels acutely the fact that she is a foreigner here in Hong Kong and is away from her family.

Discussion

8.  The principles on which this court determines an application for an extension of time in which to appeal were set out in a judgment of this court in R v Wong Kai Kong & Anor [1990] 1 HKC 279.  At pages 280 H - 281 D the court had this to say:

“In considering whether the applicants should be granted the indulgence they seek, it is first necessary for us to consider not only the reasons advanced in the grounding affidavits for the failure timeously to make application but also the period of time which has elapsed between the conviction and the application – here, as we have indicated, ten months – and, generally, the bona fides of the applicants. …

In this exercise, this court should bear in mind that substantial grounds must be shown for the delay before the granting of the indulgence.  The longer the delay, the more onerous is the duty of the person making application and, further, the mere fact that one defendant at trial has successfully appealed is not necessarily a ground for an extension of time in favour of other defendants convicted at the same trial.”

The court also said that in conducting this exercise it was open to the Court of Appeal to look at the grounds of appeal to see if they seem to be impressive and to check that by refusing leave to appeal the court will not shut out a substantial and plainly arguable ground of appeal.

9.  Here the delay is approximately eleven months and this is not an insignificant period of time.  The explanation advanced by the applicant is hardly satisfactory, amounting as it does to nothing more than a statement that she was messed up and confused in her mind.  Though she said that she was unaware of the law she was represented at the sentencing hearing and would have received legal advice in relation to the sentence that she should expect, at that time and after the conclusion of her sentencing hearing.  However we note that she was arrested on 23 July 2010, pleaded guilty in the Magistracy and was committed to sentence to the High Court.  She would have been advised as to the likely sentence she would receive for this offence and in fact the sentence she received was rather generous given the quantity of drugs and the element of international trafficking.  She had, therefore, a period of some eight months to adjust to her predicament and to come to terms with the likely sentence she would ultimately receive.  It is difficult to see in these circumstances how the sentence that she eventually received would have come as any great shock to her or would have so messed up and confused her mind that she could not decide whether to appeal her sentence or what merits there might be in any possible sentence of appeal.  For these reasons, we do not find the explanation of the applicant either credible or sufficiently substantial to warrant this court granting her the indulgence she seeks.

10.  Nevertheless we have considered her sentence to see whether there would be any merit in her application to appeal.  The applicant in fact has not set out any grounds of appeal in her affirmation and has not been able to formulate any before us today.  Essentially her complaint is that she wishes to return to her family so that she can continue to provide support for them and that she is conscious of serving a sentence in Hong Kong as a foreigner.  This is not a basis on which this court could properly reduce her sentence.  Her plea for mercy is one commonly encountered from drug couriers who, more often than not, come from a third world background and are seeking by their drug trafficking to earn money for themselves or their families in order to lessen the poverty in which they live.  But this court has said on many occasions that an impoverished background cannot be a basis for reducing an otherwise appropriate sentence.  Likewise in respect of the fact that a sentence may be harder to endure for a prisoner because that prisoner is a foreigner.  If this court were to accept the fact the foreigners or an impoverished background as a mitigating factor it would only be encouraging further exploitation of persons from such a background by the international drug trafficking syndicates.

Conclusion

11.  Having concluded that the explanation advanced by the applicant is not sufficiently substantial to justify granting her application and having concluded that in refusing the application the court would not be shutting out a meritorious appeal against sentence this court is of the view that the application for an extension of time must be refused and we so order.