HKSAR v. BUNLOUN JANTAKARN

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and

CACC 466/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 466 OF 2007

(ON APPEAL FROM HCCC NO. 258 of 2007)

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J U D G M E N T

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

Background

1.  We will deal with the applications for leave to appeal against sentence by Bunloun Jantakarn (D) in CACC 397/2007 and by Phaenthong Kanokwan (D1) and Piroonnetr Wayuree (D2) in CACC 466/2007 together as the points which arise in each of the applications are the same.

CACC 397/2007

2.  On 31 August 2007, D pleaded guilty in the Magistrates’ Court to a charge of trafficking in 425.86 grammes of a mixture containing 351.52 grammes of heroin hydrochloride.  Saw J took a starting point of 14½ years’ imprisonment when the applicant appeared in the High Court on 31 October 2007 and sentenced her to 9 years and 8 months’ imprisonment after giving a one-third discount for her guilty plea.

3.  D brought the heroin into Hong Kong from Bangkok.  After her arrival on an Emirates flight, she was detained in the Customs Hall.  A body search revealed the drugs which were hidden in her underwear.  The heroin had a street value of about $234,000.  D admitted in an interview later that she did this because she had been promised a reward of US$1,500.

CACC 466/2007

4.  When D1 and D2 appeared in the Magistrates’ Court on 26 October 2007, they each pleaded guilty to a charge of trafficking in heroin hydrochloride.  The heroin had a narcotic content in each case, respectively, of 238.16 grammes (valued at $173,464) and 424.87 grammes (valued at $306,370).  When they appeared before McMahon J on 11 December 2007, a 13-year starting point was taken in respect of D1 which was then reduced to a sentence of 8 years and 8 months to reflect her plea of guilty.  For D2, a starting point of 16 years’ imprisonment was adopted which, after the usual one-third discount for her plea, was reduced to a sentence of 10 years and 8 months’ imprisonment.

5.  D1 and D2 had brought the heroin into Hong Kong by means of a flight from Delhi.  They were stopped in the Customs Hall.  They were found to be carrying the drugs in condoms which were secreted inside their bodies.  In subsequent interviews, they both admitted that the Mainland was intended to be the ultimate destination for the heroin.

The applications

6.  In their homemade grounds of appeal, the three applicants each complained that their sentences were excessive when viewed in comparison with the sentences imposed in certain other cases which they identified by reference to the names of the defendants concerned in those other cases.  In this regard, the applicants, all of whom are Thai nationals, named five other defendants from Thailand who, they submitted, had been dealt with more leniently in the Court of First Instance than themselves.  The five others are presently awaiting a hearing in this court for their applications for leave to appeal against sentence.  They are Arphornwit Napassorn (HCCC 194/2007 and CACC 89/2008 to be heard on 17 December 2008); Somphaksorn Lamyai and Sayamitra Narumol (HCCC 205/2007 and CACC 88/2008 to be heard on 17.12.08); Meelerd Wasana (HCCC 233/2007 and CACC 87/2008 to be heard on 17.12.08); and Lertsrida Wanida (HCCC 240/2007 and CACC 234/2008, which has no fixed hearing date yet).

7.  We are grateful to Mr William Tam, for the respondent, for his preparation of a detailed submission covering the facts of the cases the applicants have identified.  This has enabled us to make a proper assessment of the situation.

8.  We recognise that whilst disparity in sentence with unrelated cases will rarely amount to a proper foundation for a successful appeal, there can at the same time be no doubt that a defendant who is serving an appreciably longer sentence than someone else for much the same offence, in terms of its type and gravity, will not unnaturally feel disturbed by what has happened.  In such circumstances, if this court is able to find the reason for what has occurred, we consider that at the very least this should be identified so that any feelings of grievance will be eased.  This may, as we have found in this case, be explained by sentencing mistakes on the part of judges from which other prisoners have benefited.

HCCC 194/2007

9.  Taking first HCCC 194/2007, and adopting in large measure Mr Tam’s helpful written submissions for the background in that case as well as the remaining cases referred to by the applicants, Arphornwit Napassorn was charged in the 1^st count with trafficking in 122.23 grammes of a mixture containing 85 grammes of heroin hydrochloride (concealed in her body) and in the 2^nd count with trafficking in 506.54 grammes of a mixture containing 364.46 grammes of heroin hydrochloride (concealed in her shoes).

10.  On 17 October 2007, Beeson J set out the facts in HCCC 194/2007 and sentenced the defendant as follows:

“The facts, which the defendant admitted on the day of committal and which she has confirmed today, showed that she arrived from Delhi in Hong Kong for Customs clearance. Her baggage was searched, but nothing was found. However, a personal search revealed four pellets of dangerous drugs protruding from her vagina. She admitted that those objects were drugs and she said she used them for herself.

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

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

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

The value of the drugs at that time was $290,201 ……

The only mitigation in this case is the plea of guilty, which I accept was an early plea, and so the [defendant] is entitled to the full third.

In respect of the 1^st charge, I take a starting point of 8 to 12 years, and with the full discount from a starting point of 8, I sentence her to 5 years and 3 months’ imprisonment.

In respect of the 2^nd charge, I take a starting point of 12 years and sentence her to 8 years’ imprisonment. I order that both those sentences be concurrent.”

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 Anor [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 pleas of guilty, a sentence of 10 years and 10 months in total should normally have been imposed.

12.  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 applicants 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.

HCCC 205/2007

13.  In the second case (HCCC 205/2007), two accused were indicted.  Somphaksorn Lamyai (D1) was charged with trafficking in 259.03 grammes of a mixture containing 184.05 grammes of heroin hydrochloride.  Her co-defendant, Sayamitra Narumol (D2), was charged in a second count with trafficking in 543.22 grammes of a mixture containing 365.54 grammes of heroin hydrochloride.

14.  On 2 November 2007, Somphaksorn Lamyai (D1) and Sayamitra Narumol (D2) pleaded guilty before Deputy High Court Judge Line who made the following observations when sentencing:

“I have to sentence both of you for drug trafficking. You are both in your late 30s and natives of Thailand and it was there you were recruited to carry heroin from India into Hong Kong, with the intended destination being Mainland China.

You acted together, you travelled together and you both inserted into your bodies amounts of heroin. The fact is, and I am told so by both counsel, that the disparity in the amounts is explained by your physical capacity of how much you could carry. You, the 1^st defendant, carried 184 grammes of the heroin in 259 grammes of mixture, and you, the 2^nd defendant, carried a mixture of 543 grammes containing 365 grammes of heroin hydrochloride.

You will have been told that the way we deal with drug trafficking here is to take a starting point for a sentence that is based on the amount of drugs. So it is really a matter of chance, given the history I have related, that you, the 1^st defendant, fall into the category of 8 to 12 years’ imprisonment for a starting point and you, the 2^nd defendant, into the 12 to 15 year category, when really, in moral terms, there is little to choose between you ……

You will appreciate, as you have heard your counsel in each case say, that whilst the guidelines are not straitjackets, there is little room for me for great manoeuvre when it comes to fixing the length of your sentences and the courts have to look for some consistency when it comes to sentencing drug traffickers.

In your case, D1, I am going to take a starting point of 10 years’ imprisonment. That acknowledges the mitigation I have heard and balances it against the aggravation that exits in each of your cases of importing the drugs. You earn a one-third discount by reason of your plea of guilty.

The sentence in your case is one of 6 years and 8 months’ imprisonment.

As regards you, D2, I regard the particular circumstances that existed here of the chance of capacity deciding how the quantity was divided does allow me initially to start at the bottom end of the bracket in which you fall. That bottom end would mean a starting point of 12 years’ imprisonment and, after the discount for the plea of guilty, a sentence of 8 years.

I feel that, in the circumstances, fairness narrows the distance in sentence between you. In narrowing the gap, it would be wrong for me to increase the 1^st defendant’s sentence. I do not do that. It means that the 2^nd defendant perhaps is lucky in having her starting point diminished. …

In all of those circumstances - and I do not pretend it is all science, there is a measure of feel to the matter - I am going to sentence you to 7½ years’ imprisonment.”

15.  Sayamitra Narumol (D2) had trafficked in 365.54 grammes of heroin.  According to the guidelines in Lau Tak-ming, a starting point of about 14½ years would have been appropriate in her case.  However, the judge adopted a starting point of only 12 years because of what he perceived to be the “chance” element which had resulted in Sayamitra Narumol (D2) having more heroin in her possession than Somphaksorn Lamyai (D1).  It is thus clear, in relation to Sayamitra Narumol (D2), that the judge deliberately departed from the appropriate sentencing tariff as set out in Lau Tak-ming, stating in terms that she should consider herself “lucky” in having the starting point diminished.

16.  There are good reasons for the guidelines in Lau Tak-ming being adhered to or, as the present case graphically illustrates, it is likely to give rise to the complaint that couriers carrying similar quantities of heroin are not being treated equally.  In the present case, it has left D2 wondering why she was not dealt with in the same manner as Sayamitra Narumol (D2) in HCCC 205/2007.  Of course she has a point in that in her case, also, it was a “matter of chance”, to adopt the judge’s expression, that she carried more than D1.  There is, however, a much wider picture to be considered.  In order to provide a fair and balanced approach to all drug traffickers, it is obviously important that the guidelines are applied fairly rigidly unless there is a solid foundation for reducing the sentence which, on rare occasions, may arise such as when material cooperation with the authorities has been given.

17.  Almost every trafficker who acts as a courier will take what he or she is given, unaware when doing so of the precise weight of the narcotic or active ingredient in the mixture.  In this sense, it is mostly a matter of chance which leads one trafficker to be in a higher bracket for sentencing purposes than another when the tariff is always dependent on the narcotic weight being carried, a factor over which the trafficker will seldom have any control.  On the face of it, the benefit given to Sayamitra Narumol (D2) was the result of a sentencing error in principle.

18.  In regard to Somphaksorn Lamyai (D1), we observe in passing that a starting point of 11 years would have been more strictly in accordance with the guidelines than the 10-year starting point adopted by the judge.

HCCC 233/2007

19.  In the third case (HCCC 233/2007) referred to us by the applicants, Meelerd Wasana pleaded guilty to a count of trafficking in 635.99 grammes of a mixture containing 326.77 grammes of heroin hydrochloride.

20.  On 9 November 2007, Saw J said as follows:

“... She has today come before me to be sentenced and has maintained that plea of guilty and has accepted the Summary of Facts.

That Summary of Facts reveals an all-too-familiar scenario. On 21 March 2007, the defendant arrived in Hong Kong at the International Airport on a Cathay Pacific Flight from Delhi. She was detained by Customs Officers for the purposes of inspecting her luggage and that inspection revealed no contraband but as is not uncommon, she was required to undertake a personal search. That personal search revealed that secreted in the defendant’s vagina, was a white oval-shaped object. Once it had been determined that there was something hidden there, she was removed to the Queen Elizabeth Hospital in the secure ward there for further examination. Customs Officers at the time suspected that she may have secreted elsewhere further contraband. Those suspicions proved to be correct.

In the fullness of time, she excreted some 58 pellets. Ultimately, those pellets, together with the contents of the condom which was found in her vagina, were examined by the Government Chemist. That examination revealed that the total quantity of dangerous drugs which is the subject of this charge was 635.99 grammes of a mixture containing 326.77 grammes of heroin hydrochloride. That, by any count, is a very substantial amount of drugs.

At the outset, I said that the scenario is all too familiar and it certainly appears to be the case that this is no exception. I’m told - and the defendant had told the Customs Officers - that the reason that she brought the drugs to Hong Kong was that she would be paid 20,000 baht upon delivering those from Hong Kong to Guangzhou ……

… the correct starting-point for this quantity of heroin hydrochloride is 13 years and 10 months’ imprisonment. The defendant is entitled, as a matter of course, to a reduction of one-third from that for her timeous plea of guilty. I have taken into account all the matters put on her behalf including her own representations which have been written by her and provided to me. Nevertheless, there is nothing in the matters of her own circumstances that would permit me to grant to her any reduction beyond the one-third from the starting-point. Her personal circumstances are all too familiar in cases of this nature, but it is clear from the authorities that those are not such as would entitle her to a reduction beyond that of one-third.

That being the case, from a starting-point of 13 years and 10 months, the one-third reduction would bring about a sentence of 8 years and 8 months’ imprisonment. That is the sentence I pass upon the defendant and she is so sentenced.”

21.  Again, as Mr Tam has very properly conceded, the sentencing in that case appears to have gone awry.  Whilst the starting point of 13 years and 10 months was appropriate for 326.77 grammes of heroin, and in line with the guideline tariff set out in Lau Tak-ming, a one-third discount resulting in a sentence of 8 years and 8 months can only have been arrived at from a starting point of 13 years’ imprisonment.  Here, the starting point was 13 years and 10 months so that the sentence ought to have been 9 years and 2 months.

22.  It follows, therefore, that the defendant in HCCC 233/2007 received what, on the face of it, was a windfall in terms of an undeserved reduction in sentence, this time as the result of an apparent miscalculation on the part of the judge. 

HCCC 240/2007

23.  In the last of the four cases (HCCC 240/2007) cited by the applicants, Lertsrida Wanida pleaded guilty to trafficking in 398.66 grammes of a mixture containing 255.30 grammes of heroin hydrochloride.

24.  On 14 November 2007, Saw J used a starting point of 12 years and 9 months and, after giving her the usual one-third discount, sentenced her to imprisonment for 8 years and 6 months’ imprisonment.  This closely matched the position of D1 in the present case, and it also accorded with the Lau Tak-ming guidelines.  No criticism of this sentence can be made.

The disparity issue

25.  The applicants have succeeded in demonstrating that four other defendants, in three of the cases to which they referred us, were sentenced on a basis which gave rise to a greater degree of leniency than is indicated by the guidelines in Lau Tak-ming.  This being said, an obvious mistake was made in each case.

26.  In the first case (HCCC 194/2007) a wholly concurrent sentence was made when a partially consecutive sentence was called for; in the second case (HCCC 205/2007), the reduction in sentence for Sayamitra Narumol represented a material departure from the Lau Tak-ming guidelines for a reason which had no validity and the sentence of Somphaksorn Lamyai was also out of step with the guideline tariffs in a less obvious way; and in the third case (HCCC 233/2007), a miscalculation in the discount was made.

27.  We are concerned in the present case with the propriety of the sentences imposed on the applicants in the sense that if any sentence passed on any of the applicants was manifestly excessive or was wrong in principle, this must now be remedied.  This can only be judged by reference to the guidelines in Lau Tak-ming.  These provide as follows:

“(a)    Up to 10 grammes of narcotic : 2 to 5 years imprisonment.

(b)  Between 10 grammes and 50 grammes : 5 to 8 years.

(c)   Between 50 grammes and 200 grammes : 8 to 12 years.

(d)  Between 200 grammes and 400 grammes : 12 to 15 years.

(e)   Between 400 grammes and 600 grammes : 15 to 20 years.”

It is immediately apparent in each of the cases now before us that these guidelines were meticulously applied.

28.  There is no proper basis on which we could interfere with the sentences in this case.  The fact that fundamental errors were made in other similar cases provides no reason at all for reducing these sentences.  There is a well-known saying that ‘two wrongs do not make a right’ and it is one which has long been applied in the courts when confronted with situations of this kind.  This is just another way of saying that where a perfectly correct sentence has been imposed, the Court of Appeal will not reduce it merely because someone else, in a similar situation in another case, has received an inappropriately light sentence.  That would be to reduce the correct level of sentence to a level which does not conform with the guidelines in Lau Tak-ming.

29.  Mr Tam brought to our notice two helpful authorities on this topic.  In HKSAR v Leung Yiu-ming and Anor [2000] 1 HKLRD 247 at 249, Nazareth VP stated:

“3. Miss Denise Chan, who appears for the respondent, the Hong Kong SAR, confronts the applicants’ ground head on. She submits, and we accept, that in its judgment which binds us, this Court in R v So Hung Lee and Another [1986] HKLR 1049; 1052 after addressing previous inconsistent decisions held that two relevant situations can arise. The first is where there is a disparity between sentences passed on the same occasion by the same judge, in which case the sentence should be varied by this Court but only if it can be shown that the judge has not properly apportioned the blame between the accused persons. That is not the case here. The second situation is when different sentences are passed on different accused for the same offences by different judges on different occasions. In such a case, the court held that the only consideration must be whether the sentence passed on the appellant or applicant was appropriate, following the approach of Roskill LJ (as he then was) in R v Stroud (1977) 65 Cr App R 150; 152. In the case of the applicants here, it can plainly be seen that although they fit within the second situation, the sentences imposed by Gall J are well within the relevant guidelines that are to be found in R v Lau Tak Ming [1990] 2 HKLR 370. However, it can be seen from p.154 of Stroud that what it restated was in the nature of a general principle that would apply save in the ‘most exceptional circumstances’ … ”

30.  In the second case, HKSAR v Chow Tak-fuk CACC 428/2004, Stock JA made this clear:

“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 extraordinarily 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.”

31.  In the present case, as the sentences were strictly in accordance with the Lau Tak-ming guidelines, the applicants have no justified cause of complaint.  It would plainly not be appropriate to interfere with any of these sentences just because judges in other cases have made errors which have benefited a number of defendants who had no rightful claim to the reduced sentences they received.

Conclusion

32.  Accordingly, while we will give all of the applicants before us leave to appeal, treating the hearing as the hearing of their appeals in CACC 397/2007 and in CACC 466/2007, these appeals are dismissed.