HKSAR v. MOTHOSOLA TEBOHO MAX

CACC 437/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 437 OF 2014

(ON APPEAL FROM HCCC NO. 404 OF 2014)

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the court):

1.  On 12 September 2014, the applicant pleaded guilty before Eastern Magistrate’s Court to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, as a result of which he was committed to the High Court for sentence. On 27 November 2014, the applicant was sentenced by P Li J to 18 years’ imprisonment. He now applies for leave to appeal against his sentence.

The facts

2.  At 11:26 am on 7 March 2014, the applicant (a South African national) was on board a private vehicle which was selected for customs clearance at the Shenzhen Bay Control Point.  The passengers were requested to retrieve from the vehicle their own luggage for baggage examination.  The applicant collected a backpack and a suitcase from the vehicle and presented it for examination to customs officers.  A packet containing suspected methamphetamine hydrochloride (commonly known as “Ice”) was then discovered inside a false compartment in the applicant’s backpack, while three further packets of the same drug were found in a false compartment in his suitcase.  The applicant was duly arrested.

3.  Under caution, the applicant admitted that the backpack and suitcase belonged to him but he denied knowledge of the presence of the dangerous drugs.  The total quantity of “Ice” seized amounted to 3.95 kilogrammes of a crystalline solid containing 3.87 kilogrammes of methamphetamine hydrochloride, with an estimated retail value of HK$2,069,800.

4.  During a subsequent video recorded interview, the applicant told customs officers that he was a businessman from South Africa, earning roughly US$2,000 a month, although he has emphasised to us today that the figure fluctuated.  He had come to Hong Kong on 4 March 2014 before travelling on to Guangzhou in the Mainland on the following day.  On 6 March 2014, he had gone to a market in Guangzhou in order to buy a suitcase, his own suitcase having been broken.  He met an African male who told him to come back the following day when he would give the applicant a free backpack if he bought a suitcase from him.  Accordingly, on 7 March 2014, the applicant returned to the market, bought the suitcase from the African male and received a free backpack as promised.  The applicant said he had inspected the backpack and the suitcase and, on finding that they were empty, placed his own belongings in them.  He denied knowledge of the “Ice” hidden in the backpack and the suitcase.

5.  At the hearing before Eastern Magistrate’s Court, however, the applicant admitted and accepted that he had trafficked in the “Ice”, the subject-matter of the charge.  Those admissions and the plea were confirmed before P Li J.

Mitigation

6.  The applicant, who was 30 years of age at the time of his sentence, had a clear record in Hong Kong prior to his conviction for the present charge.  He had been educated in South Africa to high school level and was married with a son aged 2 years.

7.  In mitigation, the judge was told by counsel acting on the applicant’s behalf that prior to his arrest, the applicant had made some seven trips from South Africa to Hong Kong and the Mainland in 2011 for legitimate business purposes.  It was submitted that on this occasion, the applicant had succumbed to temptation and had agreed to bring the “Ice” into Hong Kong, although upon instructions defence counsel declined to say what his reward was.  It was further suggested that it would be a particular hardship for the applicant, as a South African national, to endure a lengthy period in prison away from his family in a foreign country.

Sentence

8.  In sentencing the applicant, the judge adopted an initial starting point of 25 years’ imprisonment for the quantity of narcotic concerned, noting that the guidelines in Attorney-General v Ching Kwok Hung [1991] 2 HKLR 125had suggested a starting point for sentence after trial of 18 years’ imprisonment and upwards for over 600 grammes of methamphetamine hydrochloride narcotic.  He expressly stated that the new guidelines for very large quantities of “Ice”, as set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, were not applicable to the present case, since this offence was committed before the decision in Tam Yi Chun was handed down.  The judge then enhanced the starting point by 2 years’ imprisonment in accordance with the guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437 for the international element involved in bringing the drugs across the border into Hong Kong. Finally, he discounted the resulting figure of 27 years’ imprisonment by one third, resulting in the sentence of 18 years’ imprisonment, which is the subject of this appeal.

The appeal

9.  In his home-made grounds of appeal attached to his Form XI Notice of application for leave to appeal against sentence dated 19 December 2014, the applicant submitted, in essence, that the lengthy sentence passed upon him in Hong Kong would cause considerable difficulties, both physical and mental, to his wife and young son who were wholly dependent on him but living in South Africa.

10.  In his oral remarks this morning, the applicant has referred to a number of cases at first instance or on appeal where a starting point of 24 years’ imprisonment in respect of similar quantities of narcotic have been passed.  He says that 25 years was in those circumstances out of line with other sentences passed or approved on other occasions.

Consideration

11.  We are sympathetic on a human level to the plight of the applicant facing sentence in a foreign place.  However, he plainly knew what he was doing in associating himself with this pernicious trade and in deliberately undertaking the trafficking of an enormous and valuable quantity of dangerous drugs into a foreign country, well knowing the risks he would be running.  His personal circumstances or misfortune cannot in any significant way deter the courts from doing their duty in applying the law firmly and consistently in relation to those who are tempted to traffic in dangerous drugs.

12.  In this case, neither the starting point of 25 years’ imprisonment nor the enhancement of that starting point by 2 years is impeachable.  The quantity of narcotic involved was over six times the quantity at which the guidelines in Ching Kwok Hung run out.  Moreover, the 2 year enhancement of the starting point was entirely appropriate and in line with the guidelines in Abdallah.

13.  While the courts strive for consistency of sentence, particularly in dangerous drugs cases, it must be remembered that every case, every defendant and every set of circumstances is different.  It is a matter for a sentencing judge to decide where, in the applicable range of sentences open to him, the sentence should lie in a particular case.  In our judgment, 25 years’ imprisonment as a starting point for the quantity of dangerous drugs concerned, before consideration of the international element involved, cannot be said to be outside the range properly open to the judge dealing with this particular quantity in this particular case.

14.  In HKSAR v Nkosi Xolile Rose (unrep., CACC 331/2013, 15 December 2014), the authorities pre-Tam Yi Chun were recently and helpfully considered by a differently constituted Court.  In that particular case, a South African national who was transiting in Hong Kong en route between Kenya and Thailand with 3.3 kilogrammes of methamphetamine hydrochloride narcotic hidden in her suitcase, had received a sentence upon her plea of guilty of 17 years and 4 months’ imprisonment from a starting point of 24 years’ imprisonment in respect of the quantity of narcotic concerned, enhanced by a further 2 years for the international element.  The Court, having reviewed a number of similar cases, upheld the sentence as entirely appropriate.  In this case, we are dealing with half a kilogramme of “Ice” more than that which fell to be dealt with in Nkosi Xolile Rose and it is not possible to say that a starting point of 25 years’ imprisonment for 3.87 kilogrammes of “Ice”, duly enhanced by 2 years for the international element, fell outside the sentencing judge’s discretion.

15.  As for the one third discount for plea, that was again entirely appropriate for someone with a previous clear record in Hong Kong who had pleaded guilty at the first available opportunity to an extremely serious offence such as this.  There was no justification for any further reduction.

Conclusion

16.  The application for leave to appeal against sentence must therefore be refused.