HKSAR v. Masham Deborah James

CACC 381/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 381 OF 2015

(ON APPEAL FROM HCCC NO. 264 OF 2011)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.The applicant faced one charge of unlawfully trafficking in a dangerous drug, namely a total of 1,499.17 grammes of a mixture containing 394.67 grammes of heroin hydrochloride and 122.19 grammes of monoacetylmorphine hydrochloride (“MAM”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She pleaded guilty to the charge before a magistrate on 15 July 2011, on which day she was also committed to the High Court for sentence. On 16 January 2012, the applicant was sentenced by McWalters J (as he then was) to 11 years’ imprisonment.

2.On 2 November 2015, the applicant filed a Notice of application for leave to appeal against her sentence, by which time she was more than 3 years and 8 months out of time.

3.On 29 April 2016, we refused the applicant leave to appeal against sentence out of time and said we would give reasons for our decision in due course.  These are our reasons.

The facts

4.On 12 January 2011, the applicant was intercepted at Customs Arrival Hall B of Hong Kong International Airport, having arrived from Tanzania via Dubai.  Nothing was found upon examination of her luggage, but a search of her body revealed 11 pellets of suspected dangerous drugs hidden in the applicant’s underwear.  Having been arrested and cautioned, the applicant was taken to Queen Elizabeth Hospital where, between 12 and 16 January 2011, she discharged from her body a further 89 pellets of dangerous drugs on 16 occasions.

5.Under caution, the applicant admitted that she had brought the dangerous drugs found in her underwear into Hong Kong for money.  In a further record of interview taken on the night of 13 and 14 January 2011, the applicant admitted that she had swallowed a total of 100 pellets, for which she would be given US$10,000 if she were not intercepted by Customs; she also knew the pellets were dangerous drugs but did not know what type of drugs they were.  The 11 pellets found in her underwear were pellets she had prematurely discharged and hidden in her underwear.

6.The estimated retail value of the drugs in January 2011 was HK$1,053,546.59.

Mitigation

7.In mitigation, counsel on behalf of the applicant explained that the applicant came from a deprived background where her father was not able to work while her mother had suffered a stroke, as a result of which she had had to support her family including four younger sisters.  It was submitted that the lower end of relevant tariff band in R v Lau Tak Ming[1] should be adopted as the starting point for the quantity of drugs concerned, namely 15 years’ imprisonment.  It was also submitted that the enhancement of sentence for the international element should not be more than 1 year.

Reasons for Sentence

8.In sentencing the applicant, the judge outlined the various factors in determining the sentence for trafficking in dangerous drugs, including the narcotic amount of the dangerous drugs concerned, the applicable sentencing range, and the international element involved in bringing the drugs over the border into Hong Kong.  He further observed that the Court of Appeal had held that a clear record, youth, the fact that a defendant is a foreign national, and financial necessity should not have any significant bearing on sentencing for such offences.  The judge held that there was nothing said by the applicant’s counsel that could constitute exceptional mitigating circumstances.

9.However, the judge then referred to one issue which had been taken by the defence and argued before the court prior to mitigation.  He said of this issue[2]:

“It has now been agreed that there are two types of MAM, what I shall call “3-MAM” and “6-MAM”. 3-MAM is regarded as of much lower potency and is in fact described as inactive. 6-MAM has the same potency as heroin hydrochloride and further testing by the Government Chemist has revealed the form of MAM being trafficked by both defendants as being 6-MAM.

The original mitigation of (defence counsel) was predicated on the possibility of being able to persuade this court that the MAM should not be aggregated with the heroin and that it should either be ignored or, if punished, should be treated differently from heroin hydrochloride and should not be taken into account when determining into which band each defendant fell.”

10.However, the judge rightly went on to resolve this issue against the defence, and continued as follows[3]:

“I have rejected that submission but that submission only became possible because the Government Chemist had not in the past distinguished between 3-MAM and 6-MAM when certifying the nature of the substance that he had examined. To describe this as unsatisfactory is an understatement and I am pleased to be informed that henceforth this will end and the type of MAM will be more precisely identified.

As a result of the Government Chemist’s unsatisfactory practice, counsel and their clients have been misled into believing that they had a reasonable prospect in convincing this court of their arguments in relation to how this court should treat the MAM. In this respect, I note the judgment of Madam Beeson J in the case counsel referred me to.

Though neither they nor their clients could say that they had a settled expectation of success in respect of their argument, they did have their hopes falsely raised by the Government Chemist’s lax practice. This I regard as a strong item of mitigation for both defendants and I have taken it into account both when determining where within the relevant bands I should adopt as a starting point and the amount by which I should enhance that starting point.” (Emphasis supplied)

11.Accordingly, the judge adopted a starting point for sentence of 16 years’ imprisonment for the quantity concerned, which he enhanced by 6 months for the international element involved in bringing drugs across the border into Hong Kong.  He then discounted the starting point of 16½ years’ imprisonment by a full one-third for plea, resulting in a sentence of 11 years’ imprisonment.

Application out of time

12.In an affirmation attached to her Form XI, the applicant explained that she was seeking a reduction in her sentence since her mother was sick and her other family members had no other means of support.  She did not dispute the quantum of her sentence on any other ground; and no explanation has been given for the lateness of her application.

13.In a letter to the Court dated 1 January 2016, the applicant reiterated that she did not dispute the level of sentence imposed upon her, but hoped to be discharged early since she has learnt her lesson and promised not to commit the offence again.  In another letter to the Court dated 8 February 2016, the applicant asked to be provided with the relevant tariff case(s) applicable at the time of her offence.

14.Finally, by letter of 20 April 2016, the applicant produced, without objection from the respondent, a letter from Fr John Wotherspoon, a prison chaplain in Hong Kong, explaining the part the applicant has played in helping to spread the message via a website he has set up to discourage people from Africa from bringing, or being enticed to bring, drugs into Hong Kong.  Fr Wotherspoon maintains that this campaign appears to have been very successful, inasmuch as only one Tanzanian has been arrested for bringing drugs into Hong Kong in the past year.

15.In the course the hearing, and again without objection from the respondent, we received further elaboration upon this matter from Fr Franco Mella on Fr Wotherspoon’s behalf, since the latter was unable to attend court.  Apart from describing how the campaign has been set up to reach people in Africa, Fr Mella also raised the general concern of how defendants like the applicant are being duped, perhaps even set up as decoys, to enable drugs to be brought into Hong Kong and yet, by reference to the quantity of narcotic alone, are receiving the same sentences as those who may be far more heavily involved in organising and financing the trafficking of dangerous drugs.  Meanwhile, those who control this pernicious trade are, as he put it, “living in 5-star hotels”, while those used as drug mules are facing long sentences in prison in a foreign country, without any recognition by the courts of the subordinate role they have played.

The respondent’s submissions

16.Mr Eddie Sean, SADPP, for the respondent submits that the applicant has not offered any reasonable explanation for the delay in her application, and that the sentence imposed by the judge was neither wrong in principle nor manifestly excessive in accordance with the relevant guidelines applicable to the quantities concerned, which guidelines have been universally applied and understood in Hong Kong for many years.  He contends that the present application has no merit.

Consideration

17.No valid reason at all has been tendered to explain why this application for leave to appeal against sentence is being made so far out of time.  Extenuating family or domestic circumstances are not valid reasons for mounting such an application.

18.As for the quantum of sentence, the starting point was within the relevant guideline case applicable at the time, namely Lau Tak Ming (supra), which stipulates a starting point of 15 to 20 years’ imprisonment for trafficking in between 400 and 600 grammes of heroin narcotic.  Here, the relevant quantity of narcotic was 516.86 grammes.  On a purely arithmetical basis, subject to the issue which the judge described as “a strong item of mitigation”, the applicant could not have complained if the starting point for sentence in respect of the quantity alone had been rather higher, in the region of 17½ years’ imprisonment.

19.As for the enhancement for the international element, the applicant would also have had no complaint if the judge had enhanced the starting point by 1 year for the importation of more than half a kilogramme of heroin narcotic, rather than the 6 months which was adopted.  Indeed, the applicant’s own counsel had realistically accepted that the enhancement for this factor should be about 1 year.  In HKSAR v Anyalechi [2016] 2 HKLRD 20, the respondent had argued, at para 12:

“It was further entirely appropriate for the judge to have enhanced the sentence by 1 year’s imprisonment for bringing more than half a kilogramme of cocaine narcotic across the border into Hong Kong. Even though the guidelines in HKSAR v Chung Ping Kun [2014] 6 HKC 106 only came into effect six weeks after this offence was committed, they did no more than formalise a general practice that was already in operation, with some exceptions, long before the case was decided.”

This Court agreed with that submission.  [The guidelines for heroin under Lau Tak Ming (supra) were applied to cocaine by virtue of the decision in R v Pedro Nel Rojas [1994] 2 HKCLR 69].

20.Accordingly, but for the matter which the judge said he accepted as “strong mitigation”, the duly enhanced overall sentence in the applicant’s case after trial could have been, on an arithmetical basis in accordance with guidelines, as much as 18½ years’ imprisonment for the quantity of heroin narcotic concerned which had been imported into Hong Kong.  The judge’s adoption of 16½ years’ imprisonment after trial, therefore, was a much lower starting point than it should have been, resulting in a sentence after the appropriate discount which was correspondingly unduly lenient.

21.With great respect, this reduction was not a proper use of judicial discretion.  There is a wider public interest which calls for those who are convicted of international drug smuggling to and through Hong Kong to be dealt with severely and consistently in accordance with sentencing guidelines which have been in existence for many years.  If not severely, Hong Kong will quickly become a destination or transit point for the dissemination of dangerous drugs around the region, where penalties are even more drastic: if not consistently, other defendants will wonder why they are being dealt with more harshly, or seek to justify a reduction of their sentence on appeal by reference to other more lenient sentences, sometimes many years after the original sentence has been passed.

22.As for the comments of Fr Mella, which were made courteously and with obvious care and conviction, and for which we are grateful, we can certainly appreciate the conceptual differences in role between a courier and the organisers and financiers behind the trafficking of any dangerous drugs operation, be it local or international.  However, as sentencing policy presently stands in relation to trafficking in dangerous drugs in Hong Kong, the guidelines are appropriate for someone such as the applicant, who was, after all, prepared to risk swallowing no less than 100 pellets of heroin and smuggle them into Hong Kong for substantial reward, in what she must have appreciated, from the obviously dangerous steps taken to ingest the drugs, was a very serious crime against the laws of a foreign country.

23.In Lau Tak Ming, the Court said, at p 386E-F:

“Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight.”

This passage was cited with approval by the Court in HKSAR v Abdallah [2009] 2 HKLRD 437, at 451 para 33.  The Court in Lau Tak Ming went on, at 386F-G, to explain:

“By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middle man by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

24.It is clear, therefore, that for over a quarter of a century, the courts in this jurisdiction have, as a matter of policy, determined that the quantity of narcotic concerned is the single most important factor in assessing sentences for drug traffickers, and that the often distressing circumstances of those used to courier dangerous drugs, sometimes across the world, cannot elicit the court’s sympathy and deflect it from applying a consistent policy.  We acknowledge that this approach may be contrasted with the development of this area of criminal sentencing in, for example, the United Kingdom, where judges are required to determine culpability (the defendant’s role) and harm (the quantity of the dangerous drug) by reference to tables published in a Drug Offences Definitive Guideline issued by the Sentencing Council in 2012.   Harm is categorised according to the quantity of the particular dangerous drug concerned, while culpability is determined by reference to whether the defendant played a ‘leading role’, a ‘significant role’ or a ‘lesser role’, as defined.

25.Nevertheless, given the established policy of the courts in Hong Kong, and given that the sentence passed was already unjustifiably lenient under the relevant guidelines applicable in this jurisdiction, this is not the case to entertain an argument that the guidelines might be recast so as to cater more appropriately for the different roles of drug traffickers.

26.It follows that there is no merit in the applicant’s appeal against sentence in the light of the relevant guidelines applicable, which were not correctly applied in the applicant’s case.  Nor can extenuating family or domestic circumstances normally be any reason to reduce an otherwise proper sentence in cases of such seriousness.

27.For these reasons, the application for leave to appeal against sentence out of time was refused.

Mr Eddie Sean SADPP, of the Department of Justice, for the Respondent

The Applicant appeared in person