HKSAR v. Chin Li Ying

CACC 12/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 12 OF 2017

(ON APPEAL FROM HCCC NO 146 OF 2016)

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Before: Hon Lunn VP and Macrae JA in Court

Date of Hearing: 29 September 2017

Date of Judgment: 29 September 2017

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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.The applicant pleaded guilty before a magistrate to a charge of Trafficking in a dangerous drug, namely 2,157.8 grammes of a crystalline solid containing 2,077.1 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, as a result of which she was committed for sentence to the High Court. On 2 June 2016, she was sentenced by Zervos J (“the judge”) to 15 years and 4 months’ imprisonment. She now appeals against her sentence out of time, having filed her Notice of application for leave to appeal (“Form XI”) on 13 January 2017, by which date she was more than 6 months out of time.

The facts

2.On 22 August 2015, at about 3 pm, a Customs officer at Hong Kong International Airport was conducting Customs clearance duty on checked baggage in respect of a flight destined for Jakarta, Indonesia.  A suitcase checked in by the applicant, who had transited from a ferry from Jiuzhou on the Mainland, was identified by an X-ray image to be suspicious.  The suitcase was brought to the boarding gate of the flight, where the applicant was intercepted as she was about to board the aeroplane.  Nothing suspicious was found on her body, but she confirmed that the suitcase was hers.

3.Upon a search of the suitcase in the presence of the applicant, it was found to contain: two chocolate boxes each containing one tinfoil bag; one tea canister containing two tinfoil bags; and three tea canisters each containing one tinfoil bag.  The seven tinfoil bags were suspected to contain dangerous drugs.

4.The applicant was arrested and cautioned.  Under caution, she admitted that the crystalline solid was “Ice”, which had been given to her by a man in Zhuhai, who told her to take a ferry from Jiuzhou to Hong Kong International Airport where she would transit to a flight to Jakarta.  She was promised 3,000 Malaysian Ringgit as a reward.

5.The substance in the tinfoil bags was subsequently found to contain a total of 2,157.8 grammes of a crystalline solid containing 2,077.1 grammes of “Ice”.

6.On 23 August 2015, a video-recorded interview was conducted with the applicant, in which she stated under caution, inter alia, that:

(a) She lived in Kepong, Kuala Lumpur with her husband and two-year old daughter;

(b) She was recruited by an unknown person in Kuala Lumpur to travel to Macau and bring dangerous drugs to Jakarta;

(c) The unknown person arranged for the tickets for her trip, and she was given RMB2,500 in respect of expenses;

(d) She had been told that dangerous drugs would be concealed in the packaging of food stuffs;

(e) On 20 August 2015, she travelled from Kuala Lumpur to Macau, then stayed in Zhuhai for two nights;

(f) On 22 August 2015, an unknown person telephoned her, asking her to look for a tree near the hotel where she was staying.  She duly retrieved a recycle bag containing chocolate boxes and a number of tea canisters;

(g) She packed the items into the suitcase and took a ferry from Jiuzhou to Hong Kong International Airport;

(h) She knew the items contained the dangerous drug “Ice” because she herself had taken “Ice” before; and

(i) She would receive her promised reward when she returned to Kuala Lumpur.

7.The street value of the dangerous drugs seized at the time was HK$709,916.20.

Mitigation

8.In mitigation, counsel on the applicant’s behalf submitted that the applicant had confessed to the offence upon her arrest; and that she had a clear record in both Malaysia and Hong Kong.  It was said that the applicant was 22 years of age from a simple background.  She had given birth to a baby whilst in custody, and she had another young child living in Malaysia with whom she was only able to speak by telephone once every two months; as a result of the impending sentence, the applicant would be deprived of seeing her two children grow up.  It was also submitted that the applicant had committed the offence since her husband could not provide for the family, and she had not thought of the consequences of her actions.  Her husband had since deserted her.

Reasons for sentence

9.In sentencing, the judge noted that the nature and degree of the applicant’s involvement in transporting the dangerous drugs was considerable, she having travelled to Macau and then Zhuhai, before bringing them into Hong Kong for onward transmission to Indonesia.

10.However, the judge accepted that she had acted as a courier and that hers was a “one-off involvement” in trafficking.

11.He adopted a starting point of 23 years and 6 months’ imprisonment, which he then enhanced by 2 years for the international element involved in bringing dangerous drugs across the border into Hong Kong. Taking into account the applicant’s personal circumstances, in particular her relatively young age and the fact that her new born child would in due course be taken away from her, the judge reduced the overall notional sentence after trial as an act of mercy to 23 years’ imprisonment.  Granting a full one-third discount for her plea of guilty, the applicant was duly sentenced to 15 years and 4 months’ imprisonment.

Grounds of appeal

12.In her grounds for leave to appeal out of time set out in her Form XI, the applicant submitted that there was no one to take care of her now 4-year old daughter in Malaysia, and that her husband had now been remanded in Lai Chi Kok Reception Centre.  Before us this morning, the applicant says that she wishes to abandon her appeal, having been assured by her husband that the eldest daughter will be taken care of by her mother‑in-law. It is too late now to abandon her appeal.  The Court is seized of the matter and will proceed to consider the application.

The respondent’s submissions

13.Mr Jones Tsui, on behalf of the respondent, began his written submissions by submitting that no valid reason had been given as to why this application should have been made more than 6 months out of time.  It was submitted that the change of circumstances of the applicant’s family was not a valid reason for mounting such an application.

14.Regarding the merits of the application, Mr Tsui contended that the starting point adopted by the judge was within the applicable guidelines.  He nevertheless pointed out that the initial starting point adopted by the judge was, on an arithmetical basis, lower than it should have been[1]. Moreover, the applicant was the beneficiary of an unduly lenient sentence when the judge decided, as an act of mercy, to reduce her notional sentence after trial from 25 years and 6 months’ imprisonment to 23 years’ imprisonment, before discounting that figure further by one third for her plea of guilty.

15.The respondent concluded that the sentence passed was already extremely lenient and could in no sense be said to be either manifestly excessive or wrong in principle.

Consideration

16.There are no valid grounds justifying this application for leave to appeal out of time.  Nevertheless, we have examined the sentence concerned to ensure that the applicant is not being deprived of a ground of appeal which might have had an impact on her sentence had she mounted it within time.

17.With great respect to the sentencing judge, the notional sentence after trial to reflect the quantity of dangerous drugs and the enhancement for the international element in sentencing for cross-border trafficking was very lenient indeed.  Neither the applicant’s age, nor her domestic circumstances, justified such a reduction in sentence.  Instead of a potential notional sentence after trial of 25 years and 11 months’ imprisonment, if one were to apply the guidelines arithmetically to the quantity of “Ice” concerned in order to arrive at a starting point, as judges are now encouraged to do, and then enhance the starting point by 2 years for the international element, the notional sentence after trial in fact adopted by the judge was only 23 years’ imprisonment.  Whilst we recognise the prerogative of judges to exercise mercy in appropriate circumstances, this applicant did not merit such a marked reduction.

18.Firstly, the applicant was an adult, a married woman and a mother, when she undertook the sustained and dangerous exercise of trafficking a large and very valuable consignment of dangerous drugs from one foreign country to another through Hong Kong.  Secondly, she must already have known that she was pregnant with her second child when she embarked on the enterprise for which she was to be well rewarded.  That she would do so in such a state, with all the appalling ramifications for her unborn child if she was caught, does not evoke sympathy from this Court and did not justify the course adopted by the judge.  As we have repeatedly said, sentencing courts cannot be deflected by such considerations from applying a consistent sentencing policy where the international trafficking of dangerous drugs is concerned.

19.Nor, thirdly, can the fact that, in addition to the child born in custody, there is another young child in Malaysia deter the courts from applying a consistent sentencing policy in relation to drug trafficking offences.  As this Court said in HKSAR v Law Hoi Yan Wing[2], at para 30:

“It is not unusual, of course, for offenders to pray in aid the hardship caused to innocent third parties by the long period of their incarceration. Inevitably, these innocent third parties are either elderly relatives or young children, or, as in the case of the present applicant, both. But, offenders must recognise that the suffering that flows as a consequence of their actions to innocent persons is not caused by the sentences of imprisonment imposed by the court on the offender, but by the offender’s own actions in succumbing to the temptation of obtaining easy money through drug trafficking and which has led the offender to be before the court. The courts cannot allow the impact on third parties to divert them from imposing an otherwise appropriate punishment upon the drug trafficker simply out of concern for the well-being of relatives affected by the drug trafficker’s incarceration.”

20.In HKSAR v Wong Cheuk Lam[3], this Court had earlier said of an appellant who was concerned about the welfare of her 4-year old daughter, at para 8:

“This appellant engaged on a deliberate course of conduct and employed others to assist her in trafficking drugs. She cannot, in the circumstances, pray in aid the need to look after her daughter, unfortunate for the daughter though that may be.”

21.It is worth perhaps repeating the injunction issued by the Court in the seminal case of R v Lau Tak Ming and Another[4], at 386F-H:

“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. 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 middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

22.Although the judge was, to be fair to him, careful to explain that he was deliberately passing a lenient sentence for the reasons which he set out, even he recognised that his room for manoeuvre should only lead to “a modest reduction”[5]. In the event, there was nothing modest about the reduction of the notional sentence after trial which he adopted.  Indeed, it was almost 3 years lower than it should have been.

23.We wish to remind judges that the consequence of departing so dramatically from the appropriate guidelines for no good reason is that this Court is then confronted with other applicants who feel aggrieved that they have been dealt with comparatively harshly, when they were in fact properly dealt with in accordance with the sentencing guidelines.  Indeed, we are acutely aware of such complaints, which are regularly made by appellants appearing before this Court, who have a keen awareness of the sentences passed on their fellow prisoners.

24.The ultimate sentence was in no way manifestly excessive: it was in our view manifestly inadequate.  The applicant should consider herself fortunate that there is no application before this Court by the respondent to review her sentence.

25.The application is refused.

Mr Jones Tsui SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person