HKSAR v. Hlongwane Lindokuhle Grace

CACC 155/2017
[2018] HKCA 41

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 155 OF 2017

(ON APPEAL FROM HCCC 79 OF 2017)

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Before :  Hon Pang JA and Hon P Li J in Court

Dates of Hearing :  19 January 2018

Date of Judgment :  19 January 2018

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.On her own plea, the applicant was convicted of one count of trafficking in a dangerous drug, namely 1.39 kg of cocaine (12 May 2017).  She was sentenced by A Pang J to 16 years and 8 months’ imprisonment (same day).  Having been refused legal aid on the merits, she seeks leave to appeal against her sentence in person.

THE FACTS

2.For present purposes, the detailed facts of this case are of no significance.  Suffice it to say that the applicant was a South African national; she boarded a flight in Johannesburg and, upon her arrival in Hong Kong at the Hong Kong International Airport, was found to be in possession of the dangerous drug in question (29 February 2016); the drug was concealed in a girdle which the applicant was wearing; under caution, the applicant stated that, whilst in transit in Dubai, she was approached by a man who offered US$3,000 for her to deliver “a parcel” to Hong Kong; this parcel turned out to be the said girdle which she received and had worn beneath her clothes in a hotel in Dubai before continuing with her journey.  By pleading guilty, the applicant accepted that she had knowledge of what was concealed inside the girdle.

PERSONAL BACKGROUND & MITIGATION

3.At the time of her plea, the Applicant was aged 25 and of hitherto clear record.  She was educated up to tertiary level and had her own baking business.  She was a single mother with three young children then aged between 2 and 10.

4.In mitigation, it was said that having to help her parents to support her siblings financially, one of whom was a cancer patient, the applicant had foolishly allowed herself to be engaged in drug trafficking, a one-off incident for which she was truly sorry.  Since her arrest, there was neither money nor any suitable adult to look after her children at home.

5.In a letter written by Fr John Wotherspoon, it was further submitted on the applicant’s behalf that she had joined the former’s campaign to warn South African nationals of the hazards of trafficking dangerous drugs to Hong Kong.  Apart from letting her case be known through one of South Africa’s most popular blogs, the applicant’s effort had extended to writing out her whole story in a book, the sentencing judge was told.

THE SENTENCE

6.In passing sentence, A Pang J had expressly made it known that she was alive to everything that was said on the applicant’s behalf; she was not however persuaded that they amounted to any effective mitigation.[1] Instead, in applying the tariff cases of The Queen v Lau Tak Ming [1990] 2 HKLRD 370 and HKSAR v Abdallah [2009] 2 HKLRD 437, the judge had adopted the starting point of sentence of 23 years’ imprisonment, enhanced it by 2 years to take account of the international element of the case and then reduced that sub-total by one-third to accord the applicant the customary discount for pleading guilty.  In the result, the applicant was sentenced to a term of 16 years and 8 months’ imprisonment.

GROUNDS OF APPEAL

7.In a letter attached to her Notice of Application for Leave to Appeal (25 May 2017), the applicant complained that, in view of her and her family’s letters of regret, remorse and apology sent previously to A Pang J and the Customs and Excise Department, but also in view of her participation in Fr Wotherspoon’s publicity campaign, an effort she admitted was premised on legal advice to be “helpful to the authorities in every possible way”, the sentence of 16 years and 8 months’ imprisonment was “harsh”.  She said, in prison, although she could not provide their exact references, she had come across others who had trafficked in like quantities of drugs in like circumstances but who were given lighter sentences, so she felt she was “unfairly judged [treated?]”.

8.Today, in court, all the above points were but repeated before us; although separately we did receive a letter from one Mike Fenton in Australia (dated 24 December 2017) who confirmed receiving a 22,000-word manuscript from the applicant.  Subject to “minor editing”, the applicant’s work when finished would be put to print in the form of a book called “Bag Full of Years”, the letter said.  It is expected that this work will “provide timely education to young people but also act as a deterrent to those contemplating drug trafficking”.

DISCUSSION

9.We do not think there is any merit in this application.

10.It is trite law that, for an offence as egregious as the importation of a huge quantity of hard drugs into Hong Kong, a defendant’s remorse – even genuine remorse – counts for little to nothing in his or her sentencing.  The same is true of whatever resulting predicament that the defendant may have landed his or her family.  The primary objective of sentencing in such cases is deterrence.

11.In order to minimize disparity, the courts strive to sentence comparable cases comparably.  For drug trafficking offences, this is achieved by carefully calibrating the sentence according to the nature and quantity of the narcotic involved, give or take any aggravating or mitigating circumstances.  Where for some reason this exercise has gone awry, and the result is not reconcilable with what is stipulated in the guideline cases, as it sometimes happens, such instances of anomaly are not however to be relied on by other defendants in other cases as a ground of appeal.  More often, it is just a question of the other defendants not being in full grasp of the factual nuances that give rise to the appearance of disparity between cases.  Either way, a defendant whose own sentence is a proper punishment can have no complaint.  That also is trite law.

12.Because of the interest that it has created amongst convicted international drug traffickers, this Court has on a number of occasions had cause to address the impact of Fr Wotherspoon’s campaign on sentencing appeals.  Of note is the recent decision of HKSAR v Ndungu Rahab Wanjiru CACC 64/2016 (Unreported, 7 December 2016) where, giving the judgment of the Court, Macrae JA had categorically stated :[2]

“ We are bound by these [earlier] decisions ….. Any recognition of the applicant’s efforts in support of Fr Wotherspoon’s campaign must be a matter for the executive.”

As explained in HKSAR v Odira Sharon Lensa CACC 56/2016 (Unreported, 22 September 2016), this Court is simply not as well equipped as the executive to assess “the value to Hong Kong” of this campaign.[3]

DISPOSAL

13.We are satisfied that the applicant’s sentence is a correct one.  It was arrived at as a result of properly applying the relevant guideline cases.  There being no mitigating factor other than the plea of guilty, the term of 16 years and 8 months’ imprisonment is not open to criticism.  We refuse the applicant leave and her appeal against sentence is dismissed.

Applicant, in person, present

Ms Teresa Kam, SPP of Department of Justice, for the Respondent