HKSAR v. Zaripov Eduard

CACC 165/2018

[2019] HKCA 345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 165 OF 2018

(ON APPEAL FROM HCCC NO 86 OF 2018)

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Before: Hon Macrae VP and Zervos JA in Court

Date of Hearing: 12 March 2019

Date of Judgment: 21 March 2019

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.On 25 May 2018, the applicant was sentenced by Deputy High Court Judge Stuart‑Moore (“the judge”) to 14 years’ imprisonment, following his plea of guilty to one count of trafficking in a dangerous drug, namely, 925.30 grammes of a solid containing 591.73 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He now seeks leave to appeal in person against his sentence.

The facts

2.The applicant is a Russian national.  On 6 June 2017, he arrived at Hong Kong International Airport on a flight from Rio de Janeiro, Brazil via Dubai in the United Arab Emirates.  He was intercepted by Customs Officers for a search.  In a pair of socks inside a black bag, and in a Dubai Duty Free plastic bag, both of which he was carrying at the time, were found 11 and 13 packets of cocaine respectively.  The applicant was accordingly arrested and cautioned.  He was then sent to North Lantau Hospital, where he later excreted from his body a further 66 packets of cocaine.

3.The total quantity of 90 packets being trafficked by the applicant were subsequently found to consist of the drugs in the quantities particularised in the count.  The estimated retail value of the drugs was $783,729.

The applicant’s mitigation

4.At the time of sentence, the applicant was 39 years of age.  He came from the Urals in Russia, where he had been working for a non‑ferrous metal company.  He had a daughter who was 6 years old by a former partner in Russia, from whom he had since separated.  He had thereafter formed a relationship with another woman.

5.The applicant claimed to have become involved in this offence whilst on holiday in Thailand, where he had met certain people who asked him to transport some dangerous drugs to Hong Kong.  He subsequently went to Hong Kong, where he met an African male who gave him instructions as to what he should do.  He duly returned to Russia and obtained a new passport.  He then flew to Brazil, where he collected the drugs in question, before coming to Hong Kong via Dubai.  He had been paid US$5,000 for his expenses, including air tickets, and was to be given a further US$10,000 as a reward when he had successfully completed the mission.  However, he was arrested upon his arrival in Hong Kong.

6.The applicant’s mother, who was 57 at the time of sentence, was said to have had a heart operation for a medial valve in 2008.  However, the operation was unsuccessful and she continued to experience heart problems.  His father, who was 62, was said to have had heart surgery in 2015, following which he had become an invalid.  The applicant was the only child of the family.  He had been to university, where he read psychology.

7.A letter to the court was produced from his employer, who confirmed that the applicant had been employed as a sales manager with the company concerned since 2010.  He was considered by the company to be highly professional and a very “accurate” worker.  Another letter from the applicant’s neighbourhood councillor described the applicant as a good man, polite, kind, attentive and sober, who had lived in the area since 2007.  Some of his neighbours had signed the letter to confirm its contents.

8.A further letter from the Russian Consulate General in Hong Kong was produced to the court, confirming that the applicant had a clear criminal record in Russia.  It was submitted on his behalf that the applicant was remorseful, the offence was out of character and his incarceration in a foreign land would have a huge impact on his family.

Reasons for sentence

9.Acknowledging that the applicant seemed to have come from a stable family, the judge referred to the sentencing guidelines in R v Lau Tak-ming & Others[1] and Attorney General v Pedro Nel Rojas[2], and held that the appropriate starting point for the quantity of cocaine narcotic concerned should nevertheless be 20 years’ imprisonment.

10.Since the drugs had been imported across the border into Hong Kong, the judge enhanced the sentence for the ‘international element’ involved by 1 year, expressly acknowledging that the enhancement could have been greater under the guidelines in HKSAR v Chung Ping Kun[3].

11.The overall notional sentence after trial adopted was, therefore, 21 years’ imprisonment.  Giving full credit for the applicant’s timely plea, the judge discounted the sentence by one-third and imposed a sentence of 14 years’ imprisonment.

Grounds of appeal against sentence

12.In his Form XI Notice of application for leave, filed on 1 August 2018, the applicant set out four initial grounds of appeal against sentence, namely that (i) he had pleaded guilty; (ii) the sentence passed on him was “too much”; (iii) the judge was biased; and (iv) his counsel did not assist him in reducing the sentence.  However, subsequent to his Form XI application, and assisted by a friend in prison, the applicant signed and filed the following documents, on 10 December 2018:

(1) an application to file amended grounds of appeal against sentence;

(2) amended grounds of appeal against sentence (“amended grounds”);

(3) an application for an appeal aid certificate.

13.His application for legal aid was, however, refused on 13 February 2019.  In his application to file amended grounds of appeal, the applicant stated that he wished to withdraw his initial grounds and substitute them with the proposed amended grounds.  We granted leave for him to do so.

14.By Ground 1, the applicant submitted that the starting point for sentence of 20 years’ imprisonment in respect of 591.73 grammes of cocaine narcotic was excessive by a factor of some 2½ months.  According to the applicable sentencing guidelines[4], arithmetically applied to such a quantity, the starting point should have been 19 years and 9½ months’ imprisonment.

15.By Ground 2, the applicant complained that the application of the heroin guidelines in Lau Tak-ming & Others to cocaine on a gramme for gramme basis, by virtue of the decision in Pedro Nel Rojas, was irrational.  He argued that, while cocaine was a harmful drug, heroin was even more harmful and required a lower dose than cocaine when consumed by an abuser; consequently, it did not make sense to sentence an offender for trafficking in heroin and cocaine in the same way.  Since it was irrational, the application of the heroin guidelines to cocaine was unlawful.

16.In making good the proposition, the applicant maintained that if he had the funds, he would seek to adduce expert evidence showing that “whilst cocaine is an extremely dangerous drug, heroin is dangerous to a significantly greater degree, both in terms of dependence-ratio across the population of drug users and risk of death from drug related misadventure or overdose”; and that “whilst the societal costs of cocaine are significant, the costs of heroin abuse are of an order of magnitude greater”[5].

17.The applicant contended by Ground 3 that the enhancement for the international element involved in cross-border trafficking was arbitrary, irrational and contrary to the general policy of the law.  He submitted that it is the policy of the law to sentence different defendants whose culpability is equal in the same way.

18.The applicant further contended that if he had the funds, he would also seek to adduce expert evidence to show that there is no domestic cultivation and production of cocaine in Hong Kong[6].  He argued that every party involved in the cocaine supply chain would know that the cocaine with which they were dealing originated from overseas and should be just as culpable as an international courier.  To enhance the sentence for foreign drug “mules” crossing the border into Hong Kong was therefore unfair and contrary to the policy of treating equally culpable defendants in the same way.

19.The applicant also argued that it was irrational to enhance the sentences of such couriers, when it would be more effective to deter local labour supply, since there was said to be an unlimited supply of foreign couriers compared to the more limited local labour supply.

20.By Ground 4, the applicant submitted that it was arbitrary and, therefore, unlawful to preclude personal circumstances from being treated as meaningful mitigation in cases of drug trafficking.  He averred that the courts regularly heard and acted upon mitigation based on personal circumstances in other serious offences such as manslaughter, rape, inflicting grievous bodily harm and robbery, all of which offences also carried a maximum sentence of life imprisonment.  It was argued that there was no legislative or evidential basis for distinguishing between drug trafficking and these other serious offences when it came to assessing personal circumstances.

21.Accordingly, it was arbitrary, and therefore a violation of Article 28 of the Basic Law, to preclude personal circumstances from being received as meaningful mitigation in drug trafficking cases, since it was “capricious or unreasoned or without reasonable cause”: see HKSAR v Lau Cheong[7], in which the Court of Final Appeal considered the meaning of “arbitrary” in Article 28.

Respondent’s submissions

22.In addressing Ground 1, Mr Ivan Cheung on behalf of the respondent, for whose submissions we are grateful, accepted that, as a matter of arithmetic, 591.73 grammes of cocaine could have attracted a lower starting point than 20 years’ imprisonment.  He submitted that, on a strictly arithmetical basis, the starting point should have been 19 years and 10 months’ imprisonment.  However, he argued that a difference of 2 months did not give the applicant any cause for complaint.  Moreover, he pointed out that the enhancement of 1 year’s imprisonment for the international element was lower than it might otherwise have been, as the judge himself acknowledged. Accordingly, the 2‑month increase was offset by the reduction given in respect of the international factor.

23.In relation to Ground 2, the respondent referred to the relevant line of authorities, beginning with Chan Chi-ming v R[8], where this Court had originally laid down sentencing guidelines for trafficking in heroin.  The Chan Chi-ming guidelines for trafficking in heroin had been directly applied to cocaine by the Court in Attorney General v Leung Pang-chiu[9].  When the Court did so, it considered the potency and harm of cocaine and, in terms of the scale of soft to hard drugs, assigned it to “the upper of hard end of the scale”[10].

24.The Chan Chi-ming guidelines were subsequently revised in Lau Tak-ming & Others.  It was submitted that in Attorney General v Ching Kwok-hung[11], while adapting the revised heroin tariff in respect of methamphetamine hydrochloride (commonly known as “Ice”)[12], the Court had recognised “hard drugs” as a special category for the purpose of sentencing.

25.In Pedro Nel Rojas, the Court of Appeal affirmed that the revised heroin tariff in Lau Tak-ming & Others was applicable to cocaine, commenting that cocaine and heroin were “very closely alike in their degree of harm”[13], and were “to be equated for sentencing purposes”, notwithstanding the apparent claim that cocaine was less addictive than heroin[14].

26.Mr Cheung submitted that, given the line of authority developed by the Court of Appeal in Hong Kong, there was no merit in the applicant’s contention that there was a difference in the characteristics of cocaine and heroin, which warranted lighter treatment in sentencing for trafficking in cocaine.  There was, therefore, no need to receive any of the further evidence either produced or proposed by the applicant.

27.In relation to Ground 3, Mr Cheung pointed out that the argument that there was no domestic cultivation or production of cocaine in Hong Kong only served to justify the policy of enhancing sentences for those who sought to bring the drug into Hong Kong.  He submitted that there was nothing illogical or unlawful in countries endeavouring to protect themselves from dangerous drugs being imported into their jurisdictions.  Accordingly, the further evidence sought to be introduced was not to the point.

28.He referred to the recent decision in HKSAR v Rwakibale Aheebwa Peter[15], where this Court emphasised that the international element involved in trafficking was a recognised aggravation of the offence, warranting an appropriate level of enhancement of sentence.  It further expressly rejected the argument that it was tantamount to double punishment.  Mr Cheung also cited the recent decision of this Court in HKSAR v Kilima Abubakar Abbas[16], where it had been held that no case had been made out for following sentencing guidelines for drug trafficking in other common law jurisdictions.

29.In respect of the complaint that personal circumstances were unjustly given no weight in cases of drug trafficking, Mr Cheung cited the decision in HKSAR v Anyalechi[17], where it had been held that personal circumstances could not deflect the courts from applying the law firmly and consistently where serious offences of international drug trafficking were concerned[18]. Furthermore, it had been said in Rwakibale Aheebwa Peter that the grievous nature of the offence of drug trafficking meant that the courts could not be swayed by the personal circumstances of drug couriers, who because of their often desperate circumstances were the ones most readily tempted to take the risks associated with such an offence[19].

Consideration

30.At the outset of the appeal, we indicated to the applicant that if we considered there were arguable grounds of appeal meriting the granting of legal aid, we would adjourn the matter for that purpose.  In the result, we did not consider that any of the matters raised by the applicant was arguable.  Having heard argument from the parties, we indicated that we would reserve our decision.

31.In relation to Ground 1, we accept that the judge’s starting point in respect of the quantity of narcotic involved, namely 591.73 grammes of cocaine, was just over 2 months more than it might have been, when viewed on a strictly arithmetical basis under the relevant guidelines.  That, however, would not by itself be enough to cause this Court to interfere.  In HKSAR v Smit Hector Edward[20], the Court held that:

“A departure from a strict arithmetical starting point is not, by itself, objectionable, but where it is significant it should be explained.”

We do not consider the slight increase of just over 2 months’ imprisonment to be significant in the context of a starting point in the region of 20 years’ imprisonment.

32.In any event, as the judge himself acknowledged, the enhancement for the international factor, under the guidelines in Chung Ping Kun, could have been greater; in fact, on an arithmetical basis, by some 2 months.  We therefore see no merit in Ground 1 of the appeal.

33.In respect of the argument advanced by Ground 2 that successive judgments of this Court have been wrong to equate the trafficking of cocaine with the trafficking of heroin for sentencing purposes, such an approach has been settled law in this jurisdiction for more than three decades.  We would have to be persuaded that equating cocaine with heroin is flawed in the light of recent advances in scientific and medical understanding of the relative nature and toxicity of the two drugs, so that the policy of the courts should be revisited.  However, while the approach of the Court in Leung Pang-chiu may have been articulated 33 years ago with an appropriate degree of caution given that by that stage “cocaine has made a start in this territory”[21] and was not nearly as prevalent as it is today, we consider that the Court’s judgment was correct and, through the passage of time, has been shown to be so.

34.Whatever differences there may be as to the nature, toxicity and chemical composition of the two drugs, the experience of the courts of Hong Kong is that cocaine is a highly addictive dangerous drug that is just as pernicious as heroin in its effects on the individual, his friends, colleagues and family and on society in general.  As Mr Cheung remarked, what may have been a relative newcomer to the drugs trade in Hong Kong in 1986 is now very prevalent and, unlike perhaps heroin, affects all walks of life.  That prevalence and permeation throughout the community is good reason in itself for not relaxing the current guidelines for trafficking in cocaine, and for having a strong deterrent component in sentencing.  There can be no doubt as to the level of danger and harm which cocaine poses to the individual and the community by its abuse.  It is not perhaps without significance that the applicant has himself acknowledged in his written arguments, as we have seen, that cocaine is “an extremely dangerous drug”.

35.It is sadly the common experience of this Court that personal and family relationships as well as work performance, health and behaviour are detrimentally impacted and often ruined by addiction to cocaine.  Where families are destroyed by the ravages of drugs, communities and society are affected.  This particular drug lies behind the commission of very serious offences in this jurisdiction by those trafficking in the drug, as well as those addicted to it.  It can lead to the death of the addict and, indeed, those addicted to cocaine have been known to kill under its influence.

36.In Leung Pang-chiu, the Court referred to, and relied upon[22], the judgment of Lord Lane CJ in R v Martinez[23], who had noted, on the basis of evidence adduced before the Court, that the abuse of cocaine “resulted in very serious physical addiction”, one of its effects being to induce “psychosis in the shape of a feeling of persecution, which might have extremely dangerous consequences”[24].

37.In Martinez[25], the Lord Chief Justice had earlier said this:

“First of all it should be made clear that there is no distinction to be drawn between the various types of Class A drug. The fact that in the decision to which I have referred, namely Aramah[26], particular mention was made of heroin was because at that time, in terms of availability, heroin presented the greatest threat to the community. The same considerations as applied to heroin apply equally to other Class A drugs. Any idea that those who import or deal in cocaine or LSD, as it is known, should be treated more leniently is entirely wrong.

This case concerns, as already indicated, the importation of cocaine hydrochloride. The illicit importation and abuse of this drug is on the increase.  It is time to draw attention to the increasing abuse of cocaine and the dangers of its abuse and to dispel the myth which seems to obtain in some quarters that cocaine is merely some sort of social aid and is not addictive.”

38.Consistent with this approach, it is to be noted that the Definitive Guideline in respect of drugs offences produced by the Sentencing Council in England and Wales draws no distinction at all between cocaine and heroin, both of which are classified as Class A drugs under the Misuse of Drugs Act 1971 (“the Act”), when sentencing for offences of importation or possession with intent to supply in respect of any of its four categories of harm.

39.The policy of the English courts enunciated in Martinez of not distinguishing between different drugs of the same classification under the Act was affirmed in R v Wijs[27], where Lord Bingham CJ, in dealing with a Class B drug, expressly approved of this approach[28]:

“We are also satisfied, as was held in relation to Class A drugs in Martinez…, that we should not attempt to distinguish between different drugs included by Parliament in Class B on the basis that one such drug is more or less pernicious than another.”

This same passage was later re‑affirmed in R v McGrath[29].

40.We are not prepared to receive the evidence which the applicant seeks to adduce by way of Notice of Motion, although we have viewed it on a de bene esse basis.  None of it is capable of affecting the outcome of this appeal.  The applicant, it should be remembered, was not a drug addict himself but, by all accounts, a well-regarded son and employee with a university education who, neither out of poverty nor ignorance, deliberately chose to carry a large and valuable consignment of cocaine across the world into this jurisdiction, with which he had no prior connection, for reward.  Where international drug trafficking is concerned, defendants can expect to receive condign punishment from the courts.

41.As for the contention in Ground 3 that the enhancement for bringing drugs across the border is irrational and contrary to the policy of treating like offences equally, the argument again runs counter to the long‑held practice of sentencing in this jurisdiction, recently re‑affirmed by this Court in Kilima Abubakar Abbas.  As was pointed out in Kilima Abubakar Abbas, Hong Kong has developed its own sentencing practice to reflect the prevalence and manifestation of the particular offence with which it has to deal, bearing in mind the attitudes to this offence not only of our own society, but also of our neighbours in this part of the world[30].

42.Moreover, the argument that someone with no connection with Hong Kong who, pursuant to an international conspiracy, ingests and carries cocaine across the world to Hong Kong for reward knowing full well the effects of the dissemination of those drugs on the streets of this city, should be treated the same as the person who carries drugs from one part of Hong Kong to another, is not a realistic comparison.  Both forms of trafficking demand deterrence but, as Mr Cheung points out, the very fact that the only way this particular drug can be in Hong Kong is by someone bringing it in across the border justifies a particular deterrent element where international drug smuggling is concerned.

43.Finally, the complaint that the guidelines in respect of sentencing for cocaine, and the enhancement for the international element, are somehow arbitrary has been recently dealt with exhaustively and rejected by this Court in HKSAR v Godson Ugochukwu Okoro[31].

44.So also did the Court in Godson Ugochukwu Okoro deal with the argument under Ground 4 that it is arbitrary and unfair not to take into account personal circumstances where offences of drug trafficking are concerned.  The policy of the courts concerning personal circumstances in cases of international drug trafficking has been re‑stated in countless decisions of this Court over many years.  However, it seems to us that the argument is not even engaged in this case.  As we have pointed out, the applicant was someone who was university-educated and fully and gainfully employed. He was also described as a responsible son, husband and father to a young child.  We do not see the sort of extenuating or desperate circumstances that are often put forward in mitigation in offences of this nature by defendants in far less privileged circumstances.

45.There is nothing in the personal circumstances or mitigation advanced by the applicant, or on his behalf, which could realistically affect the sentence for this offence or, for that matter, any other offence of comparable gravity.

Conclusion

46.The application for leave to appeal is accordingly refused and the appeal dismissed.

Mr Ivan Cheung SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person