HKSAR v. Fong Yau Heung

CACC 173/2020

[2022] HKCA 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 173 OF 2020

(ON APPEAL FROM HCCC NO 152 OF 2020)

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Before: Hon Macrae VP and Zervos JA in Court

Date of Hearing: 16 February 2022

Date of Judgment: 7 March 2022

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J U D G M E N T

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

1.This appeal examines the ambit and application of the aggravating factor, commonly referred to as an “international element”, in respect of the offence of trafficking in a dangerous drug.

2.On 20 July 2013, the appellant entered Hong Kong through the Border Control Point at Lok Ma Chau and was found to be in possession of ten packets of drugs, consisting of 18.66 grammes of methamphetamine hydrochloride (commonly referred to as “Ice”) and an unquantified amount of methamphetamine. She admitted that some of the drugs were purchased by her for her personal consumption (two packets), while the rest was given to her by others (eight packets). The street value of the drugs at the time of her arrest was $13,000. She was charged for the offence of trafficking in a dangerous drug but subsequently absconded.

3.On 17 June 2019, about 6 years after she absconded, the appellant voluntarily surrendered to the authorities. On 23 September 2020, she pleaded guilty before M Poon J (as she then was) (the judge) to the original offence of trafficking in a dangerous drug (Count 1), and to an additional offence of failing to surrender to custody without reasonable cause (Count 2).

4.In mitigation, it was submitted that the appellant, who had previously a clear criminal record, resorted to drugs after she had been divorced and lost custody of her two children. It was said she absconded because she was suffering with depression and acted out of panic and fear. However, during this period, she freed herself of her drug addiction and took up gainful employment to help raise her children. She also cared for her former husband after he had suffered a stroke. At the time of sentence, the appellant was 47 years of age and her two children were doing very well, with one at university and the other at high school. It was also explained that she surrendered herself to the authorities because she knew she had done wrong and had to be dealt with for the offence she committed. Furthermore, her children had grown up and they could now be taken care of by her former husband.

5.On 30 September 2020, the judge sentenced the appellant to a total term of 5 years and 7 months’ imprisonment. She arrived at the sentence as follows. For the offence of drug trafficking, she adopted a starting point of 7 years’ imprisonment for the total of 18.66 grammes of Ice narcotic, according to the then relevant sentencing guidelines in Attorney-General v Ching Kwok Hung.[1] We note on a strict arithmetical calculation, the starting point is 7 years and 5 months’ imprisonment. She then enhanced the starting point by 6 months to reflect the cross-border factor, given that the appellant had imported the drugs into Hong Kong.[2] She discounted the sentence by 6 months to allow for 0.76 gramme of the drugs for the appellant’s personal consumption. She further discounted the sentence by 25% for her guilty plea, which had been delayed because she had absconded, to 5 years and 3 months’ imprisonment. For the offence of failing to surrender to custody, she adopted a starting point of 6 months’ imprisonment which she reduced by one third for the appellant’s guilty plea to 4 months’ imprisonment. She ordered that this sentence be consecutive to the sentence for the offence of drug trafficking.

6.By section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, it is an offence to unlawfully traffic in a dangerous drug. Section 2 provides that the meaning of “trafficking”, in relation to a dangerous drug, includes “importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and traffic in a dangerous drug shall be construed accordingly.” The maximum penalty for the offence on conviction on indictment is a fine of $5 million and imprisonment for life.

7.The offence provision for drug trafficking is wide in scope and broadly targets importing and exporting drugs into and from Hong Kong, the general dealing of drugs and possessing drugs for the purpose of trafficking.

8.Leave was granted as to the appropriateness of enhancing the appellant’s sentence for an “international element”, given the quantity of drugs involved and the nature and circumstances in which she had brought the drugs into Hong Kong.[3] It was observed that as the definition of “trafficking” of dangerous drugs included “importing into Hong Kong”, it raised for consideration whether importing dangerous drugs into the jurisdiction was already reflected in the gravamen of the offence, and therefore it would be unfair to enhance an offender’s sentence for something that had already been taken into account when determining the starting point. Relevant to this issue was what constituted an “international element” in order to be an aggravating factor in the offence of trafficking in dangerous drugs.

The appellant’s submission

9.Ms Queenie Ng, who appears with Ms Teresa Yu, for the appellant, submitted that the judge erred in enhancing the starting point for the “international element” when the circumstances of the offence simply involved the appellant bringing the drugs across the border from mainland China into Hong Kong. It was her submission that an “international element” as an aggravating factor meant something more than merely bringing drugs across the border, and should be confined to large-scale and well-organized international crime. To determine whether there is an international element, the court should consider all the circumstances, not merely whether drugs were taken across the border but also the quantity of the drugs, the manner of trafficking, the nationality of the traffickers (whether the person has any connection with Hong Kong), and the purpose of the importation of the drugs (whether they are for personal consumption or disseminating to others).

10.She argued that the nature and degree of a defendant's involvement should be assessed in order to consider whether any international element is involved in the drug trafficking: HKSAR v Ali Qasim[4] and HKSAR v SK Wasim.[5] She contended in the present case there was no international element present because (1) only a relatively small quantity of drugs were involved; (2) there was no evidence suggesting that the appellant was part of an international drug syndicate; (3) she did not import the drugs for reward; (4) she was connected to Hong Kong and therefore the sole reason for entering into Hong Kong was not for drug trafficking. She submitted it was therefore inappropriate to enhance the sentence of the appellant based on the presence of an international element.

11.Ms Ng further argued that as the definition of “trafficking” included “importing into Hong Kong” the enhancement of the sentence for this factor constituted double punishment because the importation of the drugs was the basis of the offence. She distinguished HKSAR v Rwakibale Aheebwa Peter,[6] where in the context of exporting dangerous drugs the Court of Appeal[7] rejected the argument that the enhancement for an international element was tantamount to double punishment. She submitted that the sentence enhancement there was simply not based on the act of importing drugs itself, but that all the circumstances of the case were taken into account.

12.Ms Ng submitted that dealing in drugs for trade and having them for personal consumption were different in terms of culpability. She pointed out that the sentence tariff for drug trafficking was based on the offender dealing in drugs, not possessing them for personal consumption. Therefore, there should not be an enhancement for importation of drugs for personal consumption or for a small quantity of drugs. In such circumstance, a considerable discount in the sentence should be afforded to a defendant.[8]

13.Ms Ng also submitted that in the circumstances of the case, particularly the quantity of drugs involved, the enhancement of 6 months’ imprisonment was manifestly excessive. She referred to HKSAR v Choi Chun Wo,[9] where the Court of Appeal held that the level of enhancement should be just and proportionate. In that case, enhancing the sentence by 3 months was held to be appropriate for 5.26 grammes of Ice. In HKSAR v Dong Juan, [10]the defendant admitted importing 50.1 grammes of Ice across the border from mainland China to Hong Kong for the purpose of trafficking, and it was held that enhancement of the starting point by 2 months was appropriate. It was submitted that in the appellant’s case the appropriate enhancement should not exceed two months.

14.Finally, Ms Ng also noted that the judge did not provide any basis for the enhancement of 6 months and, referring to HKSAR v Herry Jane Yusuph,[11] submitted that in the absence of any analysis as to the role and culpability of the appellant and the detailed basis for enhancement, enhancing the starting point for the international element (cross-border factor) was not justified.

The respondent’s submissions

15.Mr Jonathan Man, who appears with Ms Phenix Tse, for the respondent, pointed out that the offence of trafficking in a dangerous drug as presently defined was enacted in 1968. Previously, the acts of illegal importing, exporting and other ways of dealing in or with a dangerous drug were separate offences, where the maximum punishment for the illegal import or export of a dangerous drug was 15 years’ imprisonment, while the maximum punishment for supplying or procuring a dangerous drug was 10 years’ imprisonment.[12] It is argued that in light of the previous penalty provisions, it appears the act of importing or exporting a dangerous drug had been viewed as more serious than the supply and procurement of it. However, what is absent from this argument is that the ambit of the composite trafficking offence was broader and the penalty was increased to a maximum of life imprisonment.

16.Mr Man referred to a number of cases to illustrate that, after the introduction of the composite trafficking offence, Hong Kong courts continued to treat trafficking by importation as more culpable by regarding it as an aggravating feature in sentencing.[13] It was submitted that the courts did not make any distinction as to the nature and quantity of the drugs, nor whether an international drug syndicate was involved. The fact that drugs had been brought across the border into Hong Kong, regardless of these factors, inevitably increased the local drug supply. Consequently, it was considered that the very act of importation should therefore be deterred and punished more severely than local trafficking. The object being to prohibit importation.[14]

17.It was advocated that as the law developed, the international element as an aggravating factor could also be found in various circumstances where the accused is not personally bringing the dangerous drugs across the border. For example, facilitating importation by collecting a parcel sent from abroad, knowing it contained dangerous drugs;[15] the involvement of foreign drug traffickers or members of an international syndicate in the local supply of drugs,[16] or the presence of evidence that the trafficking is part of an international operation.[17] Thus, the international element is fact sensitive, and factors such as the nature and scale of operation, the nature and degree of planning are relevant considerations in sentencing. However, the respondent submitted that the rationale behind enhancement of a sentence for direct importation is different from other aspects of the international element, and direct importation should be considered as a separate and standalone factor.

18.The respondent argued that the sentencing guidelines that apply to the trafficking offence have been formulated with the least culpability in mind, such as a courier or storekeeper, and that a sentence should be increased if there is an international element in which the defendant is involved. It was submitted that the sentencing tariff does not reflect the gravamen of trafficking by importation[18] and that an enhancement of sentence is generally justified and necessary whenever dangerous drugs are brought across border into Hong Kong.

19.However, it was accepted by the respondent that when the imported drugs were for personal consumption and there was no risk of them being supplied to the public, the offence may not be aggravated by the element of importation. In this regard, the courts have generally held that when the imported drugs are for personal consumption, this is a strong mitigating factor.[19]

20.Mr Man submitted that in the circumstances of the present case an enhancement to the appellant’s sentence was appropriate for the aggravating factor of importation. He pointed out that the appellant had entered Hong Kong from mainland China with 18.66 grammes of Ice and she admitted under caution that only about 0.76 gramme was for her personal consumption. It was submitted that the appellant was not merely a trafficker in a technical sense simply because she imported the drugs, but was a trafficker in the true sense as she intended to supply the drugs to others. By bringing the drugs into Hong Kong, she was increasing the local supply, and together with her intention to supply, her conduct should be viewed more seriously than someone involved in a local trafficking case. The fact that no evidence showed she was part of an international drug syndicate did not reduce her culpability.

21.Referring to Choi Chun Wo, Mr Man emphasized that sentence enhancement must be sufficient for deterrence. In that case, it was held that an enhancement of 3 months for the international element was appropriate for importing 5.26 grammes of Ice (about one third of the amount imported by the appellant), in which a significant portion (28.5%) was for personal consumption. In the present case, after reducing the amount for personal consumption, the amount of drugs involved was still significant (18.66-0.76 = 17.9 grammes), and therefore 6 months’ enhancement as suggested in the guidelines in HKSAR v Chung Ping Kun,[20] was just and proportionate, bearing in mind the need for deterrence.

Discussion

22.In SK Wasim, after a review of the relevant authorities, we stated that “the involvement of an ‘international element’ in a drug trafficking case is an aggravation of the offence that may warrant an enhancement of the sentence imposed on the offender. Whether ‘an international element’ is involved will be fact and case sensitive and therefore may manifest itself in a variety of ways.”[21]

23.The courts in Hong Kong have long recognised that the importation of dangerous drugs is a serious aggravation of the offence of drug trafficking because it involves the international smuggling of the quantity of drugs imported finding its way into the local drug market and putting the people and the community at risk of substantial harm.

24.In R v Chan Kin Mei,[22] which involved the importation of 258 grammes of morphine from mainland China, Power JA remarked:[23]

“This was, however, not a case of possession of dangerous drugs for the purpose of unlawful trafficking such as falls squarely within the Chan Chi-ming guidelines. It was the more serious charge of trafficking and it was, moreover, trafficking which involved the international smuggling of dangerous drugs - an offence which this Court has always regarded as one of the utmost seriousness.”

25.In R v Lee Chiu Pang,[24] the applicant, who was found exporting 14.36 grammes of heroin to Japan, argued that exporting to a foreign country should not be an aggravating factor to be taken into account as it was already taken into account in the sentencing guidelines. The applicant relied on what Silke VP said in setting the guidelines in Lau Tak-ming that: “We bear in mind that we are dealing with the trafficker and that the international trade in drugs needs to be actively discouraged”.[25] Mortimer JA soundly rejected the argument:[26]

“[Silke V-P] is not there saying that those who export and import drugs are not to be dealt with more severely than the local trafficker in Hong Kong. Clearly those who take drugs across borders must be dealt with more severely. As a member of the international community, here in Hong Kong we regard that as a particularly serious circumstance of an offence.”

26.In HKSAR v Abdallah,[27] the Court of Appeal examined the concept and development of an international element as an aggravating factor in the trafficking of dangerous drugs. Stuart-Moore VP, giving the judgment of the Court, acknowledged that:[28]

“It has long been accepted that the international element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes, whereas ‘local’ offences, confined to trafficking in Hong Kong, will usually result in lower starting points for about the same quantity of heroin or cocaine.”

27.In examining the significance of an international element as an aggravation of the offence of drug trafficking, Stuart Moore VP observed “that international couriers have almost always been given longer prison terms than couriers in similar quantities whose offences have not involved an established international element.”[29] He said:

“30. Dealing with the international element in the trafficking of dangerous drugs, which will include trafficking across the border with the Mainland, we digress to add that in HKSAR v Hong Chang Chi,[30] this Court said:

22. When it comes to importing drugs from other jurisdictions into Hong Kong, the public interest demands that the message should be made more clearly than in almost any other situation. Drug traffickers from abroad, importing drugs into Hong Kong, should plainly understand that they will receive no sympathetic consideration whatsoever on account of their status as foreigners or, as in this case, on account of their incarceration some distance from home. On the contrary, in cases of this kind, the very act of importation from abroad, is an aggravating factor. Those who live outside this jurisdiction, such as the applicant in the present case, must be disabused of any notion that Hong Kong is anything other than resolute in dealing with such offences.” (Citation added)

28.He made the point that an international element in trafficking had been long recognised as an aggravating feature. He said:

“35. R v Lau Tak Ming was decided almost 19 years ago and, with the passage of time, with the advent of a steady number of cases of trafficking in very substantial quantities of drugs, and with an increasing danger of disparity in sentencing for large quantities, disparity of a kind that is understandably causing grievance amongst those sentenced, a need has been demonstrated to rationalize the sentences for those who have trafficked in large quantities of heroin, taking into account whether there has or has not been an international element and, equally importantly, whether other aggravating factors are present (such as those itemized at para.42 below). In this regard, it is necessary to address the extent to which aggravating circumstances should lead to enhanced sentences in order to reflect the general policy of the courts to impose greater sentences on those who import or export heroin or cocaine and on those, to take two other examples, who have trafficked in dangerous drugs on a previous occasion or who have played an organizing role in such activities above the level of mere couriers and storekeepers.”

29.It was confirmed in Abdallah that an international element will be an aggravating factor, amongst others, calling for the enhancement of the starting point.[31] In HKSAR v Chung Ping Kun,[32] broad guidelines were suggested for the level of enhancement for the international element.

30.In Ali Qasim, we raised our concern about the danger of a label such as “international element” being generally applied without due regard to the particular facts and circumstances of the case in order to determine whether an international element is present, and if so, to what degree in respect of the defendant’s offending:[33]

“… the danger of a label such as ‘international element’ is that it can sometimes obscure the factual differences that exist between cases involving the importation (or, for that matter, exportation) of dangerous drugs. It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaborate arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong International Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instruction to collect a parcel posted from abroad which he knows contains dangerous drugs. The first defendant can be said to be actually importing dangerous drugs into Hong Kong, while the second defendant is generally aiding and abetting someone else’s active importation; although, of course, the evidence may sometimes establish that he himself is the importer. Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ.”

We continued:[34]

“In distinguishing between these two types of trafficking, we are not to be taken as suggesting that the conduct of a defendant who collects a parcel containing dangerous drugs from a post office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong. We can envisage circumstances where someone who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels, may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession. Much will depend on the facts of the case and the extent of the involvement of the defendant. However, we would caution sentencers that simply because the label of ‘international element’ can be applied to a defendant’s trafficking of a kilogram of heroin or cocaine narcotic because it has come across the border, and he is connected with the offence, does not automatically mean that he must receive an enhancement of sentence of two years’ imprisonment.”

31.In certain circumstances, the importation of dangerous drugs may not invoke the aggravating factor of an international element as seen in HKSAR v Ko Wai Shing.[35] In that case, the offender had purchased over the Internet a relatively unknown dangerous drug, gamma-butyrolacetone (GBL), an industrial chemical which when consumed becomes gamma-hydroxybutric acid (GHB). These drugs can have serious psychotropic and other deleterious effects when consumed. It was accepted that the GBL in that case had been imported without any elaborate or secretive arrangements being involved; and that the sole basis of conviction for trafficking had been that the appellant imported the GBL across the border into Hong Kong. In the unusual circumstances in that case, this Court held that where:

“… there was no attempt to disguise the fact or nature of the importation, which is the sole basis of conviction for trafficking, and where there is no suggestion that the drug is to be trafficked within Hong Kong, or possessed for that purpose, then there is no warrant for any enhancement of sentence for the international element. That is not to say, however, that where a defendant brings drugs across the border, which by their quantity or circumstances, or by the degree of planning or the involvement of others in smuggling the drugs, are clearly intended for a purpose other than the defendant’s own consumption, an enhancement for the international element does not apply.”

32.This was consistent with previous pronouncements by this Court that where a drug is imported for personal consumption, in part or whole, is very much a factor to be taken into account in mitigation of sentence. The principle was succinctly stated in HKSAR v Ngai Ho Ting[36] as follows:[37]

“In a case of trafficking in dangerous drugs by importation the question of whether the whole or a significant part of the dangerous drugs were for the consumption of the trafficker is a matter relevant to sentence. This has been recognised since the decision of this Court in R v Chan Mung lung [1992] 2 HKCLR 127 where it was said at page 130, lines 17-19:

‘The question of whether or not the applicant was bringing the drugs into Hong Kong for his own consumption or for re-sale was highly relevant to the question of the proper sentence to be passed and, if they were only for his own use, was a strong mitigating factor.’”

33.See also R v Chung Kam Fai;[38] HKSAR v Chong Chee Meng;[39] and HKSAR v Chow Kam Lung.[40]

34.It is clear from our review of the authorities, that the importing or exporting of drugs is regarded more seriously than the usual dealing of drugs locally. Importing drugs into Hong Kong fuels the local drug market and has serious and deleterious consequences to the people and the community of Hong Kong. Exporting drugs from Hong Kong has the same effect on the receiving jurisdiction which is regarded with the same level of seriousness as if imported in accordance with international comity.

35.An appropriate definition of an international element was provided in SK Wasim[41] by this Court as follows:

“38. For an international element to be an aggravating factor, it must go to the aggravation of the offence as alleged against the defendant. It is not enough that the dangerous drugs were imported or to be exported at some time, unless it can be shown that it is a feature of the offence for which the defendant has been charged. It can manifest itself in a variety of ways, such as the importation or exportation of dangerous drugs into and out of Hong Kong or the assisting or facilitating such importation or exportation; or the involvement of foreign drug traffickers or members of an international drug syndicate in furthering the drugs trade in or through or out of Hong Kong. Whatever the case, for there to be an international element involved in the offence of drug trafficking, it must be apparent from the facts as found or agreed in the case alleged against the defendant.”

36.We would stress that an aggravating factor, such as an international element, is a question of fact and degree which needs to feature in the conduct of the defendant for the offence for which he has been convicted. There are a variety of circumstances and shades of degree in which it may arise. We reiterate this Court’s observations in Ali Qasim which we have earlier referred to.

The present case

37.In the present case, the appellant brought drugs into Hong Kong from mainland China. Whilst some of the drugs were for her personal consumption, the vast majority of them were for the local drug market. To this extent the appellant’s offending was aggravated by an international element. The broad guideline suggested that the level of enhancement for this aggravating factor is based on the quantity of narcotic involved. For “up to 250 grammes” it is 6 months. We consider the appropriate enhancement in the circumstances of this case should be 3 months. Like the judge we adopt a starting point of 7 years’ imprisonment which we enhance by 3 months for the international element, making a notional sentence after trial of 7 years and 3 months’ imprisonment. We also allow for the reductions as determined by the judge. We reduce the notional sentence after trial by 6 months, as did the judge, since some of the drugs were for the appellant’s personal consumption, to 6 years and 9 months’ imprisonment, which is further reduced by 25% for the appellant’s guilty plea to 5 years’ imprisonment.

38.It follows from what we have said that we allow the appeal and set aside the sentence on Count 1, for which we substitute a sentence of 5 years’ imprisonment. There is no reason for us to disturb the sentence on Count 2 , which should run consecutively to the sentence on Count 1. The total sentence the appellant is, therefore, to serve is 5 years and 4 months’ imprisonment.

Mr Johnathan Man, DDPP, and Ms Phenix Tse, SPP, of Department of Justice, for the respondent

Ms Queenie Ng, instructed by Tsangs, assigned by the Director of Legal Aid, for the appellant