Secretary for Justice v. Pastana Carvalho Andreza Narely

CAAR 11/2021

[2022] HKCA 1042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 11 OF 2021

(ON REVIEW FROM HCCC NO 354 OF 2019)

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REASONS FOR JUDGMENT

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

1.The respondent pleaded guilty before a magistrate on 21 October 2019 to a single charge of trafficking in 959 grammes of slurry containing 634 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was duly committed to the High Court, where she appeared before Campbell-Moffat J (“the judge”) on 11 June 2020 for sentence. Having confirmed her previous plea, the respondent was eventually sentenced, on 5 July 2021, to 10½ years’ imprisonment.

2.On 27 July 2021, Poon CJHC granted leave to the Secretary for Justice to review the respondent’s sentence, whereupon formal application, pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, was made on 2 August 2021. On 5 July 2022, having heard from counsel for the applicant and the respondent, we allowed the application, set aside the sentence and in substitution passed a sentence of 12½ years’ imprisonment. These are the reasons for our decision.

The facts

3.On 26 December 2018, the respondent was intercepted by Customs officers upon her arrival at Hong Kong International Airport on a flight from Brazil, via Ethiopia. At the time, she was seven months’ pregnant. Upon a body search, 12 packets containing a total of 634 grammes of cocaine narcotic valued at HK$992,565 were found concealed in the brassiere worn by the respondent. She admitted under caution that she had committed the offence on the instructions of someone who had promised to give her a reward in due course, if she successfully brought the brassiere into Hong Kong.

4.Although she initially denied knowing that the brassiere contained dangerous drugs, the respondent admitted at committal, and again in the High Court, that she possessed the drugs in question for the purpose of unlawful trafficking.

Mitigation

5.Counsel appearing for the respondent before the judge gave a detailed account of her personal circumstances and family background. The reason given for the commission of the offence was her financial difficulties in providing for her family and, in particular, in settling the medical bills for her mother as well as her own pregnancy; the father of her child having refused to assume any financial responsibility for her predicament.

6.Counsel for the respondent submitted, in addition to her early plea and previous good character, that she had cooperated with the authorities by providing information to the Customs & Excise department in two non-prejudicial statements; and had further assisted Father Wotherspoon’s anti-drug trafficking “campaign” by writing two letters, which had been placed on his website. Counsel urged particular leniency, given the difficulties and deprivations of a normal childhood, which the respondent’s newly born son had experienced whilst in prison and would continue to experience while his mother was incarcerated in Hong Kong. Although the Customs & Excise department had formally made a statement that the respondent’s information had not been of any practical use, it was contended that the person who had lured the respondent into committing the offence had subsequently been arrested in Brazil after the information about her had been transmitted to the authorities there.

Reasons for sentence

7.The judge, in sentencing, referred to the guidelines set out in HKSAR v Abdallah[1] where, in respect of trafficking in between 600 and 1,200 grammes of cocaine, the range of sentence after trial was stipulated between 20 and 23 years’ imprisonment. Having considered the quantity of dangerous drugs involved and the role of the respondent, who was described as a “drugs mule”, the judge adopted a starting point of 20 years’ imprisonment, which she enhanced by 1 year to reflect the international element in bringing the drugs across the border into Hong Kong.

8.The judge was well aware of the personal circumstances of the respondent, saying[2]:

“…I have read the various documents submitted and I have heard…all that Ms Mohammed has said on your behalf about your background and your circumstances today, the considerable efforts you have made to rehabilitate whilst caring at the same time for your new-born son and the assistance that you have given. There is little more that you could possibly have done to show your genuine remorse.

Above all, I am reminded of your role as a parent and of your young son who is born in Hong Kong and who is thereby entitled to our special consideration.”

She then reduced the starting point by 10 years to 11 years’ imprisonment, before giving a further reduction of 6 months for the efforts the respondent had made in furthering Father Wotherspoon’s campaign. In the result, the respondent received, upon her plea of guilty, a sentence of 10½ years’ imprisonment, which represented exactly half of the original enhanced starting point.

Grounds of application

9.The application for review of sentence was made on the basis that the sentence imposed on the respondent was wrong in principle and/or manifestly inadequate. In particular, it was averred that:

(a)  The overall enhanced starting point of 21 years’ imprisonment adopted was a departure from established sentencing guidelines, which arithmetically should have been 21 years and 5 months’ imprisonment, without any explanation or good reason for such a departure being given by the judge;

(b)  The 10-year discount accorded by the judge for the factors of post-arrest assistance and her personal circumstances was overly generous and wrong in principle;

(c)  The 6-month discount given by the judge for the respondent’s participation in Father Wotherspoon’s campaign was overly generous and wrong in principle; and

(d)  The ultimate sentence of 10½ years’ imprisonment was wrong in principle and manifestly inadequate.

10.Ms Catherine Ko, with her Mr Fergus Chau, on behalf of the Secretary for Justice, submitted that, on a strictly arithmetical basis, the appropriate starting point should have been 20 years and 2 months’ imprisonment in respect of trafficking in 634 grammes of cocaine. The appropriate level of enhancement for the international element should, again on a strictly arithmetical basis, have been 1 year and 3 months’ imprisonment. Yet the judge had given no reason for departing from these figures arrived at arithmetically. Accordingly, the enhanced starting point adopted by the judge was unduly lenient and failed properly and adequately to reflect the seriousness of the offence.

11.In relation to the 10-year discount, the applicant submitted that the family circumstances of an offender did not amount to a valid mitigating factor of any significance, particularly on a conviction for so serious an offence. Yet, the judge’s repeated emphasis during mitigation and sentence on the importance of the welfare of the respondent’s child clearly suggested, notwithstanding that the judge never explained the amount of discount she accorded the respondent for this factor, that it formed an important part of her reasoning in arriving at the 10-year discount. Ms Ko argued that a convicted drug trafficker, who knew she was pregnant when she deliberately embarked on trafficking in dangerous drugs, could not expect to “pray in aid the need to look after her (child), unfortunate for the (child) though that may be”: see HKSAR v Wong Cheuk Lam[3].

12.As to the respondent’s post-arrest assistance, the Customs & Excise department had concluded in a formal, considered statement presented to the court, in accordance with established practice, that the assistance “did not lead to any practical use, fruitful result nor assistance to the authorities”[4]. Yet the judge nevertheless considered, in the face of this conclusion from the law enforcement authority concerned, that the information provided “must be incredibly valuable to other authorities, and I accept that”[5]; and that the respondent “…gave as much as she possibly could…. And it was concrete”[6].

13.It was contended that the reduction of 10 years from an enhanced starting point of 21 years’ imprisonment, representing a 47.6% discount, was wholly unwarranted in the circumstances. Even if the Court were to accept that the information provided by the respondent was of practical use, the appropriate discount should not have been more than 37% (including the one-third discount for the respondent’s early plea). Ms Ko cited other decisions of this Court where roughly similar discounts had been given in such circumstances: namely, HKSAR v Tsang Ka Wing[7]; HKSAR v Kilima Abubakar Abbas[8]; HKSAR v Ilmayanti (Dewi) [9]; and HKSAR v Godson Ugochukwu Okoro[10].

14.The applicant further submitted that the 6-month discount given to the respondent for participating in Father Wotherspoon’s anti-drug trafficking campaign was likewise overly generous. Whilst a sentencing court has a discretion to allow a discount for a defendant’s participation in the campaign, such discount should not be more than 3 months[11].

15.Accordingly, it was argued that the ultimate sentence of 10½ years’ imprisonment was wrong in principle and manifestly inadequate. Applying a 37% discount to an enhanced starting point of 21 years and 5 months’ imprisonment for the respondent’s guilty plea and post-arrest assistance, and a further maximum discount of 3 months for participating in Father Wotherspoon’s campaign, should have produced a sentence of 13 years and 3 months’ imprisonment. The circumstances of the present case were not so exceptional as to justify a departure from the well-established principles for sentencing defendants in serious cases of drug trafficking.

The respondent’s reply

16.Ms Priscilia Lam, on behalf of the respondent, submitted in response that whilst the sentence imposed by the judge could be described as relatively lenient, it was neither wrong in principle nor manifestly inadequate.

17.The overall enhanced starting point adopted by the judge was only 5 months less than it should have been on an arithmetical basis and was well within the judge’s sentencing discretion; bearing in mind the respondent’s role and culpability, as discussed in HKSAR v Herry Jane Yusuph[12]. The judge had, in the circumstances, properly exercised her discretion within reasonable parameters and such reduction was proportionate to the criminality involved.

18.In response to the contention that the 10-year discount for the respondent’s post-arrest assistance and her personal circumstances was overly generous, Ms Lam submitted that if one assumed an enhanced starting point of 21 years’ imprisonment was appropriate, then a 7 years’ discount (representing a full one-third) would certainly be the discount for the early indication of plea, which left a further 3 years’ reduction for the respondent’s post-arrest assistance, humanitarian considerations and the genuine efforts to rehabilitate herself made by the respondent whilst in prison[13]. Such a discount could not be said to be wrong in principle or excessively generous.

19.Ms Lam pointed out that at the sentencing hearing before the judge[14], defence counsel had said, without demur from prosecuting counsel (who was not Ms Ko or Mr Chau), that although the Customs & Excise department had formally stated that the respondent’s post-arrest assistance was not of any practical use, the Brazilian authorities did not in fact deny that the arrested person identified in a Brazilian news article, dated 28 August 2020, was the woman referred to in her non-prejudicial statements as the person who had lured the respondent into committing the present offence. Although, by that stage, the judge had already made her views clear as to the respondent’s assistance, prosecuting counsel adopted what she had described as a “neutral” stance on whether it had been of practical use.

20.In terms of the percentage discount for post-arrest assistance, Ms Lam submitted that a discount of 40% (including the one-third discount for a timely guilty plea) could be justified, since the respondent had clearly done, and was found to have done, her best to assist the authorities, even going so far as to ask the Brazilian Consulate in Hong Kong to verify the information she had provided.

21.As for the humanitarian aspects of the case, Ms Lam argued that this was a genuine, exceptional case which justified a merciful course by the court. She cited the following statement of the Court in HKSAR v Lkhaijav Bayanmunkh[15]in support of her position:

“How far a court can go in extending mercy to an offender in achieving a balanced sentence will inevitably vary from case to case, taking into account of the crime the offender has committed and his personal circumstances… Thus a just sentence is arrived at by a proper application of legal principle balanced with a consideration of personal circumstances. Justice will not normally be served by departing from proper sentencing principles as a sympathetic response to a prisoner’s personal circumstances. We qualify this last statement because we recognise that our courts are not just courts of law but courts of justice and circumstances may arise, usually post-sentence, where justice and the public interest require an immediate response which only the court can give.”

22.As for the final discount of 6 months’ imprisonment in respect of the respondent’s participation in Father Wotherspoon’s campaign, Ms Lam submitted that, whilst it was more than it perhaps should have been, it was only in HKSAR v Cherop Caroline[16] that the Court had clarified that a discount of 3 months represented the limit of what might be given for this factor; however, that decision was only handed down on 2 August 2021, a month after sentence was passed in the present case. Since the respondent’s family in Brazil had opened a Facebook account for her to warn people against falling into the same trap, there was an element of risk to her family in providing such information, which the judge had been prepared to accept; accordingly, she had properly exercised her discretion in granting a higher discount than 3 months for this factor.

Discussion

23.By any yardstick, the sentence passed in this case was extremely lenient. In its result, the respondent received a sentence of half of what the judge considered was the appropriate enhanced starting point for sentence after trial for someone trafficking in 634 grammes of cocaine narcotic across the border from South America into Hong Kong. For both the discipline and consistency of Hong Kong’s sentencing policy where international drug trafficking is concerned, as well as for the respondent herself, the consequences of the judge’s lenient sentence are highly regrettable.

24.The sentencing process of the judge defied, and was at odds with, a number of important and well-recognised sentencing principles. The first such principle concerns the importance, particularly in offences of drug trafficking, of consistency of sentence by the courts. In Herry Jane Yusuph, which must now be regarded as the leading case on the approach to sentencing in cases of drug trafficking, and which preceded the present sentence by some seven months, the Court considered two particular facets of sentencing for such offences: (i) the difficulty in distinguishing between the facts of different cases; and (ii) the extremely serious nature of the offence and the acute danger which such offences pose to the whole fabric and functioning of society. The Court went on to hold[17]:

“It is because of these two particular facets of sentencing for offences of this nature that consistency in sentencing in trafficking cases becomes so important. For, if one cannot readily distinguish between different cases of trafficking except as to the quantity of the drug being trafficked, and if personal mitigation has little weight in sentencing for such a crime, then consistency in sentence becomes all the more imperative. Where, for example, there is nothing otherwise to distinguish between two couriers, one, an impoverished defendant arriving at Hong Kong International Airport from South America carrying a kilogramme of cocaine secreted within his body, the other, an indebted defendant arriving from Africa with a kilogramme of cocaine hidden inside his suitcase, it is important that they should be dealt with in a similar way so far as determining the starting point for their offences. As the Court in HKSAR v Leung Wai Man[18] put it:

The final consideration we wish to mention is that of consistency in sentence. Underpinning our system of criminal sentences is a recognition that like offences should attract like sentences. Unjustified disparity in sentencing undermines confidence in the justice system, and it is important that there be consistency in the category of offence where individual mitigation tends, for policy reasons, to count for little.”

In truth, the importance of consistency in sentences where drug trafficking is concerned is a principle as old as the guidelines on drug trafficking themselves, having been first articulated in Chan Chi-ming v R[19] over forty years ago, where the Court held[20]:

“Fairness to convicted persons requires a substantial degree of consistency in the punishment to be imposed for similar offences”.

25.This principle was further explained in HKSAR v An unknown person alias Stojanovic Milka and Skopljak Sara[21] (which authority, for convenience, we shall refer to as Stojanovic Milka):

“It is true that in this category of offence, sentence is very largely based on quantity and whilst it is normally of limited avail in other categories of offence for applicants to point in respect of like offences to sentences by different courts, there is a particular need for consistency in a category of offence when individual mitigation tends, for policy reasons, to count for little, the point made by this court in HKSAR v Leung Wai Man[22] …” (Original supplied)

26.The principle of consistency of sentence in offences of drug trafficking and its central importance has been repeated time and again by this Court, culminating most recently in the above passage from Herry Jane Yusuph.

27.The second important sentencing principle, which was also referred to in the above passage from Stojanovic Milka and similarly infringed in the present case, was that personal circumstances count for very little in offences of this magnitude. This has been the repeated theme of the appellate courts since it first found articulation in Silke VP’s celebrated statement in R v Lau Tak-ming & Another[23]:

“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”.

28.It is clear from the facts of this case that the respondent was used by others to traffick dangerous drugs from Brazil to Hong Kong because she was heavily pregnant; moreover, a perusal of the transcript of mitigation and sentence suggests that the ploy achieved its desired objective, for it attracted considerable sympathy from the judge, partly for the respondent’s own predicament but principally for that of her child, born two months after her arrest. Yet the judge purported to acknowledge the principle when, in her sentencing remarks, she correctly stated[24]:

“But you cannot be treated wholly differently from others who come before the courts. Otherwise, they can properly say they have been treated unfairly and if this court is unduly lenient, drug-trafficking syndicates will target pregnant women in debt to be their mules”.

Unfortunately, the judge’s eventual sentence was at odds with the very principle she advocated. We note, for example, the facts of HKSAR v Omogo Stephen Okuta[25], where the appellant was similarly arrested on arrival at Hong Kong International Airport for trafficking in 626 grammes of cocaine narcotic (8 grammes less than the respondent) and sentenced to 14 years’ imprisonment on a plea of guilty from the same enhanced starting point of 21 years’ imprisonment. His appeal was ultimately dismissed by this Court, yet he may well wonder why the respondent in the present case should have been dealt with so differently and more leniently.

29.As we have said, it is clear on reading the transcript of exchanges between the court and counsel that the judge was particularly influenced by the fact that the respondent had come to Hong Kong whilst pregnant and given birth to a son who, through no fault of his whatsoever, has likewise spent the first three years of his life in a prison. No one could fail to be sympathetic to the plight of the respondent’s young child. However, we have very little sympathy for the respondent whose actions placed him in this terrible position. This was not a case where, as occasionally happens, a defendant trafficks dangerous drugs into Hong Kong, unaware at the time that she is in fact pregnant. The respondent knew full well that she was seven months’ pregnant and the consequences for her and her child would have been obvious. Yet the judge, in her sentencing remarks, addressed the respondent by saying[26]:

“You of course would have absolutely no idea of the value of what you carried nor of the consequences to you of the amount of dangerous drugs you were asked to carry into Hong Kong. That is why people such as yourself are used as drug mules”.

A little later, the judge went so far as to hold[27]:

“… I also accept that the sentencing regime elsewhere in the world is far less punitive and you may not have known the risk that you were taking”.

30.With respect, we must unreservedly reject the notion that the respondent would not have fully understood the seriousness of what she was doing and the enormity of the consequences of smuggling dangerous drugs across three continents if she was caught. Given how advanced her pregnancy was, she must also have realised the supreme risks she was taking for herself and her unborn child. We have little sympathy for her in this matter, given that she was no doubt prepared to use her late stage of pregnancy to avoid suspicion and enable her to enter Hong Kong without hindrance, whilst at the same time visit such appalling consequences upon the birth of her child.

31.The third important sentencing principle is that it is not, with respect, appropriate for judges to go outside the determination of the law enforcement authority’s assessment of the utility of information or assistance provided by a defendant or appellant, unless there is good reason for doing so. In Kilima Abubakar Abbas, it was said[28]:

“…one must have a measure of faith and trust in the relevant authority in Hong Kong – absent an allegation of mala fides – that the information is or is not of any actual or potential assistance, if that is what the authority says, whatever the defendant may think or have hoped for. Otherwise, the courts will be drawn into endless debates with the authority concerned, and futile wrangling between defence and prosecution, as to whether information was or was not of any actual or potential assistance, how it was treated or how it should have been treated. Far from that being a normal line of enquiry for judges to make, it should not be one for the courts at all because it is fraught with problems if the courts step out from their role in trying cases to managing the way the police or the Customs & Excise department do their job.”

And later[29]:

“… if the authority concerned forms the view that the information was of no actual or potential assistance, then, unless the papers clearly suggest otherwise, that should normally be the end of the matter. A defendant is of course always entitled to take the matter up with the Department of Justice but, again, once the view is expressed that the information or assistance was of no actual or potential assistance, then it is not for the courts to embark on an enquiry as to the cogency and validity of that decision.”

32.In the present case, there was no valid, certainly no evidential, basis for the judge to say, as she did, that the information was “concrete” and “must be incredibly valuable to other authorities”. Moreover, the production of a Brazilian news article, dated 28 August 2020, showing the alleged recruiter of the respondent reportedly arrested in Brazil in possession of 260 marijuana tablets, provides no basis for believing that this person’s arrest (even assuming it is the same person) and the respondent’s information are remotely connected.

33.We would not normally have allowed any discount for the respondent’s information or assistance to the authorities, but for one matter which might perhaps have justified the judge in according the respondent a small reduction. As Ms Lam has mentioned, right at the end of the hearing on 28 June 2021, prosecuting counsel had this exchange with the judge[30]:

“PROSECUTING COUNSEL:	… regarding whether the defendant’s information is of any practical use, I am neutral on this matter.
COURT:	No, no, no. … we don’t need another Sivan. I’m going to give the defendant whatever credit I can give the defendant.
PROSECUTING COUNSEL:	And I’m neutral on that.
COURT:	She’s still however going to serve a substantial sentence for somebody who’s got a young child.
PROSECUTING COUNSEL:	Understand. Yes, thank you.”

34.Ms Ko had understandable difficulty in explaining prosecuting counsel’s position, given the clear terms of the statement from Customs Inspector Chan Pui-yi on behalf of the department. However, it is apparent from the transcript that the judge, on hearing from defence counsel, had, at the outset of that particular hearing, already expressed her firm view that she was “going to give you all that credit”[31], as a result of which prosecuting counsel may have believed that neutrality was better than resistance. To be fair to prosecuting counsel, she may also have taken the view that the Brazilian authorities could have been more forthcoming. Whatever the position, the respondent at best did not merit anything more than a small discount for any information or assistance she had given, which Ms Ko has assessed at 37% (including the discount for plea). In the circumstances, we are prepared to agree with Ms Ko’s concession and her assessment, even though it strikes us as being on the generous side.

35.The fourth important matter of sentencing principle, which the judge did not properly apply, was the discount she afforded for the respondent’s involvement in Father Wotherspoon’s campaign. It has been made abundantly clear by this Court that 3 months’ discount for this factor, where it properly arises and is fully established by evidence, is the limit of the Court’s discretion. In Cherop Caroline, the Court said[32]:

“We also wish to stress that a discount of up to three months is neither automatic, nor is it an entitlement: indeed, three months represents the limit of what might be given for this factor and is to be regarded as exceptional”.

Although Ms Lam points out that this judgment was handed down well after the commission of the offence and about a month after sentence was passed, the same had in fact been said by the majority in Kilima Abubakar Abbas; Lunn VP making clear, in his judgment, that three months was “to be regarded as the maximum discount to be afforded to an applicant in similar circumstances”[33]. This principle had been repeated and followed in subsequent cases; for example, HKSAR v Camara Aboubacar[34].

36.At least the letters written by the respondent were placed before the judge so that she could read and assess for herself the level of assistance given to the campaign, as stipulated in Cherop Caroline. Having read the respondent’s letters ourselves, we would not have given any more than two months’ discount for her involvement in Father Wotherspoon’s campagn. We were frankly more impressed by the efforts made by the respondent and her family to propagate on social media her unfortunate story, together with photographs of the respondent, and to warn others of specific dangers associated with her experience.

37.With respect to the judge, she did not properly give heed to any of these four matters of principle when sentencing the respondent, with the result that her sentencing discretion seriously miscarried, leading to a sentence that was plainly and manifestly inadequate. Ms Lam has mounted a valiant defence of the sentence, in which she effectively argued that while the sentence was inadequate, it was not manifestly inadequate. Regrettably, despite her able submissions on the respondent’s behalf, we must unreservedly reject them. It accordingly falls to us to consider the question of sentence afresh in accordance with established principles.

38.However, before doing so, we wish to make clear that there is always room for sentencing discretion, even where sentencing guidelines are involved. However, because of the first two principles discussed above, the room for manoeuvre of a judge in sentencing in drug trafficking cases is necessarily limited. In HKSAR v Conde Nassou[35], the Court remarked that[36]:

“Because drug trafficking cases, especially those involving international couriers, can have great factual similarity there may be nothing in either the circumstances of the commission of the offence or the background of the offender which calls for the judge to depart from a mathematically determined starting point”.

In the present case, the judge was able to manoeuvre to some extent by reducing the starting point and the enhancement for the international element by five months to reflect the respondent’s role and culpability. She was perfectly entitled to do so and we accept Ms Lam’s submissions on this point. Indeed, we note that the judge in Omogo Stephen Okuta had done exactly the same on almost identical quantities of cocaine narcotic in respect of an impoverished appellant arriving at Hong Kong International Airport from Kenya (apparently also motivated, we note, to earn money for his mother’s medical expenses), and no criticism of this approach was made by the Court. Indeed, we think the exercise of the judge’s leeway in respect of the starting point and its enhancement is in conformity with the approach outlined in Herry Jane Yusuph.

39.Sentencing is the most complete and all-embracing example of the exercise of judicial discretion. But, like all judicial discretions, it must be exercised in a principled way. Where a judge flouts established sentencing principles, or pays lip service to them but then applies them in such a way as to negate their very purpose, then the resulting sentence is not a proper exercise of the discretion and is likely to be arbitrary and unsound.

40.We would adopt the same starting point as the judge of 20 years’ imprisonment in respect of the trafficking of 634 grammes of cocaine narcotic. We would also be prepared to accept the enhancement she adopted of 1 year for the international element. The enhanced starting point, or notional sentence after trial, will remain at 21 years’ imprisonment.

41.We would not take issue with Ms Ko’s suggestion of a discount of about 37% from the starting point to reflect the respondent’s early plea and the information or assistance which she gave to the authorities; although we are bound to repeat that, had it not been for prosecuting counsel’s concession at trial, we would not have given the respondent any discount beyond the one third to which she was entitled for her early plea. The sentence is thus reduced to 13 years and 3 months’ imprisonment. Finally, we would grant the respondent a further discount of 3 months for the assistance she has given to Father Wotherspoon’s campaign and for her own, and her family’s, efforts in publicising her plight. The sentence which should ordinarily have been imposed on the respondent for this offence is, therefore, one of 13 years’ imprisonment.

Discount upon application for review

42.However, it must be acknowledged that such a sentence represents a 2½ year increase on the original sentence passed by the judge. As we remarked earlier, the consequences where a sentence is judged to be manifestly inadequate upon review are highly regrettable for the defendant/respondent as well. We are conscious that while we should impose the sentence which ought to have been imposed, we can allow some concession for the fact that the sentence is substantially more than the respondent was unfortunately led to believe she would serve, through no fault of her own.

43.In Secretary for Justice v Leung Yuet Hung[37], this Court cited with approval a passage in the judgment of the Court of Appeal of England and Wales in Attorney General’s References (Nos 14 and 15 of 2006), in which Lord Phillips CJ addressed the element of double jeopardy in the context of an upward review of a respondent’s sentence. Lord Phillips had said[38]:

“…Almost from the start it has been the practice of the Court, when considering whether to substitute a heavier sentence and, if so, the length of the sentence, to have regard to the fact that the procedure subjects the defendant to anxiety which should normally be reflected by some discount in the sentence which would otherwise be imposed. This consideration has been described as ‘double jeopardy’. …

…

Having regard to double jeopardy is but one aspect of the task of this court when considering in the exercise of its discretion whether and how to intervene where an unduly lenient sentence has been imposed. Where a defendant has had no responsibility for the fact that he has been given a sentence which is unduly lenient, we consider that it accords with justice that, when substituting a weightier sentence, this Court should have some regard to the distress and anxiety experienced by the defendant as a consequence of having his sentence re-opened and increased. The degree of distress and anxiety and thus the size of the discount will depend on the facts of the particular case.

The distress and anxiety is likely to be particularly great where the decision of this court results in a defendant being placed in prison where originally no custodial sentence was imposed, where a custodial sentence has been completed, where the defendant is young and immature or where the defendant was about to be discharged from prison. In all of these cases the distress and anxiety caused by the double jeopardy is likely to be significant when weighed against the original offending. The authorities show that in such circumstances discounts for double jeopardy tend to be granted that are near the upper end of the range.”

44.Although the circumstances before us would not warrant a discount “near the upper end of the range”, we must add to the respondent’s inevitable anxiety and distress the fact that another 2½ years’ imprisonment would have to be served before she can be united fully with her son again; although we are informed that the child is being cared for in Hong Kong. Given the substantial increase in the respondent’s sentence, we are prepared to discount the sentence we should impose by a further 6 months, thus reducing the sentence to 12½ years’ imprisonment.

Disposition

45.The Secretary for Justice’s application is allowed and the sentence of 10½ years’ imprisonment passed upon the respondent by the judge is duly set aside. In accordance with our powers under section 81B(1)(a) of the Criminal Procedure Ordinance, we substitute a sentence on the respondent of 12½ years’ imprisonment.

Ms Catherine Ko DDPP (Ag) and Mr Fergus Chau SPP, of the Department of Justice, for the Applicant

Ms Lam Tsz-ying, Priscilia, instructed by Vitus Lawyers, assigned by the Director of Legal Aid, for the Respondent