The Queen v. Galdho Gurung Sayani

CACC000213/1990

BETWEEN

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Coram: Fuad, V.-P., Mayo & Hooper, JJ.

Date of Hearing: 9 July 1991

Date of Judgment: 9 July 1991

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, a Nepalese woman who is unrepresented before us, was convicted after trial in the District Court by Judge Roy, of two offences of unlawful possession of dangerous drugs for the purpose of unlawful trafficking.

2. In respect of one of these offences which related to 2,992 grammes of cannabis resin containing 319 grammes of tetrahydrocannabinol, the applicant was sentenced to 2 years' imprisonment. In respect of the other offence which related to heroin base in the form of 15.61 grammes of a mixture containing 8.44 grammes of esters of morphine, the judge sentenced her to a concurrent term of 4 1/2 years' imprisonment. She now applies for leave to appeal against the sentences.

3. The offences were both committed on 4th October 1989 when the applicant arrived at Kai Tak Airport on a flight from Kathmandu. Customs officers discovered cannabis resin in the form of 206 pellets in a rice spirit container in her luggage. The heroin base was found hidden in her clothing.

4. The evidence at the trial disclosed that the applicant was a courier for an Indian friend in Nepal who had financed her trip to Hong Kong and was to have paid he 5000 Rupees on her return home. She had come to Hong Kong on many previous occasions. The judge accepted that she had been made use of by her employer. He sentenced her on the basis that she was a courier who had known full well the unlawful nature of the drugs she was carrying.

5. The two year sentence imposed by the judge in respect of the cannabis resin was in accordance with the guidelines laid down by another division of this court in A.G. v. Chan Chi Man [1987] HKLR 221. On the evidence before the judge the heroin base which was the subject of the second charge was capable of being converted into 165 grammes of No.3 heroin. This qualified for a sentence on the lower end of the 5-8 year bracket laid down in Chan Chi Ming [1979] HKLR 491. The judge did not impose a 5 year sentence but discounted the sentence to 4 1/2 years which, as we have seen, he imposed concurrently with the 2 year term for the cannabis resin offence.

6. The reason the judge gave for making the sentences concurrent was that they arose out of the same incident. We do not wish to be taken to be approving this approach. On the contrary, we consider it to be wrong in principle in relation to drug offences where sentences are imposed by reference primarily to the amount of the drugs involved.

7. The judge indicated the factors which had induced him to discount the sentence for the heroin base offence to only 4 1/2 years. The mitigating factors which he said he had taken into account were the applicant's age (which was about 41) her sex, the fact that she was the mother of two  young children left in the care of a friend because she had separated from her husband, and the fact that she had been made use of by others. He also indicated that he had borne in mind that since the applicant spoke no English or Cantonese, she would feel extremely isolated in prison.

8. Having regard to the gravity of her offences and the frequent warnings by other divisions of this court that those who take part in drug trafficking can expect, and should receive, no mercy from the courts be they the lame, the halt, the blind, the young or the old, (see, for example, Chan Chi Ming at p.493, Lam Hak Hung (unreported) Criminal Appeal No. 724 of 1972 and Lau Tak Ming [1990] 2 HKLR 370 at p.386), we consider that the applicant was fortunate to receive the discount the judge gave her in respect of the heroin base offence.

9. However the applicant has contended in her notice of application that the effective sentence of 4 1/2 years is too severe. She relied on the absence of any person to look after her children during her imprisonment and the hardship involved in being an alien in prison in Hong Kong. She emphasised these matters in a moving address to us this morning.

10. Nobody who saw her in court today could fail to have the greatest possible sympathy for her.  Her offences have brought enormous hardship and suffering upon her and her innocent children. This clearly was why the judge showed her the compassion he did, but, in our judgment she was very fortunate indeed to receive concurrent sentences and a discount on the heroin base sentence in a situation where consecutive sentences were appropriate and which would have been upheld. In such circumstances, any reduction in her sentences would only serve to encourage those who employed the applicant and others like them.

11. For these reasons, we feel bound to dismiss the application.

Representation:

Galdho Gurung Sayani, Applicant in person

Mr. S. Bailey (Crown prosecutor) for the crown