The Queen v. Chan Kin Mei

CACC000282/1990

Headnote

Trafficking which involves international smuggling of dangerous drugs is regarded as an offence of utmost seriousness. A starting point of thirteen years for possession of 293.83 grammes of No. 4 heroin found on the Applicant after arrest at the arrival hall at Lo Wu Terminal held to be appropriate. Court indicated that a discount of 44% for the giving of information which led to the apprehension of another trafficker was "not ungenerous".

BETWEEN

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Coram: Hon. Fuad, V.-P., Power & Macdougall, JJ. A.

Date of Hearing: 9 January 1991

Date of Judgment: 9 January 1991

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the court.

2. The applicant pleaded guilty before Judge Corcoran sitting as a Deputy Judge in the High Court to a charge of possession of dangerous drugs for the purpose of unlawful trafficking. She was sentenced to imprisonment for seven and a half years and now appeals against that sentence.

3. The charge was that she on the 24th of October, 1989, at the Customs Arrival Hall, Lo Wu Terminal, unlawfully trafficked in a dangerous drug, namely 293.83 grammes of a mixture containing 258.35 grammes of salts, of. esters of morphine.

4. The facts were that on that date she had left Hong Kong for Mainland China having passed through the Lo Wu Control point at 7.30 a.m. She returned to Hong Kong through that same control point at 9.36 p.m. Having been processed through Immigration, she proceeded to Customs and when asked if she had anything to declare, said "No". She was then subjected to a routine body search and when her skirt was removed, the Customs Officers saw packaging taped to both thighs beneath her panty hose. These were subsequently removed and found to be the two packets of suspected dangerous drugs particularized in the charge. She made a statement admitting that she had been importing the dangerous drugs.

5. She first appeared before Judge Corcoran on 21st May 1990 but, because of the pending decision in The Queen v. LAU Tak-ming, the matter was adjourned to 22nd and was then again adjourned on 22nd until 31st May to await the handing down of that decision.

6. The trial judge with the concurrence of counsel then adopted the tariff which was set out in Lau's case. He said:

7. The Grounds of Appeal very properly questioned this approach as the date of the offence falls outside the period when the guidelines in Lau's case have application. There was no real dispute with regard to this contention. The essential issue before this court was whether, given the guidelines that were applicable, i.e. those in R. v. CHAN Chi-ming, the sentence of seven and a half years was proper. Mr. Macrae, who appeared for the applicant, made no demur when informed by the court that the view taken was that we should have before us material notionally converting the No. 4 heroin found on the applicant into No. 3 heroin so as to be able properly to apply those guidelines. Mr. Macrae, in the outcome, told the court that he and the Crown had agreed that the converted figure would be an amount of 5.496 kilos with a wholesale value of $57,400 and a retail value of $170,400.

8. Mr. Macrae then argued that the tariff in CHAN Chi-ming placed this offence within the 8-12 years bracket, and that, at the highest, the starting figure should have been twelve years and not the thirteen years taken by the trial judge. He did not suggest that the discount of 44% given by the trial judge for the plea of guilty and the assistance to the police in revealing the name of another trafficker who, we are told, was apprehended and dealt with, was not a proper one. Indeed, he conceded that it was a relatively generous one and we are of the same view.

9. As the matter has resolved itself, the only point that falls for our decision is whether that starting point of thirteen years was appropriate. It is Mr. Macrae's submission that, even though 5.5 kilos was involved, the starting point should not have gone beyond twelve years. We are unable to agree. Even if the CHAN Chi-ming guidelines were squarely applicable, the amount of 5.5 kilos, in our view, would take it very close to what that case described as a matter of "unusual seriousness" which would call for a sentence of more than 12 years. 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. We are satisfied that the figure of thirteen years was appropriate given the factors set out above and that the discount of 44% was a not ungenerous one.

10. The application for leave to appeal against sentence must therefore be refused.

Representation:

Mr. D.G. Saw (Crown Prosecutor) for the Respondent.

Mr. A.C. Macrae (D.L.A.) for the Applicant.