HKSAR v. Jocelyn Sanchez Badua and Another

CACC 327/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 327 OF 2006

(ON APPEAL FROM HCCC NO. 54 OF 2006)

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BETWEEN

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Before:  Hon Tang VP and Yeung JA in Court

Date of Hearing: 7 March 2007

Date of Judgment: 7 March 2007

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J U D G M E N T

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Hon Tang VP:

1.The applicants each pleaded guilty to one count of trafficking in heroin hydrochloride.  The quantities involved were in the case of the 1^st applicant, 1.8 kilograms and in the case of the 2^nd applicant 1.71 kilograms.

2.They were each sentenced to imprisonment for 12 years by Lunn J.

3.Since the quantity involved was above the 600 grams upper limit in the guideline laid down by this court in R v Lau Tak-ming [1990] 2 HKLR 370, the judge adopted 21 years as the starting point.

4.The judge, however, allowed a discount of 45%, because of the applicants’ guilty pleas, as well as what the judge described as the applicants’ “immediate, sustained and successful cooperation with the customs officer in their ongoing investigation”.

5.This is the applicants’ application for leave to appeal.

6.It is clear that the starting point of 21 years accords with the sentencing guidelines laid down by this court.  As for the discount of 45%, the judge followed another decision of this court, namely, HKSAR v Ng Shek-yu, CACC 178/2000 (unreported), 1 March 2001.

7.In that case, Stuart-Moore VP said:

“… The question to be answered, however, is whether a discount of 40% for a defendant who was not a supergrass and who had provided assistance to the authorities without giving evidence against other offenders is appropriate. We have no doubt that it was appropriate. We have on previous occasions stated that in similar circumstances to those which happen to prevail in the present case, a discount of between 40 to 45% will usually be appropriate.”

8.A supergrass is normally a person who has given valuable information to the police at considerable risk, and who is prepared to give evidence.  The applicants here do not fall within that category.

9.The judge decided to give a discount at the upper range, namely, 45%.  In doing so, the judge also recognised that the 1^st applicant’s cooperation could be described as being more sustained, and that it resulted in the arrest of two persons instead of one.  However, he decided to deal with the matter in the round and gave each applicant a discount at the upper end of that range, namely, 45%.

10.The 1^st applicant was arrested on 3 August 2005, at the arrival hall at the Hong Kong International Airport, at about 7:10 p.m.  On an X-ray examination of the suitcase carried by the 1^st applicant, customs officers found what turned out to be 1.8 kilograms of heroin inside the secret compartment of the suitcase.  A piece of paper with the address of Kimberley Inn in Tsim Sha Tsui was found on the person of the 1^st applicant.  She told the customs officers that the paper was given to her by a female called Angie in Bangkok, who asked her to go to that hotel upon her arrival in Hong Kong.  She was then asked by the officers if she was willing to cooperate with the customs officers to mount a controlled delivery operation in order to identify the receiver of the suitcase.  The 1^st applicant agreed.

11.At around 1:30 a.m. on 4 August 2005, the 1^st applicant in the company of customs officers, checked in at Room 25 at Kimberley Inn.  Shortly afterwards, the 2^nd applicant arrived at Room 25.  She had in her possession a black suitcase identical to the one which was in the possession of the 1^st applicant.  In that suitcase, 1.71 kilograms of heroin, the subject of count 2, was also found in the secret compartment.  The 2^nd applicant was also prepared to cooperate, and she was permitted to receive a number of incoming telephone calls during the night and in the early morning.  Following an incoming telephone call received at 9:42 am, the 2^nd applicant informed the customs officers that a man was coming to the hotel room.  Shortly thereafter, the 3^rd defendant, Mr Jackson arrived.  Jackson was then arrested.  He was eventually convicted after trial and sentenced to imprisonment for 21 years.

12.It appears that, therefore, both the 1^st and 2^nd applicants had given valuable assistance to the customs officers which led to the arrest of the 3^rd defendant.  In the case of the 1^st applicant, the judge acknowledged that her assistance also led to the arrest of the 2^nd applicant.

13.The 1^st applicant was born in the Philippines and is a widow.  She has re-married but has since separated from her husband.  She is the mother of six children.  She is 43 years old.  She lived in Thailand where she was in employment in Bangkok.  She has no criminal record.

14.The 2^nd applicant was born in the Philippines and is 46 years old.  Prior to her arrest, she worked as a domestic servant in Thailand.  She has no previous criminal conviction in Hong Kong or elsewhere.

15.In the case of the 1^st applicant, her assistance to the police led to the arrest of two persons instead of one.  As I have said, the judge acknowledged that.  But even so, I do not believe it could be said a 45% discount from the starting point of 21 years, was an insufficient recognition of the assistance that she had given to the police.  Provided her sentence is appropriate, the fact that the 2^nd applicant has been dealt with relatively leniently is not a reason for this court to interfere with the 1^st applicant’s sentence.  On appeal against sentence, this court cannot interfere unless the sentence is manifestly excessive.

16.As for her personal circumstances, this court has repeatedly said that in cases involving the trafficking in substantial amount of dangerous drugs, the personal circumstances of the defendant carry little weight in mitigation.  Drug trafficking is a great social evil.  Any wavering in the court’s determination to combat drug trafficking will be exploited.  If, having young children is a mitigating factor, I fear drug traffickers will simply employ women with young children as couriers.  Having said that I am of the view that the judge has dealt with both applicants as sympathetically as the nature of the offence permits.

17.Turning to the 2^nd applicant, I also regard the discount of 45% in her case as appropriate, and that her sentence is not manifestly excessive.

18.The application for leave to appeal against sentence by both applicants is dismissed.

Hon Yeung JA:

19.I agree with the judgment of Tang VP, and would also dismiss the application for leave to appeal against sentence.

Ms Anthea Pang, SGC,of the Department of Justice, for the Respondent.

The 1^st Applicant, in person, present.

The 2^nd Applicant, in person, present.