HKSAR v. Vaca Mingyao

CACC 164/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 164 OF 2008

(ON APPEAL FROM HCCC NO. 22 OF 2008 )

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BETWEEN

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Before: Hon Yeung JA and McMahon J in Court

Date of Hearing: 20 November 2008

Date of Reasons for Judgment: 20 November 2008

Date of Handing Down Reasons for Judgment: 1 December 2008

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.On 20 November 2008, we granted leave to the applicant (Vaca Mingyao) to appeal against sentence. We allowed his appeal and reduced his sentence from 16 years to 15 years. These are the reasons.

The Facts

2.On 15 October 2007, the applicant, upon arrival at the Hong Kong International Airport from Delhi, India, was refused entry by the Immigration Officials, and escorted to reclaim his baggage.

3.A customs officer subsequently found, from the concealed compartment of the applicant’s suitcase, a brown packet of 1,500.41 grammes of a mixture containing 1,049.58 grammes of heroin hydrochloride, with a street value of about $530,000.

4.The applicant claimed not to know “what the powder is”. He said he was only asked to bring “some ruby” into Hong Kong.

5.The applicant subsequently said under caution that his colleague in a hotel where he worked as a chef, upon knowing that he was in need of money, asked him to deliver a bag to Guangzhou. He was told to contact a person called Francis in Delhi where he was given the suitcase and US$1,000 as pocket money. Francis told him to get a visa to go to Guangzhou whilst in Hong Kong and to contact a Mr Okay in Guangzhou. The applicant further said he was promised a reward of 50,000 rupees.

6.On 8 April 2008, the applicant appeared before Deputy Judge M Poon in the High Court and pleaded guilty to the charge of trafficking in the heroin.

7.The judge, pointing out that the case involved an international element and relying on R v Ho Chi-ming [1995] 2 HKLRD 29 and HKSAR v Leang Sze-keong (unreported CACC 566/1997), adopted a starting point of 24 years. The judge reduced the starting point by one-third on account of the applicant’s guilty plea and sentenced him to 16 years’ imprisonment.

8.The applicant sought leave to appeal against sentence.

Grounds of Appeal

9.Mr Jackson Poon, counsel for the applicant, submitted that a 24-year starting point for trafficking in about 1,000 grammes of heroin was excessive.

10.Mr Poon, relying on HKSAR v Wong Ping-kay (unreported CACC 274/2007), emphasized that for drug trafficking offences, the main consideration is the quantity of drug involved and that other aggravating or mitigating factors, though not completely irrelevant, should not be overstated.

11.Mr Poon further emphasized that in AG v Pedro Nel Rojas [1994] 1 HKC 342, a case involving a South American bringing into Hong Kong 1,770 grammes of cocaine, the Court of Appeal considered a 15 years’ imprisonment appropriate on a plea of guilty, which reflects a starting point of 22½ years.

Discussion

12.Amounts of over 600 grammes of narcotics, be it heroin or cocaine, fall into the “very large quantities” category. There are no sentencing guidelines for trafficking in “very large quantities” of drugs, although there should be an upward increase from the “cut off sentence” of 20 years laid down in R v Cheng Yeung [1989] 2 HKLR 258, when the maximum sentence provided for by the legislation for trafficking in a dangerous drug is life imprisonment (see the judgment of Silke VP in R v Lau Tak Ming [1990] 2 HKLR 370 at p 387 E-F.

13.Silke VP further elaborated in AG v Ching Kwok-hung [1991] 2 HKLR 125, “By upwards we mean, as was indicated in Lau Tak Ming, beyond any cut off sentence, but bearing in mind the dangers of a mathematical progression causing injustice”.

14.Mathematical progression can cause injustice. However, there must be a logical and proportional connection between the quantity of drug involved and the sentence in any drug trafficking offence as the quantity of drug is still, under established principles, the most single important factor on sentence.

15.In Leang Sze Keong (supra), a case of trafficking in 890 grammes of heroin with a “foreign element”, the Court of Appeal approved a 25-year starting point.

16.However, as the Court of Appeal commented in Wong Ping Kay (supra) at para 28 of the judgment in Leang Sze Keong (supra); “There are only three paragraphs in the judgment delivered by the Court of Appeal, in which the Court of Appeal did not provide any detailed discussion regarding the issue apart from pointing out that the starting point of 25 years was consistent with the tariffs laid down in Lau Tak Ming. This may be due to the fact that the defendant did not have legal representation, the court therefore failed to get sufficient assistance. We are of the opinion that the decision in Leang Sze Keong is not binding on this court.”

17.Ho Chi-ming (supra), a case decided in 1995, involved 1,200 grammes of salts of esters of morphine, about 20% more than the quantity of heroin in the present case.

18.As the Court of Appeal also observed in Wong Ping Kay (supra), Sentencing in Hong Kong (Cross & Cheung 5^th Edition) refers to many cases of trafficking in large quantities of heroin, noticeably HKSAR v Li Lap-fo CACC 639/1999, HKSAR v Chiu Ho-chung [2001] 1 HKLRD 697, and HKSAR v Lam Kam-kwong [2002] 1 HKC 541, where the starting points of 24 or 25 years were adopted for much large quantities of more than 5,000 grammes, 5,000 grammes and 1,500 grammes respectively.

19.In HKSAR v Tse Sun-wong CACC 188/2001, the Court of Appeal reduced the starting point of 25 years to 22 years for trafficking in 985 grammes of heroin hydrochloride when there was no “foreign element”.

20.The quantity of heroin involved in the present case is just over 1,000 grammes. The “foreign element” is an aggravating factor, however, such a factor is often present in most similar cases.

21.What we were concerned with is if a 24-year starting point is adopted for trafficking in 1,000 grammes of heroin, which is not greatly in excess of the “cut off” quantity of 600 grammes, there will be very little room for distinguishing it from other similar cases involving much larger quantities such as 2,000 grammes, 3,000 grammes, 5,000 grammes or more. After all trafficking in a very large quantity of heroin or cocaine, does not in practice, attract a starting point of more than 28 years.

22.In our view, there should be some measure of restraint and proportionality. After all the “cut off sentence” of 20 years itself is a very lengthy term of imprisonment.

23.We were persuaded that a starting point of 22½ years was adequate to reflect the gravity of the offence committed by the applicant, even taking into consideration the “foreign element” when the quantity of heroin involved was about 1,000 grammes.

24.We were of the view that the proper sentence for the applicant, upon a plea of guilty, should be 15 years’ imprisonment.

25.We therefore granted leave to the applicant to appeal against sentence. Treating the application as the appeal proper, we allowed his appeal and reduced his sentence from 16 years to 15 years’ imprisonment.

Mr Simon Tam, SPP of the Department of Justice for the Respondent.

Mr Jackson Poon instructed by Messrs To, Lam & Company assigned by the Director of Legal Aid for the Applicant.