HKSAR v. Wu Chun Yu

CACC397/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 397 OF 2008

(ON APPEAL FROM HCCC 213 OF 2008)

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BETWEEN

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Before : Hon Hartmann JA and Saw J

Date of Hearing : 25 June 2009

Date of Judgment: 25 June 2009

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JUDGMENT

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Hon Saw J (giving judgment of the Court):

1.On 13 November 2008 before Mackintosh DJ, the applicant, aged 32, a Taiwanese national, confirmed the plea of guilty she had entered on 19 September 2008 in the Eastern Magistrates Court to a charge of trafficking in a mixture containing 2,714.43 grammes of heroin hydrochloride contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The judge adopted a starting point for sentence of 26 years imprisonment and having reduced this by one third to reflect the applicant s plea of guilty imposed a sentence of 17 years and 4 months imprisonment.

3.The applicant seeks leave today to appeal against her sentence.

4.In support of her application she has told us something of her family circumstances which includes the fact that subsequent to her arrest she has given birth to a child in Hong Kong. She also told us that the father of that child, her boyfriend, was last year sentenced to be imprisoned for a period of 16 years for an identical offence to that of the applicant.

5.Attached to her Notice of Application for leave to appeal there is a document addressed to the Superintendent of the Tai Lam prison in which she asks for a more lenient sentence because of the fact she has three young children and she wished to return to Taiwan to care for them.

6.The facts which gave rise to the conviction and sentence of the applicant are all too familiar.

7.On 19 March 2008, the applicant was a transit passenger at the Hong Kong International Airport arriving from Siem Reap, Cambodia intending to then fly, the same day, to Taichung, Taiwan.

8.Customs officers intercepted her and a search revealed 3 parcels strapped to her body beneath her clothing.

9.Subsequent analysis of the contents of those parcels established that they contained 3,099.90 grammes of a mixture containing 2,714.43 grammes of heroin hydrochloride.

10.It was an admitted fact that the street value of this quantity of heroin hydrochloride was $1,661,546.

11.In mitigation the judge was told that the applicant became involved in drug trafficking because of difficult family financial circumstances.

12.The judge was alert to the seriousness of the applicant s offence not only by reason of the very large quantity of heroin hydrochloride involved but also the added aggravating factor of the international element.

13.In HKSAR v Abdallah Anwar Abbas, CACC304/2008, this court differently constituted reviewed a number of earlier decisions which dealt with sentences imposed for trafficking in quantities of heroin hydrochloride in excess of 600 grammes (being the upper limit of the sentencing levels laid down in R v Lau Tak Ming and others [1990] 2 HKLRD 370).

14.The court in Abbas determined that it was appropriate to issue further guidelines to supplement those in Lau Tak Ming. Those guidelines were for trafficking within Hong Kong and did not take into account aggravating circumstances such as where there is, as there is in the instant case, an international element to the offence. The Court of Appeal indicated that where there was such an aggravating factor the sentence should be enhanced and they considered that the minimum enhancement period would be, in the normal course of events, 2 years.

15.Those guidelines do not apply to this applicant but were they to thenno proper criticism could be made of the 26 years starting point.

16.The applicant would fall to be sentenced in the 1,200 C4,000 grammes bracket in those guidelines i.e. 23 to 26 years.

17.Had she been sentenced in accordance with those guidelines a starting point of 26 years would have been call for i.e. 24 years enhanced by 2 years to account for the international element.

18.The only issue in this application is whether or not the starting point of 26 years was appropriate at the date of sentence. In the light of the observations in Abbas and the review there of a number of relevant decisions of this court, we are satisfied that the sentence cannot properly be criticized.

19.In Abbas Tong J adopted a starting point for sentence of 25 years for trafficking in 1,218.86 grammes of heroin hydrochloride with an international element. The Court of Appeal was satisfied that this starting point was proper and consistent with the authorities as they then stood.

20.One of the earlier decisions of this court which was examined in Abbas was the decision in the R v Ho Chi Ming [1995] 2 HKC 538 where a starting point for sentence of 25 years was approved. In Ho Chi Ming the defendant had intended to take 1,213 grammes of heroin hydrochloride from Hong Kong to Taiwan.

21.Mr Wong on behalf of the respondent refers us to the fact that the judge, correctly, indicated that the applicant s guilty plea was the only significant mitigating factor. He further points out that it has long been accepted by this court that the personal or family circumstances of those who commit offences of this gravity are unlikely to amount to significant mitigating factors.

22.In the instant case the applicant trafficked in 2,714.43 grammes of heroin hydrochloride in excess of twice the amount in Abbas. The starting point for sentence, the discount given and the final sentence imposed were entirely appropriate.

23.There is no merit in the application and it is dismissed.

Mr Beney Wong, SPP of the Department of Justice,for the Respondent

The Applicant, in person