HKSAR v. Farias Fernandez Norman Martin

CACC 368/2009 AND
CACC 2/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 368 OF 2009

(On Appeal From High Court Criminal Case No. 194 of 2009)

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BETWEEN

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 2 OF 2010

(On Appeal From High Court Criminal Case No. 358 of 2009)

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BETWEEN

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Before : Hon Cheung and Hartmann JJA in Court

Date of Hearing : 11 August 2010

Date of Judgment : 11 August 2010

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

1.In these two cases the applicants applied for leave to appeal against sentence. The two cases were heard separately, one after the other. As both of them involve trafficking in large quantity of drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134), we decided to give a single judgment in respect of the two cases.

CACC 368 of 2009

2.On 13 January 2009 the applicant (‘Farias’) arrived at the Hong Kong International Airport on a flight from Paris to Hong Kong.  He began his journey first from Buenos Aires in Argentina.  He was the holder of a Uruguay passport.  He was intercepted by the Hong Kong Customs Officer. The suitcase he was carrying was examined and drugs were found.  They were 1,634 grammes of cocaine with a retail price of HK$1,905,640.  He pleaded guilty to the charge before Deputy High Court Judge Longley.  In mitigation he said that he committed the offence in order to pay off a debt owed by his brother to drug suppliers.  He received no remuneration for bringing the cocaine to Hong Kong. He was 32 years of age at the time of the arrest.  He was sentenced to 16 years and 8 months’ imprisonment.  Judge Longley adopted a starting point of 23 years and enhanced it by 2 years to reflect the fact that the applicant was importing the drugs into Hong Kong from overseas.  A one third discount was given for the plea.  

CACC 2 of 2010

3.The applicant (‘Arrua’) arrived in Hong Kong on 19 May 2009 on a flight from Santiago, Chile via Paris.  He was intercepted by the Immigration Officer when he was waiting to take the connecting ferry at the passenger terminal building to Macau.  Drugs were discovered inside his luggage which were 2.51 kilogrammes of cocaine with a retail price of HK$2,676,830. 

4.Arrua is a 27-year-old man who holds a Paraguayan passport.  He admitted that he was asked by a man in Paraguay whether he wished to make money by transporting something to Macau.  He was subsequently given the luggage which contained the drugs by the man in Argentina together with an envelope which contained his instructions.  He was to receive US$5,000 on a successful delivery.  He pleaded guilty before Beeson J and was sentenced to 17 years and 4 months’ imprisonment.  Beeson J adopted a starting point of 24 years and enhanced it by 2 years because of the international element, namely, the drugs were brought in from abroad and Hong Kong was being used as a staging post to get the drugs into Macau.  The total sentence was 26 years’ imprisonment. A one third discount for the plea was given.

Sentencing guidelines

5.The sentencing guideline for trafficking in cocaine is the same as that of trafficking in heroin : see R. v. Lau Tat Ming [1990] 2 HKLR 370 and AG v. Petrol Nel Rojas [1994] 2 HKCLR 69.

6.The Lau Tat Ming guideline which is based on the quantity of drugs involved is as follows :

1)     up to 10 grammes of narcotic — 2 to 5 years’ imprisonment;

2)     between 10 grammes and 50 grammes — 5 to 8 years;

3)     between 50 grammes and 200 grammes — 8 to 12 years;

4)     between 200 grammes and 400 grammes — 12 to 15 years;

5)     between 400 grammes and 600 grammes — 15 to 20 years;

6)     for drugs above 600 grammes, the sentence is at the discretion of the Court.

7.On 12 March 2009 the Court of Appeal (Stuart-Moore VP, Stock JA and McMahon J) in HKSAR v. Abdallah [2009] 2 HKLRD 437 set out further guidelines for sentence in respect of drugs at a quantity beyond the 600-gramme level and they are :

7)     600 to 1,200 grammes — 20 to 23 years’ imprisonment;

8.1,200 to 4,000 grammes — 23 to 26 years’ imprisonment;

9.4,000 to 15,000 grammes — 26 to 30 years’ imprisonment;

10.over 15,000 grammes — At the sentencer’s discretion.

8.      The Court further held that

‘ 42. It will be an aggravating factor calling for the enhancement of the starting point where, for example :

(1)     An international element is involved;

(2)     The trafficker has previously been convicted of trafficking in dangerous drugs;

(3)     The trafficker is shown to be a mastermind or senior player, such as a financier, in a syndicate; or

(4)     The offender is shown to have engaged a young person to assist in the trafficking.

43.     We do not envisage that the enhancement, for any of the reasons we have itemised, for amounts above 1 kg will be less than 2 years’ imprisonment in addition to the new guideline tariffs we have set out.’

9.      The Court further expressly recognised at paragraph 44 of the judgment that the new guideline does not have retrospective effect.  In other words, they only apply to offences committed after the date of the judgment of 12 March 2009.

CACC 368 of 2009

10.      In the case of Farias, Judge Longley expressly recognised thatthe new sentencing guideline of Abdallah did not apply because the offence which took place on 13 January 2009 was committed before the date of the judgment of Abdallah.  Under the new guideline, 1,634 grammes of cocaine will attract a sentence in the 23-26 years’ range.  However in Abdallah the Court expressly referred to R v. Ho Chi Ming [1995] 2 HKCLR 29 in which the Court of Appeal adopted a 25-year imprisonment as a starting point for a trafficker of 1,213 grammes of heroin. 

11.This Court in Abdallah held that

‘ 23. As might well be expected following the decision in R v Ho Chi Ming, although no general guidance had been provided to sentencers for future cases of that kind, the endorsement of the Court of Appeal of a starting point in the region of 24 or 25 years after trial for offences of trafficking in more than a kilogramme, where an international element was involved, thereafter tended to provide a sentencing benchmark in such cases.’

12.Farias had referred us to a number of pre-Abdallah cases which showed different sentences for large quantity of drugs.  It is not necessary to analyze these cases because as recognized by Abdallah there were disparities in sentences in respect of large quantity of drugs prior to the decision of Abdallah.  However, Abdallah expressly recognized that even for offences that were committed before the decision of Abdallah, a starting point of 24 to 25 years’ imprisonment for trafficking in more than a kilogramme of drugs where an international element was involved could be used as a sentencing benchmark.   The drugs trafficked by Farias were 1,634 grammes of cocaine.  In our view the starting point of 23 years’ imprisonment plus a 2-year enhancement is clearly within the range of recognized range of sentence.  In serious offences like trafficking in dangerous drugs the personal circumstances of the defendant including the inconvenience of a foreigner serving sentence in the local jail will play little part in mitigation.  Accordingly the application by Farias is dismissed. 

CACC 2/2010

13.In respect of Arrua,the drugs were 2.5 kilogrammes of cocaine, this is a very large quantity of drugs. Beeson J correctly applied the Abdallah guideline.  Three of the cases referred to by Arrua were considered in Abdallah.  The applicable guideline is those contained in Abdallah.  In respect of the other case referred to by Arrua where a trafficker of about 2.55 kilogrammes of cocaine received a sentence with a starting point of 21 years’ imprisonment without any enhancement, we would like to say that as consistently stated by this Court the mere fact that a defendant in another case may have received a lighter sentence does not mean that the sentence under appeal is incorrect.  Likewise the personal circumstances of the applicant will play little part in the overall sentence in a serious offence of this kind.  Accordingly we will also dismiss Arrua’s application.

CACC 368/2009

Ms Alice Chan, SPP of Department of Justice, for the Respondent Applicant, appearing in person, present

CACC 2/2010

Ms Alice Chan, SPP of Department of Justice, for the Respondent Applicant, appearing in person, present