HKSAR v. Mateus Da Silva

CACC87/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 87 OF 2010

(ON APPEAL FROM HCCC 425 OF 2009)

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Before : Hon Cheung JA and McMahon J

Date of Hearing : 14 October 2010

Date of Judgment : 22 October 2010

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JUDGMENT

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McMahon J (giving the judgment of the Court) :

1.The applicant, a 39 year-old citizen of Guinea Bissau, was committed for sentence in the High Court for an offence of trafficking in 543 grammes of heroin hydrochloride and 173.66 grammes of monoacetylmorphine hydrochloride, totalling 716.66 grammes of narcotic. He was sentenced by Lunn J to 15 years and 4 months’ imprisonment and now appeals that sentence. 

2.The facts of the case are straightforward.  The applicant arrived at Hong Kong International Airport on 9 July 2009 on a flight originating in Dhaka, Bangladesh.  As he attempted to exit through Customs he aroused the suspicion of customs officers. 

3.Following a search the applicant was sent to Queen Elizabeth Hospital for further examination.  He was X-rayed and found to have a large number of foreign objects in his intestines.  Over the next three days the applicant discharged 75 pellets containing the drugs the subject of the offence.  Under caution he said he received the drugs in Dhaka and was promised a monetary reward for bringing them to Hong Kong. 

4.The applicant makes complaint of the sentence imposed by the judge in two respects. 

5.He says, firstly, that the judge was wrong to take a starting point of 23 years’ imprisonment.  It is a starting point, he says, which resulted in a sentence which was more than sentences imposed in other cases where the amount of drugs was greater.  This information was said to have been based on his conversations with other prisoners in Stanley Prison where he is currently incarcerated. 

6.The applicant cites three cases in support of his argument.  In HKSAR v Bugingo, HCCC351/2009; HKSAR v Hamduni, HCCC230/2009 and HKSAR v Koshuma, HCCC242/2009 each of the defendants were intercepted at Hong Kong International Airport and later discharged quantities of heroin.  Bugingo had 756 grammes of heroin and 146 grammes of monoacetylmorphine hydrochloride (a total of 902 grammes of narcotic) and was sentenced after plea to 14 years’ imprisonment (from a starting point of 20 years enhanced to 21 years to reflect the importation from overseas).  Hamduni had 958 grammes of heroin and was sentenced after plea to 15 years and 4 months’ imprisonment (from a starting point of 21 years enhanced to 23 years to reflect the importation factor).  Koshuma had 710 grammes of heroin and was sentenced to 14 years and 8 months’ imprisonment (from a starting point of 21 years, enhanced to 22 years as a result of the importation of the drugs). 

7.In the present case the judge took a starting point of 23 years’ imprisonment after incorporating an enhancement, the degree of which he did not state, because of the drugs importation into Hong Kong.  He reduced that by one-third to reflect the applicant’s guilty plea and so arrived at the sentence of 15 years and 4 months’ imprisonment.  

8.It is clear that so far as Hamduni (involving 958 grammes of heroin and a sentence of 15 years and 4 months’ imprisonment) and Koshuma (involving only 710 grammes of heroin and a sentence of 14 years and 8 months’ imprisonment) the sentence imposed on the applicant is proportionately higher when compared with the quantities of drugs involved and the sentences imposed in those cases.  The sentence imposed in Bugingo may be considered very lenient by any measure, and so is for that reason again disproportionate to that imposed on the applicant who imported some 186 grammes of heroin less.  

9.But disproportionality of the above kind, in principal, cannot be a valid cause for complaint by the applicant.  As Ms Eva Chan, for the respondent submits, the real question is whether the sentence imposed upon the applicant is proper : see HKSAR v Chow Tat Fuk, CACC428/2004 at page 3.  

10.The present offence was committed on 9 July 2009, some 4 months after the delivery of the judgment in HKSAR v Abdallah Anwar Abbas, CACC304/2008. That judgment provided supplementary guidelines for trafficking in large amounts of heroin.  The quantity of drug the present applicant imported into Hong Kong was 716.66 grammes of heroin.  The suggested sentence in Anwar Abbas for a quantity of between 600 to 1,200 grammes of drug is 20 to 23 years’ imprisonment.  In our judgment the total of 716.66 grammes would attract a starting point of sentence of something in the vicinity of 21 years’ imprisonment.  That would require enhancement because of the aggravating factor of the importation.  In Anwar Abbas Stuart-Moore VP said, in delivering the judgment, that “We do not envisage that the enhancement … for amounts above 1 kilogramme will be less than 2 years’ imprisonment ...”

11.It is likely that in the present case the judge enhanced the starting point by 2 years, though the amount of drug was less than 1 kilogramme.  That is a somewhat speculative statement because, as we say, the judge did not state the degree of enhancement. 

12.Some degree of latitude must be allowed sentencing judges even within the well-defined parameters of Lau Tak Ming and Anwar Abbas.  The process of sentencing is not conducted by way of mathematical formula. Nevertheless because of the uncertainty as to how the judge arrived at his starting point of sentence we think it proper to sentence the applicant afresh. 

13.The correct starting point was one of 21 years’ imprisonment.  That starting point required enhancement because of the importation of the drug into Hong Kong.  That enhancement however, given that the quantity of drug was well under the one kilogram referred to in Anwar Abbas, should be only one year.  That results in a starting point of 22 years’ imprisonment.  Giving the applicant the benefit of his plea and there being no other mitigation, that would reduce his sentence to 14 years 8 months’ imprisonment.  

14.Before concluding we should mention the final complaint of the applicant to the effect that counsel representing him at the sentencing hearing did not mitigate sufficiently. 

15.That is a complaint completely without merit.  It is apparent from the judge’s reasons for sentence that a very great deal had been provided to him in mitigation, indeed more than could properly be taken into account.  The judge was informed of the applicant’s background in considerable detail and of his financial difficulties which were said to be the reason for him offending.  The court was also informed of the applicant’s remorse, his admissions after arrest and his plea of guilty before the committing magistrate.  Much of this was subsumed into the one-third discount applied by the judge and the balance could not further affect sentence. 

16.For the reasons we have given the application is allowed.  We treat the hearing as the appeal and allow the appeal to the extent that the existing sentence is set aside and substituted by a sentence of 14 years 8 months’ imprisonment.  

Ms Eva Chan, PP of the Department of Justice, for the Respondent

The Applicant in person, present