HKSAR v. Hendrik Wijaya Oei

CACC 93/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 93 OF 2008

(ON APPEAL FROM HCCC 209 OF 2007)

_______________________

BETWEEN

______________________

Before: Hon Yeung JA, Lunn J and Wright J

Date of Hearing: 23 November 2010

Date of Judgment: 23 November 2010

______________________

J U D G M E N T

______________________

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

Introduction

1.On 20 March 2007, the applicant (a 56-year old Indonesian Chinese) arrived in Hong Kong from Shenzhen and went directly to the Hong Kong International Airport. He checked in three pieces of luggage for Cathy Pacific Flight 719 to go to Jakarta and one of his three pieces of luggage, a black suitcase, contained 3.93 kilograms of “ice”.  

2.The applicant was arrested and charged with trafficking in 3.93 kilograms of “ice”.  The applicant pleaded not guilty to the charge and appeared before Saw J sitting with a jury for trial.

3.On 1 February 2008, the applicant was convicted as charged and, on 11 February 2008, the judge sentenced him to 24 years’ imprisonment.

4.By a notice dated 4 March 2008, the applicant sought leave to appeal only against conviction which application was abandoned on 24 December 2009.

5.On 25 January 2010, the applicant sought an extension of time for leave to appeal against sentence.

6.The applicant pointed out that he was just going back to Indonesia, transiting through Hong Kong and that he had no accomplice. He said if the offence was committed in Indonesia, his sentence would not have exceeded 10 years and therefore the 24-year sentence imposed on him was “slightly excessive”.

7.The applicant emphasized that he faces more hardship serving his sentence in Hong Kong when he is unable to understand either the English or the “Hong Kong” languages and where he does not have any relative. He said he is old with poor health and asked to be given a chance to reunite with his family earlier.

Discussion

8.Trafficking in a dangerous drug is a very serious offence and, as a deterrent to others, the Court of Appeal had laid down clear guidelines for sentence. In AG v Ching Kwok-hung [1991] 2 HKLR 125, after pointing out that “ice” is a drug to be taken very seriously as it is in ways more deleterious to its abusers, and to society in general, than heroin, the Court indicated that for trafficking in over 600 grammes of “ice”, a starting point of 18 years upwards should be adopted.

9.The applicant was convicted of trafficking in 3.93 kilograms of “ice”, over 6½ times the 600 grammes, which already attracts an 18-year sentence.

10.We cannot ignore that this case involves a foreign element, which is an aggravating factor.

11.R v Ho Chi-ming [1995] 2 HKCLR 29 and HKSAR v Leang Sze-keong (unreported CACC 566/1997) involve respectively 1,200 grams of salts of esters of morphine and 890 grams of heroin hydrochloride. The Court of Appeal regarded a 25-year starting point appropriate as both cases involved a foreign element.

12.The matters referred to by the applicant, namely that he is a foreigner, and that he is “old” and sick are not mitigating factors for the offence that he had committed.

13.We are not persuaded that the sentence imposed on the applicant is manifestly excessive. The application for an extension of time for leave to appeal against sentence is dismissed.

Mr Andrew Cheng, SPP(Ag) of the Department of Justice for the Respondent.

Applicant: In Person.