Case Document

100%Judiciary

CACC000094A/2000

CACC 94/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 94 OF 2000

(ON APPEAL FROM HCCC 315/1999)

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BETWEEN
	HKSAR	Respondent

	AND

	MANALO IRENE BURNALES	Applicant/Appellant

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Coram: Hon Stuart-Moore Ag CJHC, Leong JA and Stock JA in Court

Date of Hearing: 21 November 2000

Date of Judgment: 21 November 2000

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J U D G M E N T

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Hon Leong JA:

1. The applicant pleaded guilty to one count of trafficking in a dangerous drug i.e. 51.02 grammes of methamphetamine hydrochloride or "ice". She was sentenced in the Court of First Instance to 6 years imprisonment by Deputy Judge Wong.

2. The facts are that she was stopped in the street by patrolling police officers when they saw her acting suspiciously. They searched her person and found the drug in question in two resealable plastic bags. She admitted to interviewing police officer that she was working for someone else to carry the dangerous drug. She knew what she was carrying was dangerous drug.

3. She applied for leave to appeal against conviction and sentence.

4. Her application for leave to appeal against conviction was refused by Keith JA and she renews her application now. She was granted leave to appeal against sentence.

5. As she told Keith JA in her last application, she pleaded guilty voluntarily after her counsel explained to her she would have the benefit of a substantial discount if she pleaded guilty. She accepted that advice.

6. In a notice of appeal she explained she committed the offence out of loyalty and gratitude to her boy friend who provided her with lodging and lived with her for four months. She was not aware that the substance was dangerous drug. She was told to admit by the police officers who assaulted her during her interview.

7. The applicant was represented by counsel at the time when she pleaded guilty and she appreciated the consequences of the plea. It was an voluntary and unequivocal admission of guilt and plea to the charge. She has not today advanced any ground as to why she should be allowed to reverse her plea. The application for leave to appeal against conviction is dismissed.

8. On sentence, Deputy Judge Wong adopted a starting point of 9 years imprisonment and discounting it by one-third, he imposed a sentence of 6 years. The starting point was well within the guidelines of AG v Ching Kwok-hung [1991] 2 HKLR 125. The discount was the usual one-third for a plea.

9. The role played by an offender is always part of the circumstances for a sentencing Judge to consider. In the present case, the appellant admitted she worked for her boyfriend and was sent by him to collect the bags from a staircase in Mongkok to take them to Wanchai for delivery to a buyer. She saw the drug in the bags and she was told by her boyfriend it was dangerous drug. She was not an innocent courier for the man. She was his partner in the trade of trafficking in dangerous drug. I see no ground to interfere with the sentence. The appeal against sentence is dismissed.

Hon Stuart-Moore, Ag CJHC:

10. When leave to appeal against sentence was granted by the single judge, Keith JA delivered a judgment setting out his reasons for so doing. He stated that it appeared as if the trial judge had decided on a starting point of nine years' imprisonment by a "mathematical and mechanical application of the tariff" by taking into account only the amount of ice involved. He went on to say that the Applicant was "simply a courier taking ice from one point of the chain of distribution to another" and that it was arguable that the starting point taken by the judge had not taken into account the degree of the Applicant's involvement in the drugs trade.

11. If what was being implied by Keith JA was the suggestion that a "simple courier" is deserving of less than a tariff sentence under the guidelines, (whether these are in respect of ice in Attorney General v Ching Kwok-hung (1991) 2 HKLR 125, or heroin in R v Lau Tak-ming & Anor (1990) 2 HKLR 370), we feel bound to say we disagree with such a notion.

12. Keith JA continued in his judgment by summarising the effect of a passage taken from Lau Tak-ming (above), and said:

"The degree of an offender's involvement in the drugs trade was a factor which the Court of Appeal in Lau Tak-ming said should be taken into account in deciding where within a suggested band a sentence should be."

13. Keith JA went on to say that by a similar line of reasoning it was arguable that the degree of a person's involvement in the heroin trade "and other factors enumerated in Lau Tak-ming" should apply to the tariffs for trafficking in other forms of hard drugs.

14. The passage in Lau Tak-ming (at page 386E) to which Keith JA was referring should be put in its full context. The court in that case said:

"The tariffs which we are about to set out are intended for imposition after trial.

Within the suggested bands factors which the sentencing judge may properly take into account are: the profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.

This court must guard against ... the tailoring by the dealer of the quantities he sends out into the street and procures for his sellers to sell, his couriers to carry or his storekeepers to keep so as to reduce, for them, the length of the inevitable custodial sentence which will be passed on conviction - playing the 'Bands' in other words." (Emphasis added)

15. It is quite apparent from this passage in Lau Tak-ming that the court had no intention of treating couriers or storekeepers of heroin as if they were deserving of more lenient treatment than the guideline tariffs generally suggest. The same would obviously apply to couriers and storekeepers of ice. Not even youth, old age or disability will carry much weight and more often than not it carries none.

16. The policy of this court in relation to trafficking in drugs of these kinds has been to maintain a consistent level of sentencing under the guideline cases earlier mentioned so that potential traffickers, who are frequently couriers or storekeepers, will be deterred from engaging in such activities. Consistency, in this context, is related to sentences which are largely based upon the weight of the drugs being trafficked. If this court were to decide otherwise, the courts at first instance would find themselves endlessly being asked to consider the degree of culpability related to individual couriers and storekeepers. The guidelines, whilst of course not strait-jackets, are there to provide and maintain consistency of sentence between all offenders who traffick in dangerous drugs. It is important for the courts to avoid distinctions, which will often be irrational or speculative, being drawn between drug traffickers who are couriers or storekeepers because the resulting disparity in the levels of sentence will understandably lead to feelings of grievance.

17. Whilst those who play an aggravated role in the drugs trade, such as the manufacturers, the wholesalers and the "bosses" who send the couriers out onto the streets to traffick can all expect longer sentences than the couriers and storekeepers, the couriers and storekeepers themselves cannot expect to receive less than the tariff sentence.

18. I agree with the judgment already given by Leong JA that these applications relating to conviction and sentence must be dismissed.

Hon Stock JA:

19. I agree with both judgments. I have nothing to add.