HKSAR v. Gopal Muthusamy

CAC C 238/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 238 OF 2010

(ON APPEAL FROM HCCC NO. 17 OF 2010)

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BETWEEN

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Before: Hon Stock VP and Cheung JA in Court

Dates of Hearing: 20 January 2011 and 13 July 2011

Date of Judgment: 13 July 2011

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.On 18 June 2010 the applicant pleaded guilty before Deputy Judge Patrick Li in the Court of First Instance to one count on an indictment which alleged that on 22 July 2009, at the Customs Arrival Hall at the Hong Kong – Macau Ferry Control Point, Sheung Wan, he unlawfully trafficked in 1530.49 grammes of a mixture containing 1343.79 grammes of heroin hydrochloride. He was sentenced to 16 years 4 months’ imprisonment. He now seeks leave to appeal that sentence.

2.The applicant is a Malaysian national and was aged 49 years at the time of the offence, is a person of previous good character and it was said in mitigation that before the offence he was a food and beverages manager in an hotel in Malaysia.

3.The agreed facts were that at 12:35 pm on 22 July 2009 he was intercepted going through the green channel of the customs arrival hall, that he was carrying a suitcase which was subjected to an x-ray and then opened and that inside the suitcase were hidden compartments containing the drugs.

4.The applicant was cautioned and said that he did not know the nature of the stuff and was going to give the stuff to the friend of a friend at an hotel.  On his person was found a piece of paper on which was written: “From Hong Kong take taxi to hotel – Hotel Cary, 4^th Floor”, with the address and a telephone number on it.  The applicant told a senior Customs officer that he was instructed to hand the suitcase over to an African male at that hotel.  The agreed facts show that, with the applicant’s consent, the officers mounted a controlled delivery operation at Room 3002 of that hotel.  The suitcase was placed on the floor and officers hid themselves inside the bathroom of the hotel room.

5.At 7:40 pm that evening an African male arrived in the corridor outside the room, telephoned the applicant who was inside the room, knocked on the door and entered and after a short conversation the two of them left the room with the applicant carrying a suitcase behind the other man. The African male was then intercepted and arrested and both the applicant and the African were taken to the Customs offices for investigation.

6.In his subsequent interview, the applicant told the officers the name of his Malaysian friend who had sponsored the applicant’s tickets to Hong Kong via Macau knowing that the applicant was keen to look for a job in the catering or hotel industry here and also gave him the suitcase.

7.The street value of the drugs found in the suitcase was $1,274,898.

8.Following the guidelines laid down in HKSAR v Abdallah [2009] 2 HKLRD 437, the sentencing judge took a starting point of 23 years and 3 months’ imprisonment for the quantity of heroin, added 2 years to reflect the aggravating feature constituted by the international element and deducted one-third from the resulting point of 25 years 3 months’ imprisonment plus an extra 6 months for the applicant’s attempt to assist with the controlled delivery; the judge saying that although the controlled delivery resulted in no arrest, the applicant’s intention to assist had been genuine.  This is how the judge arrived at the sentence of 16 years 4 months’ imprisonment.

9.This application came before this court, as presently constituted, on 20 January 2011 when we granted the applicant legal aid because we were concerned to be addressed in relation to two matters.  The first was whether the plea was equivocal; the second, whether sufficient credit was given for the applicant's assistance in the controlled delivery.

10.As to the plea, there seemed to us to be some room for contradiction between part of the mitigation advanced at the sentencing hearing and the plea of guilty, even though it seemed clear enough that at the end counsel was telling the judge that the applicant indeed knew, when he brought the suitcase into Hong Kong, that it contained dangerous drugs.  We wanted to make sure that there had been no misunderstanding about the matter.

11.In the event, we are advised by those acting on behalf of the applicant that the question has been examined and the applicant consulted and that it is not intended to advance any argument as to equivocal plea.

12.In relation to the question of assistance with the controlled delivery, there really was scant information placed before the judge as to precisely what happened and why it was that the applicant's assistance turned out to be fruitless.  The judge was told that “the other man was released because of insufficient evidence to link him with this charge.”  So in this regard, we sent a letter in advance of the first hearing before us asking for further information, and that information has been provided.

13.It transpires that the applicant had told the Customs officers that he had been asked to hand the suitcase over to an African male once he arrived at his hotel in Hong Kong and when he, the applicant, was asked if he was willing to participate in a controlled delivery, he replied that he was willing to do so.

14.Once the applicant and the officers arrived in the hotel room, the applicant received telephone calls from his Malaysian friend asking why he had arrived late at the hotel and the applicant told him that he had lost his way.  Somebody else called and the applicant was told that an African would come to collect the suitcase.  There were further calls made to the applicant and, according to the applicant in his interview, these were to suggest that he should come out for dinner and pass the suitcase at the dinner but the applicant insisted that the caller come to his room to collect the suitcase.  Thereafter the African arrived.

15.The African who arrived has been named and is a national of Nigeria.  It is accepted that he walked to Room 3002, called the applicant on his mobile telephone and then entered the room.  There was a conversation between the applicant and the African but the Customs officers did not hear the conversation.  Eventually the two men, that is, the applicant and the African, left the room with the applicant carrying the suitcase.  The African was then intercepted and arrested and said that the suitcase did not belong to him and that he knew nothing about it.  He was released due, we are told, to “lack of sufficient evidence”. 

16.It is not clear why the other man was arrested before the suitcase was delivered either to him or to the person or persons he intended to meet.  But Ms Lau, for the respondent, tells us that the officers thought that the African might have suspected something amiss, and therefore left.  If so, we cannot assume that that lay at the door of the applicant.  We must proceed on the basis that he was prepared to assist to the stage of a fruitful delivery to the African, or to the person to whom the African was to direct or take the drugs.

17.In these circumstances, we think that the discount of 6 months given by the judge was too little.  We think that the appropriate sentence is one of 15 years’ imprisonment and accordingly, we grant leave to appeal against sentence, treat the hearing of the application as the appeal, allow the appeal, set aside the sentence of 16 years 4 months’ imprisonment and substitute therefore a sentence of 15 years’ imprisonment.

Ms Virginia Lau, SPP, of the Department of Justice, for the Respondent

Mr Paul Loughran, instructed by Messrs Betty & Co., assigned by Director of Legal Aid, for the Applicant