HKSAR v. Touray Edrisa and Another
Read the full judgment text of CACC 124/2010 on BabelCite. This Court of Appeal judgment was delivered on 26 August 2011 before Hartmann JA, Kwan JA, Lunn J.
Criminal law – dangerous drugs – trafficking contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134) – possession of a dangerous drug – importation of 30.20 kg of herbal cannabis from South Africa into Hong Kong – locally recruited collector and organiser of the collection at BP International House – appeal against conviction and sentence – whether trial judge erred in ruling a case to answer and in applying the s.47(1) and (2) presumptions – whether wholly exculpatory out-of-court statements can discharge the evidential onus – whether joint enterprise to traffic in contents of both suitcases established – whether erroneous finding that 1st applicant introduced 2nd applicant as 'his brother from South Africa' was a material irregularity – whether starting point of 6 years for the 1st applicant and 5½ years for the 2nd applicant was appropriate – whether inability to pay a fine justified imprisonment for simple possession – whether concurrent sentencing appropriate where one charge involves trafficking of 30.20 kg and another simple possession of 0.6 g of cannabis for personal use – 1st applicant's renewed application for leave to appeal against sentence dismissed – 2nd applicant's application for leave to appeal against conviction dismissed – sentences on 2nd applicant quashed and replaced with 5 years' imprisonment on Charge 2 and 7 days' imprisonment on Charge 3, to be served concurrently, total 5 years – Court of Appeal's approach of eschewing s.47 presumptions in favour of pure circumstantial analysis endorsed – joint enterprise to collect and traffic in contents of both suitcases upheld – error as to 'brother from South Africa' remark not material – starting point of 6 years with one-third discount appropriate for 1st applicant given role equivalent to physical importers – starting point of 5 years appropriate for 2nd applicant as a locally recruited 'follower' – imprisonment for simple possession wrong in principle where fine with default term appropriate, per R v Chan Yuk Choi – concurrent sentences appropriate given vast disparity in quantities, per HKSAR v Chan Pui Chi.
Legal issues: Sufficiency of evidence for case to answer and operation of s.47 presumptions · Weight of wholly exculpatory out-of-court statements · Joint enterprise / joint custody inference of trafficking · Erroneous factual finding regarding 'brother from South Africa' remark · Starting point and reduction for the 1st applicant's sentence · Starting point for the 2nd applicant's sentence on Charge 2 · Imposing imprisonment for Charge 3 because of inability to pay a fine · Concurrent versus consecutive sentencing for trafficking and possession
Outcome: 1st applicant's renewed application for leave to appeal against sentence dismissed. 2nd applicant's application for leave to appeal against conviction dismissed. 2nd applicant's application for leave to appeal against sentence allowed; sentences on Charges 2 and 3 quashed and replaced.
Cited by 27 cases · Cites 4 cases
|
CACC124/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 124 OF 2010 (ON APPEAL FROM DCCC 1195 OF 2009) ---------------------------- BETWEEN
---------------------------- Before : Hon Hartmann, Kwan JJA and Lunn J in Court Date of Hearing : 11 August 2011 Date of Judgment : 11 August 2011 Date of Reasons for Judgment : 26 August 2011 ---------------------------- REASONS FOR JUDGMENT ---------------------------- Hon Lunn J (giving the Reasons for the Judgment of the Court): 1.At the hearing on 11 August 2011, we dismissed the 1st applicant’s renewed application for leave to appeal against sentence, it having been refused by order of the single judge on 30 November 2010. Similarly, we dismissed the 2nd applicant’s application for leave to appeal against his conviction in respect of a single charge of unlawfully trafficking in a dangerous drug, but we allowed his application for leave to appeal in respect of the sentence imposed on that charge and a charge of possession of a dangerous drug. We quashed those sentences and, in their place, imposed reduced sentences of imprisonment on the 2nd applicant. We said that we would give our reasons in due course. That we do now. THE CHARGES 2.By Charge 2, the 1st and 2nd applicants were charged jointly with trafficking unlawfully in a dangerous drug, namely 30.20 kg of cannabis in a herbal form, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The offence was alleged to have been committed on 12 July 2009 in Room 1926 of BP International House, 8 Austin Road, Tsim Sha Tsui. By Charge 3, the 2nd applicant was charged with possession of a dangerous drug, namely 0.6 g of cannabis in herbal form, in the same premises on the same occasion. THE TRIAL 3.On arraignment the 1st applicant pleaded guilty to Charge 2 and was sentenced to 4 years’ imprisonment and the 2nd applicant pleaded guilty to Charge 3. Following his conviction on 23 March 2010 after trial by HH Judge Mary Yuen on Charge 2, the 2nd applicant was sentenced to 5 years and 6 months’ imprisonment on that charge and 2 months’ imprisonment on Charge 3. The judge ordered that 1 month of the term of imprisonment imposed in respect of Charge 3 be served consecutively to the sentence imposed in respect of Charge 2. Accordingly, the total sentence of imprisonment imposed on the 2nd applicant was 5 years and 7 months. THE PROSECUTION CASE 4.The prosecution case at trial against the 2nd applicant was that the 1st and 2nd applicants had come to collect the dangerous drugs, which were contained in two suitcases, from Room 1926 of BP International House, in which two co-accused at trial were present co-operating with Customs and Excise officers. They had been arrested at Hong Kong International Airport on their arrival from Johannesburg in South Africa earlier in the day on 12 July 2009. The authorities had discovered herbal cannabis contained in the suitcase each of them was carrying and had arranged for them to implement the arranged delivery of the two suitcases to others in Room 1926 of BP International House. Customs officers hid in the bathroom of the room, whilst others kept watch outside. 5.At trial the erstwhile 1st defendant, Ms Karen Le Roux, testified as to the entry of the 1st and 2nd applicants into Room 1926, which she and the 2nd defendant, Mortimer Van Der Westhuizen, occupied. The1st applicant asked for the 2nd defendant by name. He emerged from the bathroom. Then the 1st applicant asked them, “Did everything go well through Customs?” She replied in the affirmative. She replied in the negative to his question as to whether or not anyone had asked any questions. The 2nd defendant replied in the affirmative to the 1st applicant’s question as to whether or not the suitcases which were in the room were the ones which he was collect. Next, at the 2nd defendant’s request that permission for the collection be confirmed with a man called ‘America’, who was in South Africa, the 1st applicant used his mobile telephone to call a number provided by the 2nd defendant, who in turn sought permission from the recipient of the call to hand over the suitcase. Then, the 1st applicant took one of the suitcases and told the 2nd applicant, “You may take the suitcase”. The 1st applicant replied in the affirmative to the 2nd applicant enquiry, “Is this it?” 6.Ms Le Roux said that she gave the 1st applicant a set of two keys to one of the suitcases. The 2nd defendant also handed over a set of keys, but she was not sure to which of the two applicants. Each of the applicants took hold of one of the suitcases. 7.Customs officer Leung Tik Fai, CO 9953, saw the two applicants from his surveillance position outside the room as the door opened and the two applicants began to leave. As he moved forward, the 2nd applicant moved backwards, tripped and fell down. He arrested the 2nd applicant inside the room on the basis that he suspected he was connected with a dangerous drug case. In reply to the words of caution, the 2nd applicant merely said “Yes”. A search of his person revealed a packet in the 2nd applicant’s shirt pocket. The contents of the packet having tested positively to a narcotic tester, Customs officer Leung repeated the words of caution to the 2nd applicant and received the same response, namely an affirmative answer that he understood the words of caution but, in addition, that he had nothing to say. In his resumed search of the 2nd applicant, Customs officer Leung found a set of two keys in his trouser pocket. In front of the 2nd applicant he used the keys to successfully open a padlock on the blue suitcase. THE 2ND APPLICANT’S CASE 8.The 2nd applicant did not give or call evidence in the defence case. In cross-examination, Customs officer Leung denied the suggestion that he had not used the keys to open the padlock to the blue suitcase in the presence of the 2nd applicant. However, he agreed that he had not opened up the blue suitcase to make visible its contents in front of the 2nd applicant. The officer agreed that he was present on the afternoon of the 13 July 2009 when an interview was conducted of the 2nd applicant. He agreed that the 2nd applicant had denied using the keys and said that he knew nothing about the drugs in the suitcase. He accepted that the 2nd applicant said that whilst he accepted responsibility for the cannabis found in his shirt pocket he knew nothing whatsoever about the drugs in the suitcase. REASONS FOR VERDICT 9.Having determined at the end of the prosecution case that there was a case to answer for the 2nd applicant on Charge 2, and having received closing submissions from counsel, the judge convicted the 2nd applicant on that charge. 10.The judge found that the two suitcases, one orange and one blue, seized from the 1st and 2nd applicants in Room 1926 contained the herbal cannabis stipulated in the Particulars of Offence of Charge 2 and had been imported into Hong Kong by the 1st and 2nd defendants at trial. 11.Of events that had occurred in Room 1926, the judge determined that Ms Le Roux had given the keys to the blue suitcase to the 1st applicant. She accepted that those keys had been found by Customs officer Leung in the trouser pocket of the 2nd applicant. She determined that the 1st applicant had given those keys to the 2nd applicant. Furthermore, the 2nd applicant was in physical possession of the blue suitcase as he was about to leave the room and knowingly in possession of keys to the padlock of that suitcase. 12.The judge identified the crucial issue as being: “whether D4 was a mere custodian of the suitcase with no knowledge of its content or whether D4 had full knowledge of the drugs within the suitcases, thus possessing the suitcase as well as the cannabis in it.” Section 47(1) and (2) : presumptions 13.The judge determined that, since physical possession of the blue suitcase and the keys to the padlock of that suitcase was proved, section 47(1) of the Dangerous Drugs Ordinance, Cap 134 was operative, namely that the 2nd applicant was presumed to have knowledge of what was contained in the suitcase. Further, that by operation of section 47(2) of the Ordinance it was presumed that the 2nd applicant had “… knowledge of the nature of the drugs proven or presumed to be in his possession.” However, the judge went on to note (paragraph 66) :
14.The judge identified the 2nd applicant’s denial of knowledge of the contents of the suitcase in his record of interview on 13 July 2009 as being evidence to which the 2nd applicant could point as raising the evidential issue. However, she noted that when cautioned in respect of the discovery of the packet of herbal cannabis in his shirt pocket, the applicant had said in answer to the question as to what it was, “I don’t know”. (See paragraph 17 of the Admitted Facts.) Of those answers, she determined that all that the 2nd applicant was doing was (paragraph 72), “… no more than giving an exculpatory response when confronted with the possession of cannabis found in his shirt pocket and the bulk of cannabis found inside the suitcase.” In the result, she concluded :
15.Notwithstanding that determination, the judge proceeded to consider whether or not the prosecution had proved (paragraph 74) :
16.The judge rejected the prosecution submission that she could rely on the fact of the finding of the small packet of cannabis in the 2nd applicant’s shirt to draw the inference of the 2nd applicant’s “knowledge of the cannabis found inside the suitcase.” 17.Having noted that the 1st applicant was the person most engaged in conversation with the 1st and 2nd defendants, the judge observed that nevertheless the 2nd applicant was present during the conversation in which the 1st applicant posed questions of the 1st and 2nd defendants as to whether there had been “any problems with Customs and if questions had been asked”. Also, she noted that the 2nd defendant had insisted on obtaining confirmation by telephone from ‘America’ before handing over the suitcases. Of that exchange, the judge determined :
18.Having stated that she took judicial notice of the fact that the quantity of herbal cannabis in each of the suitcases was of substantial value, the judge determined :
The judge stated that she drew the irresistible inference that the 2nd applicant was such a party. 19.Although the judge noted that the 2nd applicant was never in physical possession of the orange suitcase or its keys and stated that the statutory presumption did not arise, nevertheless the judge determined that the 2nd applicant was a party to a “joint enterprise” to take delivery of both suitcases and their contents, of which the 2nd applicant had the requisite knowledge. Finally, the judge determined that the 2nd applicant was in actual and legal possession of the blue suitcase and its contents and had joint custody and control, i.e. legal possession of the dangerous drugs in the orange suitcase. In the result, she found that the 2nd applicant was unlawfully trafficking in the herbal cannabis contained in both suitcases. THE 2ND APPLICANT’S GROUNDS OF APPEAL AGAINST CONVICTION 20.By ground 1, Mr Tolliday-Wright submitted that the judge erred in ruling that there was a case to answer for the 2nd applicant on Charge 2. That was the case because of her subsequent determination that it was impermissible to draw the inference that the 2nd applicant knew of the nature of the contents of the suitcases from the evidence of the finding of a small packet of herbal cannabis in his shirt pocket. In her ruling of a case to answer, the judge had said that it would be a matter on which she would receive submissions at the end of the day. 21.By ground 2, it was submitted that there was an insufficient evidential basis upon which the judge could determine that the statutory presumptions in section 47(1) and (2) of the Dangerous Drugs Ordinance arose. In the first place, the prosecution had stated at the commencement of the trial that they did not place reliance on the presumptions. Further, the judge erred in law and fact in determining that on all the evidence the 2nd applicant had not raised the evidential issue that he had no knowledge of the contents of the suitcases. There was evidence from Customs officer Leung that the 2nd applicant had denied knowledge of the dangerous drugs contained in the suitcases when a record of interview was conducted of him. 22.By ground 3 it was contended that the judge had erred in determining that the 1st applicant had introduced the 2nd applicant to the 1st and 2nd defendants in Room 1926 of BP International House as “his brother from South Africa”. In context, it was clear that in saying what he said the 1st applicant was referring to the person called ‘America’, to whom he had spoken on the telephone at the request of the 2nd defendant to obtain permission for the release of the suitcases to the applicants. A CONSIDERATION OF THE SUBMISSIONS As to grounds 1 and 2 23.Section 47 of the Dangerous Drugs Ordinance provides :
24.It is clear from the judgment of this court, affirmed by the Court of Final Appeal, in HKSAR v Hung Chan Wa & Another (2006) 9 HKCFAR 614 at 648, paragraphs 85 and 86, that the provisions are to be construed as creating an evidential onus only. 25.There is no dispute that on the evening of 12 July 2009 as the 2nd applicant left Room 1926 of BP International House he was in physical possession of the blue suitcase and a set of keys which fitted the padlock to the suitcase. As the judge noted, the applicants were captured earlier on the CCTV recording of BP International House as they entered the hotel, proceeded to the lift lobby, entered and travelled up in the lift, exited the lift and made their way to Room 1926. It was an admitted fact that the 1st applicant had received information as to the room number and the telephone number, of the telephone provided by Customs to the 2nd defendant, in a SMS from a man called Ernest who had a South African telephone number. Throughout that journey, the 2nd applicant followed the 1st applicant. Whilst in the corridor of the floor on which Room 1926 was located the 1st applicant made a telephone call which was answered by the 2nd defendant. 26.As the judge noted, Ms Le Roux said that the 1st applicant did most of the talking inside the room, “while D4 (the 2nd applicant) hardly spoke.” However, albeit that the conversation in the room was brief, it involved enquiries by the 1st applicant as to whether or not everything had gone well with Customs and if they had any questions. Also, there was discussion on the telephone, in a call initiated by the 1st applicant, to obtain permission to leave with the suitcases. Keys to the suitcases were handed over. When asked by the 1st applicant to take a suitcase, the 2nd applicant did so. Shortly afterwards, having been prevented from leaving the room carrying the suitcase, keys to the blue suitcase were found on the 2nd applicant. 27.Although Mr Tolliday-Wright said that it was his memory, as counsel for the 2nd applicant at trial, that at the commencement of the trial the prosecution had eschewed reliance on the presumptions provided for by section 47(1) and (2) of the Dangerous Drugs Ordinance, he was unable to identify when that was, so that the audio tape could be listened to and a transcript made. Certainly, that contention sits ill with the manner in which the prosecution closed its case, namely inviting the court to find that an evidential presumption did arise in connection with the blue suitcase, albeit not in respect of the orange suitcase. 28.Clearly, having regard to the evidence in the round, the presumptions provided for by section 47(1) and (2) arose, in particular the undisputed evidence that the 2nd applicant was in physical possession of the blue suitcase and the keys that fitted its lock. The evidential onus 29.As noted earlier, the judge identified the 2nd applicant’s denial of knowledge that drugs were contained in the blue suitcase, in a record of interview conducted of him on 13 July 2009, as being evidence to which regard was to be had in determining whether or not the 2nd applicant had satisfied the evidential onus. Although evidence had been led, through Customs officer Leung, that the record of interview was one hour and 22 minutes in length, the ambit of the evidence placed before the judge was narrow in the extreme. The following exchange occurred in cross-examination by Mr Tolliday-Wright of Customs officer Leung in respect of the record of interview (transcript, page 84) :
30.A short while later the judge intervened, pointing out that the court had received no evidence of any admission by the 2nd applicant. The judge accepted Mr Tolliday-Wright’s reply that what he wished to do was to adduce evidence that, when challenged with the discovery of the herbal cannabis in the suitcase, the 2nd applicant had denied anything to do with those drugs. She noted that he had elicited that evidence already. Mr Tolliday-Wright told the judge repeatedly that the evidence was led on the basis that it was the 2nd applicant’s “reaction when the…allegations were put to him”. 31.As noted earlier, the judge determined of the 2nd applicant’s denials in the record of interview that they were no more than an exculpatory account. In the result, she determined that the 2nd applicant had not satisfied the evidential onus. A wholly exculpatory out-of-court statement 32.A wholly exculpatory out-of-court statement is inadmissible as to the facts stated therein. However, it may be evidence of the reaction of a defendant when accused of the offence. In the Attorney General v Li Siu Lam [1989] 2 HKLR 370 this court was seized of an appeal by way of Case Stated from the District Court in which issue was taken by the Attorney General in respect of the admission into evidence, contrary to the wishes of the prosecution, of three cautioned statements taken from the respondent, which were entirely self-serving. The judge had permitted the evidence to be adduced in cross-examination of a police officer by counsel for the defendant. In his judgment, Silke VP observed (page 373H) :
33.Of the purpose of admitting such statements, Silke VP went on to say that :
34.In R v Lambert [2002] 2 AC 545, by a majority, the House of Lords determined that the imposition of a persuasive burden on the defendant to prove absence of knowledge by way of a defence to a charge of being in possession of a dangerous drug with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act, 1971 could not be justified as being no more than necessary for the achievement of the legitimate objective, of grappling with the acute problem of dangerous drugs and the sophisticated techniques employed by those unlawfully trafficking, and that it should be treated as an evidential onus. In addressing concerns that such an onus was illusory, Lord Steyn considered in particular the ability of an accused in a drugs case to manipulate the system by providing a mixed statement containing a self-serving explanation that he did not know what was in the package. Of that, he said (page 573 B-E, paragraph 39) :
35.In our judgment there is no doubt that the judge was correct to rule that there was a case to answer for the 2nd applicant on Charge 2. The judge’s reference to the consideration that might be given to the relevance or otherwise of the discovery of the package of cannabis in the 2nd applicant pocket is nothing to the point. 36.In his judgment in Hung Chan Wa, Sir Anthony Mason NPJ approved specifically of those passages from the judgment of Lord Steyn (see page 647F-G, paragraph 83). Similarly, he approved of Lord Steyn’s suggestion that the jury be invited to consider the commonsense point :
37.As noted earlier, although the judge determined in terms that the 2nd applicant had not satisfied the evidential onus arising in the operation of the presumptions, she did not proceed to find the 2nd applicant guilty of Charge 2 there and then, rather she proceeded to a consideration in respect of his knowledge of the presence of the dangerous drugs in the blue suitcase on an analysis of “all the circumstantial evidence”. 38.In determining to draw the irresistible inference that the 2nd applicant was “fully aware of the contents within the suitcase and he was a party of this collection team with D3” the judge was entitled to have regard as significant the evidence to which she adverted. Firstly, that the 2nd applicant was present at the conversation within the room when issues were raised as to whether or not there had been any problems with the Customs at the airport and the telephone call which was made to ‘America’ to obtain his consent to the release of the suitcases to the applicants. Secondly, that the 2nd applicant had been entrusted not only with the blue suitcase but also the keys to the padlock on the suitcase, the contents of which suitcase were of substantial value. Conclusion 39.In the result, we are satisfied that there was ample evidence upon which the judge was entitled to determine by operation of the presumptions and/or by consideration of all the circumstantial evidence that the 2nd applicant unlawfully trafficked in the herbal cannabis in the blue suitcase. In respect of the evidential onus arising by operation of the presumptions, the judge was entitled not to give any weight to the wholly exculpatory statements made by the 2nd applicant in his record of interview. 40.The judge’s exercise of approaching the issue on a ‘belt and braces’ basis, namely by considering first of all the operation of the presumptions and then all the circumstantial evidence was entirely unnecessary. In the event, it would have been much simpler to have adopted the advice of this court articulated in the judgment of Stuart-Moore VP in HKSAR v Chiu Wing Nam, Dick (unreported, CACC423/2003 at paragraph 12) to eschew the use of the presumptions. 41.Having regard to the findings that the judge made in respect of her consideration of the circumstantial evidence in relation to the blue suitcase, the judge was entitled to come to the conclusion that he was a party to a joint enterprise to take delivery of both suitcases and that he knew that they contained dangerous drugs. Ground 3 42.The judge fell into error when she said that the 1st applicant had introduced the 2nd applicant to the 1st and 2nd defendants as “his brother from South Africa (paragraphs 49(o), 88, 92 and 101.) The 1st applicant did not do so. Rather, that was a reference to ‘America’ the person in South Africa to whom he had spoken on the telephone in order to obtain his permission for the 1st defendant to release the suitcases to the applicants. It is to be noted that, having made that incorrect assertion yet again, the judge added:
Certainly, the judge did not articulate any inference adverse to the 2nd applicant that she drew from her incorrect recollection of the evidence. Conclusion 43.Whilst we are satisfied, as we have stated, that the judge was in error we are equally satisfied that there was no material irregularity. There being no merit in any of the proposed grounds of appeal against conviction, the application for leave to appeal against conviction by the 2nd applicant was dismissed. THE 1ST APPLICANT’S GROUNDS OF APPEAL AGAINST SENTENCE 44.In his home-made grounds of appeal against sentence, the 1st applicant submits that the judge erred in not properly considering his role in the events that are subject of Charge 2. In particular, he contends that the judge erred in taking the same starting point for sentence, namely 6 years in prison, as she did for the 1st and 2nd defendants at trial. They had imported the herbal cannabis and had done so for reward: their flights and accommodation were paid for and they received US $300 each. 45.The 1st applicant invited the court to note that in the Attorney General v Tuen Shui Ming [1995] 2 HKC 798 Power VP in the judgment of this court indicated that in a case involving unlawful trafficking of a little over 51 kg of cannabis resin the appropriate starting point would have been 7 years imprisonment, reduced to 6 years in the circumstances of the case having regard to the low concentration of tetrahydrocannabinol. Of the approach to be taken in respect of herbal cannabis, Power VP said (page 805A-B) :
The 1st applicant reminded the court that the amount of herbal cannabis in which he unlawfully trafficked was 30.20 kg. THE 2ND APPLICANT’S GROUNDS OF APPEAL AGAINST SENTENCE 46.It was submitted on behalf of the 2nd applicant that the total sentence of 5 years and 7 months’ imprisonment imposed upon him by the judge in respect of the two charges was manifestly excessive and/or wrong in principle having regard to all the circumstance, in particular the 2nd applicant’s role and having regard to the totality of sentence. THE REASONS FOR SENTENCE 47.The judge imposed sentence on the 1st applicant, together with the erstwhile 1st and 2nd defendants at trial, on 25 March 2010, but imposed sentence on the 2nd applicant separately on 15 April 2010. Generally, it is undesirable that sentence is passed on separate occasions on defendants who are joined together in a single indictment. It appears that the course was taken in this case because the judge had ordered that bone tests be performed on the 2nd applicant in order to determine his age. The 1st applicant 48.In imposing sentence on the 1st applicant and the 1st and 2nd defendants at trial, the judge noted that the 1st and 2nd defendants had directly imported the herbal cannabis into Hong Kong. Of that, she said (paragraph 20), “It is well recognised that an international dimension to an offence increases the gravity of the matter”. 49.The judge noted that the 1st applicant had no criminal record. Of his role, she determined, “the evidence showed he had kept a close contact with the African source to enable him to collect the two cases of drugs”. In the result, she determined (paragraph 21) :
Starting point 50.In determining the appropriate starting point the judge referred to the judgment of this court in Tuen Shui Ming and to the passage from the judgment of Power VP quoted above. Then, the judge made reference to subsequent judgments of this court in which consideration was given to the appropriate starting point in cases of unlawfully trafficking in herbal cannabis :
51.Noting that in the present case there had been no dissipation of the amount of herbal cannabis imported into Hong Kong, the judge stated that she took a starting point to 6 years’ imprisonment. Applying a discount of 50% to their starting point for their pleas of guilty and willingness to give evidence against the other co-accused, the judge imposed sentences of 3 years’ imprisonment on the 1st and 2nd defendants. For his plea of guilty, albeit at a late stage, the 1st applicant was given a one third discount from the starting point. The 2nd applicant 52.In sentencing the 2nd applicant, the judge noted that his true identity could not be established. He claimed to be a national of Nigeria, but it was not known when, how or why he entered Hong Kong. He had no criminal record. His age had been estimated at about 19 years from a bone test. The judge accepted that there was no evidence of any connection with the drug supplier in South Africa, namely the person known as ‘America’. She proceeded to sentence on the basis that the 2nd applicant (Appeal Bundle page 62, paragraph 11), “was recruited locally for the collection of the drugs alone”. Charge 2 53.In the result, she adopted a starting point sentence in respect of Charge 2 of 5½ years’ imprisonment. Given that the 2nd applicant was convicted after trial, that was the sentence of imprisonment she imposed on him on that charge. Charge 3 54.In respect of Charge 3, having noted that the 2nd applicant was not in a position to pay a fine, the judge took a starting point of 3 months’ imprisonment which, taking account of his plea of guilty on this charge, she discounted by one-third. In the result, the sentence she imposed on Charge 3 was 2 months’ imprisonment. 55.On the basis that unlawful trafficking and possession of dangerous drugs for personal use were different offences of a different nature she determined that they ought to be treated separately. In the result, she ordered 1 month of the 2 month sentence of imprisonment imposed in respect of Charge 3 to be served consecutively to the sentence of 5 years and 6 months’ imprisonment imposed in respect of Charge 2. Accordingly, the total sentence of imprisonment imposed on the 2nd applicant was 5 years and 7 months. A CONSIDERATION OF THE SUBMISSIONS The 1st applicant 56.There is no dispute that the 1st applicant visited Room 1926 in order to collect the two suitcases containing over 30 kg of herbal cannabis from the erstwhile 1st and 2nd defendants. He did so, on the basis of information supplied to him from South Africa. His role was crucial, creating the link between the importers of herbal cannabis, so that distribution could be affected. The judge was entitled to treat, as she did, the gravity of his conduct on the same basis as that of the physical importers. He was part of the same organization. They played different parts in achieving the same overall objective. 57.Clearly, the judge took great care in stipulating the appropriate starting point for sentencing the 1st applicant on Charge 2. She noted that the inferred starting point taken as appropriate by this Court in George for unlawful trafficking in19.06 kg of herbal cannabis, which had been imported from South Africa, was five years and three months imprisonment. The amount in which the 1st applicant unlawfully trafficked was more than 50% greater than that amount. The judge was entirely justified in taking a starting point of 6 years’ imprisonment in respect of the 1st applicant on Charge 2, applying a discount of one third, and imposing a sentence of 4 years’ imprisonment on the 1st applicant. There was no merit whatsoever on the proposed grounds of appeal against sentence. The 2nd applicant Charge 2 58.As noted earlier, the judge made it clear that she approached the determination of the appropriate starting point to be taken for sentence on Charge 2 in his case on the basis that he was “recruited locally for the collection of the drugs alone”. In consequence, she adopted a lower starting point of 5½ years imprisonment, rather than the starting point of six years imprisonment that she adopted in respect of those involved with the persons who organised the drug trafficking in South Africa, namely the 1st and 2nd defendants as physical importers and the 1st applicant as organising the collection of the herbal cannabis in Hong Kong. 59.In our judgment, there is force in the submission that in adopting a starting point of five years and six months imprisonment for the 2nd applicant the judge did not thereby adequately reflect the disparity between his role and that of his co-accused. That he was a ‘follower’ of the 1st applicant is obvious not only in the CCTV film in BP International House ,where he is seen to be trailing after the 1st applicant, but also in the very subordinate role he played in the events in Room 1926. In the result, we took the view that an appropriate starting point for sentence of the 2nd applicant on Charge 2 was five years imprisonment. Charge 3 60.In her consideration of the appropriate sentence to be imposed in respect of Charge 3, unlawful possession of 0.6 grams of herbal cannabis, the judge noted that she had been informed by counsel that the 2nd applicant that he could not pay any fine. No doubt, she made reference to that, because a modest fine was the appropriate sentence for that offence. The 2nd applicant was possessed of that herbal cannabis for his own personal consumption. He had a clear criminal record. It is wrong in principle to impose a more severe sentence upon a person because he is unable to pay a fine [see R v Chan Yuk Choi (unreported, HCMA390/1995; 19 May 1995)]. 61.In any event, the judge fell into error in determining that, given the offence of unlawful possession was different in nature to that of unlawful trafficking in a dangerous drug, their separate treatment required a part of the sentence imposed for unlawful possession of the dangerous drug to be consecutive to that imposed in respect of the unlawful trafficking. It is to be noted that in cases of multiple unlawful trafficking in dangerous drugs, that are connected closely in time and factually, this Court has said that it is appropriate for the sentencing judge to have regard to the overall quantity of the narcotic (see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830). In cases where there is a great disparity in the volume of the narcotic between one offence and another it will be appropriate to impose concurrent sentences. 62.In our judgment, the appropriate sentence the judge ought to have imposed on the 2nd applicant in respect of Charge 3 was a fine of $2,000, with 7 days’ imprisonment in default of payment. However, dealing with the circumstances as they were at the hearing, we were satisfied that the matter could be dealt with by imposing a sentence of 7 days’ imprisonment to be ordered to be served concurrently with the sentence imposed in respect of Charge 2. CONCLUSION 63.For the reasons set out above, we dismissed the 1st applicant’s application for leave to appeal against sentence. We treated the 2nd applicant’s application for leave to appeal against sentence as the hearing of the appeal and quashed the sentences imposed in respect of Charges 2 and 3. In their place, we imposed a sentence of five years imprisonment in respect of Charge 2 and 7 days’ imprisonment in respect of Charge 3, which sentences we ordered to be served concurrently. Accordingly, the total sentence of imprisonment imposed on the 2nd applicant was 5 years.
Mr Edmond Lee, Ag. SADPP, of the Department of Justice, for the Respondent Mr David Tolliday‑Wright, instructed by Messrs Yuen & Partners, assigned by Director of Legal Aid, for the 2nd Applicant The 1st Applicant, act in person | |||||||||||||||
Cases cited in this judgment
Other judgments that cite this case