HKSAR v. Zhang Saiqiong

CACC 333/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 333 OF 2011

(ON APPEAL FROM HCCC No. 148 of 2011)

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BETWEEN

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Before : Hon Lunn JA and Saw J in Court

Date of Hearing: 5 July 2012

Date of Judgment: 5 July 2012

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.The applicant appeared in person. On 7 December 2011, at a hearing before Cheung JA, she raised matters that might have supported an application to the court to treat her plea of guilty as a nullity. Although she was ordered to file an affirmation in support within 14 days, none was filed. Today, she explained that she simply forgot to do so. In her grounds of appeal against sentence, the applicant contends that the judge passed sentence on her without having a clear picture of the circumstances relevant to sentence. Also, she advances a plea for mercy on the basis that since her incarceration her husband has died and her five-year-old daughter requires her attention. At her request today we received a letter from a pastor who visits her at Tai Lam. He has visited her a number of times over the course of more than a year and tells the court that the applicant has come to accept Jesus Christ in her life. He said that she is a simple, nice woman, a good wife and mother. He repeated the applicant’s own description of her personal circumstances and that of her daughter. He endorses her request to this court for the exercise of mercy.

THE TRIAL

2.The applicant pleaded guilty on 22 July 2011, the second day of her trial, to a single count of unlawfully trafficking in a dangerous drug, namely 998.46 g of a powder containing 728.45 g of ketamine on 21 December 2010 at the Customs Arrival Hall, Lok Ma Chau Spur Line Control Point.

THE FACTS

3.The applicant accepted as the factual basis for her plea of guilty that she was found by Customs and Excise officers to be in possession of the ketamine, the subject of the count on the indictment, after she had been stopped and searched by two female Customs officers as she entered Hong Kong from the Mainland.  The search revealed that two black plastic bags containing the ketamine were held in place and concealed at her back by a corset.  Each of the black plastic bags contained two ziplock bags in which was contained the ketamine.  The applicant admitted specifically that “she knew she was carrying a dangerous drug”.

REASONS FOR SENTENCE

4.In sentencing the applicant the judge observed that the tariff guidelines appropriate for sentencing in cases of unlawful trafficking in ketamine are set out in the judgment of this Court in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  He noted that the appropriate range lay within the band of 12 to 14 years’ imprisonment, in which falls unlawful trafficking in 600 to 1,000 g of ketamine as 12 to 14 years’ imprisonment.

Starting point

5.The judge stated that he took a starting point for sentence of 12½ years’ imprisonment.

Enhancement of the starting point

6.Then, the judge stated that he enhanced the starting point for sentence by 6 months to reflect the fact of an ‘international element’ in the commission of the offence, in that the applicant had brought the dangerous drugs from the Mainland into Hong Kong.  In doing so, he said that he had regard to the judgment of this court in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, in which case it was suggested that an enhancement of sentence for the fact of an ‘international element’ was appropriate and that in the case of one kilogram of heroin hydrochloride it should be not less than two years’ imprisonment.  Having regard to the fact that the dangerous drug in which the applicant unlawfully trafficked was ketamine and not heroin for, which different tariffs are set in relation to the weight of the drugs, the judge said that he took an enhancement of sentence that was commensurately less.

Discount

7.Although the applicant had not pleaded guilty to the offence until the second day of her trial, at which point the judge was conducting a voir dire, nevertheless the judge afforded the applicant the full one third discount from that taken as the starting point.  He said that he did so because the evidence received in the voir dire was at an early stage and that the objections to admissibility were “very limited”.

8.Noting that the applicant was 38 years of age and had no criminal record, and having found her to be “a simple woman who was used and prevailed upon by others to do something you would not normally have done”, the judge afforded the applicant a further discount from the starting point of two months’ imprisonment.

9.Although the judge expressed sympathy to the applicant for the loss of her husband shortly after her arrest, he said that his personal sympathy must give way to the need to send a resolute message to those who traffic unlawfully in dangerous drugs.

Sentence

10.In the result, the judge sentenced the applicant to 8½ years’ imprisonment.

DISCUSSION

11.There is no material before the court which requires consideration of the issue of whether or not the applicant’s plea of guilty might be impugned so that it might be determined that the plea of guilty was a nullity.

12.We are satisfied that the starting point taken for sentence of 12½ years’ imprisonment, enhanced by six months’ imprisonment to reflect the international element, was entirely appropriate.  In affording the applicant a discount of one third from that taken for the starting point for sentence, the judge gave the applicant the maximum discount for a timely plea of guilty.  He was generous in affording her a further discount of two months’ imprisonment to reflect her good character and his acceptance that she was a simple person who had been used by others.

13.The applicant is a Mainlander by origin who was married, at the time of her arrest, to a Hong Kong resident.  They married in 2005.  In 2006, she gave birth to a daughter.  In 2010, mother and daughter came to live in Hong Kong.  However, subsequently for financial reasons they returned to live in the Mainland.  Albeit that the applicant’s family circumstances were tragic, in that the death of her husband shortly after her arrest had left her daughter without parental care, the judge was correct in not having regard to those family circumstances as meriting a reduction of sentence.  This was a serious offence in the context of which such factors are irrelevant.

CONCLUSION

14.In the result, we are satisfied that there is no merit in the grounds of appeal against sentence advanced by the applicant.  Accordingly, the application for leave to appeal against sentence is dismissed.

Miss Peggy Leung, SPP of the Department of Justice, for the respondent

The applicant appeared in person