HKSAR v. Marlese Mbachu

CACC 190/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 190 OF 2012

(ON APPEAL FROM HCCC No. 58 of 2012)

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BETWEEN

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Before: Hon Yuen JA and Lunn JA in Court

Date of Hearing: 10 October 2012

Date of Judgment: 10 October 2012

Date of Reasons for Judgment: 15 October 2012

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REASONSFOR JUDGMENT

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

1.The applicant sought leave to appeal against the total sentence of 11 years’ imprisonment imposed upon her on 3 May 2012 by Bokhary J following her earlier pleas of guilty in the Magistracy to a charge of unlawful possession of 2.12 grammes of cannabis in herbal form (charge 1) and unlawful trafficking in 0.39 kg of heroin hydrochloride and 0.13 kg of monoacetylmorphine hydrochloride (charge 2). We allowed the application to the extent set out in the judgment and said that we would give our reasons in due course. That we do now.

The Facts

2.Both offences were committed on 15 August 2011 at the Customs Arrival Hall of Hong Kong International Airport where, on interception by a customs officer, the applicant produced a package of cannabis, the subject of charge 1, and informed the officer that she had dangerous drugs inside her body.  Subsequently, at Princess Margaret Hospital she discharged 79 pellets containing heroin, the subject of charge 2.  The applicant, a South African National, had arrived in Hong Kong on a flight from Bangladesh.

Reasons for sentence

3.There was no dispute that the applicant had no previous criminal convictions.  In her reasons for sentence, the judge stipulated a starting point of one and a half months’ imprisonment, for the offence the subject of charge 1, and 20 years’ imprisonment, being a starting point of 19 years’ imprisonment enhanced by one year, for the offence the subject of charge 2.

Discount

4.Having regard to her pleas of guilty, and other relevant matters which the judge said justified a lenient view being taken of the facts, the judge discounted the starting points taken for sentence to 24 days’ imprisonment and 11 years’ imprisonment respectively.  She ordered those sentences to be served concurrently.  Accordingly, the total sentence imposed on the applicant was 11 years’ imprisonment.

Grounds of appeal against sentence

5.In her grounds of appeal against sentence the applicant complains that her barrister did not represent her as well as he should have done, in consequence of which she had received a higher sentence than ought to have been imposed.  In her affirmation, dated 21 June 2012, filed on the direction of the court the applicant particularised her complaints against her counsel: he had misinformed the court about her personal circumstances, in particular in not informing the court that the monies that she owed in South Africa were in respect of unpaid school fees for her daughter’s education, not merely borrowed monies that she had not repaid.  Further, the applicant contended that in respect of charge 2 the judge had erred in taking a starting point of 19 years’ imprisonment, which she enhanced by one year’s imprisonment, so that the resulting total was 20 years’ imprisonment.  That was too high given the quantity of dangerous drugs involved.

6.In further home-made submissions, dated 26 September 2012, the applicant sought the mercy of the court.  In support of that plea, the court has received letters from both her mother and her daughter.  The applicant apologised for having committed the offence.  She explained that the debts, incurred in respect of her daughter’s school fees, had resulted in legal proceedings being brought against her in court for monies due.  She provided supporting correspondence from lawyers in South Africa.  She contended that the court in South Africa had given her six months in which to pay those debts, failing which she would be imprisoned.  It was in those circumstances that she succumbed to the temptation of financial reward for unlawfully trafficking in dangerous drugs.

7.The applicant complained that whilst she has been detained in Hong Kong her health has deteriorated.  During her detention custody she has been a patient at the custodial ward at Queen Elizabeth Hospital and in the sick bay at Lo Wu Correctional Institution.  At her request the court has received medical reports relating to illnesses and treatment.  It is apparent from a medical report dated 8 October 2012 from the Medical Officer of Lo Wu Correctional Institution that the applicant has a history of asthma and that, whilst in custody, she has experienced episodes of asthmatic attacks.  Those attacks have resulted in treatment in her place of detention and also, on a number of occasions, at North District Hospital and Queen Elizabeth Hospital.  The applicant has been prescribed medication and has been the subject of regular follow-up appointments.  In the event, her general health was described by the Medical Officer as being “stable and satisfactory”, during her detention in that facility.

A consideration of the submissions

8.In the course of the proceedings in open court the judge indicated that, having regard to the guidelines for sentence set out in the Queen v Lau Tak Ming [1990] 2 HKLR 370, the 390 grammes of heroin hydrochloride and 130 grammes of monoacetylmorphine hydrochloride in total fell in the sentencing band of 400 to 600 grammes of heroin, for which the range of sentence was 15 to 20 years’ imprisonment.  Further, the judge stated that the fact that the dangerous drugs had been imported into Hong Kong called for an enhancement of the sentence.  As noted earlier, she stipulated as appropriate 19 years’ imprisonment enhanced by one year’s imprisonment as the appropriate starting point.

9.On an arithmetic approach to the guidelines, the sentence of 19 years’ imprisonment was high.  On that approach a sentence of 18 years’ imprisonment was appropriate.  Of course, as is made clear in Lau Tak Ming (page 386 E-G), in determining the appropriate sentence “within the suggested bands” in a particular case a sentencing judge is entitled to have regard to a variety of factors.  Here, the applicant was of previous good character.  One of a variety of factors identified in Lau Tak Ming to which a judge may have regard was the defendant’s “... previous history of narcotics offences and matters of mitigation”.  Certainly, in the applicant’s case there was no aggravating factor of previous convictions in respect of dangerous drugs.  The aggravating factor of the importation of the dangerous drugs into Hong Kong was reflected separately in the enhancement of sentence of one year’s imprisonment.  That was an appropriate enhancement.  However, in our judgment the sentence of 19 years’ imprisonment, identified in the process of arriving at the total starting point for sentence, was too high.  It ought to have been 18 years’ imprisonment. Accordingly the appropriate starting point to be taken for sentence was 19 years’ imprisonment.

10.It has long been recognised that the seriousness of unlawful drug trafficking “may result in mitigating factors which, for less serious offences, could lead to a discount having little weight” (see Lau Tak Ming at page 386).  Of that issue, in the judgment of this court in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 Stuart-Moore VP said (page 210 H-I, paragraph 32):

“ As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally - dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

11.It follows, given the seriousness of the offence, that the obvious family hardships flowing from the applicant’s incarceration, are not relevant to the imposition of the appropriate sentence on the applicant.

12.It is trite law that an otherwise appropriate sentence is not to be reduced, save in wholly exceptional circumstances, for the medical condition of a defendant.  In this case, as is apparent from the medical reports received by the court, the applicant is receiving appropriate treatment for her asthma.  There is no reason to think that she will not continue to receive appropriate treatment for whatever maladies she might develop whilst in custody.

Discount

13.It is clear that in imposing a sentence of 11 years’ imprisonment in respect of charge 2, the judge was discounting the sentence by 45% from the starting point of 20 years’ imprisonment.  That was a generous discount.  Nevertheless, in the particular circumstances of this case it was within the range of her discretion.  It is clear from the information available to the court that the applicant’s counsel was striving for the best possible result for the applicant.  Her criticisms of him are unfounded.  Broadly speaking, we applied that discount to what we have identified as the appropriate starting point for sentence, namely 19 years’ imprisonment.

Conclusion

14.In the result, we allowed the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, we set aside the sentence of 11 years’ imprisonment imposed in respect of count 2 and in its place imposed a sentence of 10 years and 4 months’ imprisonment.  We make no other orders in respect of the sentences imposed by the judge.

15.It is with regret that we note that the applicant’s application for legal aid to assist her in the application for leave to appeal against sentence was refused “on the merits”.

Mr. Eddie SEAN, SADPP, of the Department of Justice, for the respondent

The applicant appeared in person