HKSAR v. Olivier Frouke Elizabeth

CACC 214/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 214 OF 2012

(ON APPEAL FROM HCCC NO 42 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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

1.On 3 May 2012, the Applicant pleaded guilty before Deputy High Court Judge P Li (as he then was) to one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The drug in question consisted of 1,540 grammes of a powder which contained 1,090 grammes of cocaine.  She was sentenced to a term of imprisonment of 16 years and 3 months, against which sentence she sought leave to appeal.  At the hearing, we dismissed her application.  The following are our reasons for doing so.

2.The Applicant is a South African national, aged 42 years at the time of her conviction and sentencing.  She arrived in Hong Kong on 21 August 2011, having travelled here from Buenos Aires, Argentina via Doha, Qatar.  On arrival, she was intercepted by customs officers, and on being searched was found to have two packages of what were suspected to be dangerous drugs concealed in her shoes. She was subsequently sent to Queen Elizabeth Hospital, as internal concealment of further drugs was suspected.  Shortly after admission, she discharged a packet containing suspected drugs, and a further 37 packages containing suspected dangerous drugs were later removed during surgery.  On later examination, the contents of the packages were found to contain the amounts of powder and cocaine referred to in paragraph 1 above.

3.Before the Judge, it was submitted on behalf of the Applicant that she had a clear record in Hong Kong, and that she had agreed to act as a courier carrying dangerous drugs because of financial difficulties, having been promised a payment of 15,000 South African Rand as a reward.  The Judge’s attention was drawn to her family circumstances, which included the fact that she had an elder sister who was ill and unable to support herself, and an elderly mother who now had to look after the sister.  She expressed deep remorse, and asked to be treated leniently so that she could return to South Africa to take care of her sister and mother.

4.Applying the sentencing tariff laid down in HKSAR v Abdallah [2009] 2 HKLRD 437, the Judge adopted a starting point of 22 years 5 months, to which he added two years to reflect the aggravating factor of the international element involved in this case.  Having held that there were no factors justifying leniency, the Judge discounted the sentence of 24 years 5 months thus arrived at by one-third for the Applicant’s plea of guilty, arriving at the sentence imposed of 16 years 3 months.

5.For the hearing, the Applicant, who was unrepresented, put forward a written submission which she had drafted herself.  In it, she acknowledged that the sentence passed on her was “quite in order according to the guidelines and Hong Kong law”. However, she asked this court to take into account the following matters with a view to reducing it:-

(1)   Her family circumstances, namely, the need for her to return to South Africa to look after her elderly mother, and her ill elder sister, as well as other siblings who suffer from ill health or mental disability, and are thus unable to support themselves.

(2)   The fact of her family’s straitened financial position, which led her to commit the offence to obtain money (which she was never paid, as she did not complete her journey) to support them.

(3)   The fact that this was her first offence, whether in Hong Kong or elsewhere.

(4)   Her own poor health, as she suffers from emphysema, hypertension, high cholesterol and heart disease, and has had to undergo two operations.

6.The Applicant was right to accept that the sentence she received was in accordance with the sentencing guidelines applicable in Hong Kong.  The total quantity of the narcotic found on the Applicant was 1,090 grams.  This places her in the 600 – 1,200 grammes band as laid down by the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370 and Abdallah (supra).  Although both those cases concerned trafficking in heroin, the same guidelines apply to trafficking in cocaine – see A-G v Pedro Nel Rojas [1994] 1 HKC 342. This band attracts a sentence of between 20 and 23 years’ imprisonment. The amount of narcotic involved here is closer to the top end of this band, and the starting point of 22 years and 5 months adopted by the Judge was entirely appropriate.  The addition of a further 2 years imprisonment to reflect the aggravating factor of the international dimension to the trafficking in this case was also in accordance with the guidelines laid down in the Abdallah case (see paragraphs 42 and 43 of the judgment). This gave a total of 24 years and 5 months, which, as noted, was reduced by one-third to reflect the Applicant’s plea of guilty, resulting in the sentence passed of 16 years and 3 months.

7.The question therefore is whether any of the matters raised by the Applicant amount to mitigating factors which would justify a further reduction of her sentence.  We are satisfied that they do not.

8.So far as the Applicant’s family circumstances are concerned, both in terms of the health and age of her family members, and in terms of their difficult financial circumstances, it is well established that these are not matters which will provide mitigation for drug trafficking offences, because of the seriousness of the offence and the effects that it has on others and society as a whole.  The Court of Appeal has repeatedly stressed that factors that might provide mitigation and a discount for other, less serious offences, will have little weight in cases of drug trafficking – see e.g., Lau Tak Ming (supra, at p 386 of the judgment); Abdallah (supra, at paragraph 32 of the judgment); HKSAR v Alpire Cabral Dayanna Esmeralda (unreported, CACC 11/2004, 7 May 2004, at paragraph 7 of the judgment).  The Applicant’s family circumstances therefore do not warrant any reduction of the sentence imposed on her.

9.As for the Applicant’s state of health, this was not a matter that was raised in mitigation before the Judge.  Although the Applicant has not put forward any proof of the medical conditions from which she says she suffered, Mr Leung for the Respondent has, very fairly, put before us a medical report which supports what she has said.  We would therefore accept that she does suffer from a variety of health problems, including hyptertension, a peptic ulcer and emphysema.  However, just as family circumstances will rarely be a mitigating factor, an applicant’s ill-health is not generally a matter that can justify a reduction of sentence.  This has recently been reiterated in HKSAR v Lkhaijav Bayanmunkh (unreported, CACC 320/2011, 2 April 2012), where the Court of Appeal pointed out the policy considerations behind this approach (paragraphs 10 and 11 of the judgment), and repeated that drug trafficking is a crime in relation to which the personal circumstances of the offender are not given the same weight that they might be in other cases (paragraph 14 of the judgment).  Further, it would appear that in this case, the two operations that the Applicant says she has undergone would appear to have been necessitated by her ingestion of the packages of drugs in order to conceal them within her body, providing a further reason why the court should not be overly sympathetic in relation to this point.  Insofar as the Applicant may be in need of medical care, there is no reason to suppose that she will not be provided by the authorities with such treatment as is necessary or appropriate.

10.Finally, the fact that the Applicant is not a previous offender provides no ground for a reduction in sentence in respect of the offence of which she has been convicted.

11.The application for leave to appeal against sentence was therefore dismissed.

Mr David Leung, SADPP of Department of Justice, for the Respondent

The Applicant appeared in person