HKSAR v. Law Hoi Yan, Wing

CACC 426/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 426 OF 2013

(ON APPEAL FROM HCCC NO. 393 OF 2013)

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Before: Hon Lunn VP and McWalters JA in Court

Date of Hearing: 27 August 2014

Date of Judgment: 27 August 2014

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the Court):

Introduction

1.The applicant pleaded guilty to a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The charge particularised the offence as occurring on 28 March 2013 at the Departure Hall of Hong Kong International Airport and the drug in which the applicant trafficked was 1.45 kilogrammes of a crystalline solid containing 1.43 kilogrammes of methamphetamine hydrochloride, commonly known as ICE.

2.The applicant had pleaded guilty to this charge in the Magistracy and was committed for sentence to the High Court. On 25 November 2013 she appeared before Deputy High Court Judge Geiser (“the judge”) and was sentenced on the same day to 14 years and 8 months’ imprisonment.

3.The applicant applied for leave to appeal against her sentence.

The Background to the Offence

4.The applicant, together with another woman, D1, who was separately charged on the same Charges Committed for Sentence as the applicant, were intercepted near Gate No. 2 within the Departure Lounge of Hong Kong International Airport.  When searched by the police she and her associate were each found to have 8 packets of suspected dangerous drugs strapped to their thighs.  They were arrested for trafficking in a dangerous drug and under caution the applicant admitted that she and D1 had been paid $80,000 by somebody to join a travel tour to deliver the dangerous drugs to Australia. The police found in the applicant’s carry bag a receipt from Miramar Travel showing that she and D1 had signed up for a 5 day tour to Sydney departing on 28 March.  They also found within her bag cash of $5,500 and RMB283.

5.In a subsequent video record of interview the applicant admitted under caution that her friend “Ah Kau” had asked her to help him recruit drug couriers but she could not find anyone. He then asked her to do it and she agreed.  A person by the name of “Ah Roy” (“Roy”) arranged a visa for her and booked a group tour for her.  She said she expected to be paid $80,000 for transporting the drugs to Australia but to date had only been paid $5,000.

6.She said she first met the man Roy at Miramar travel agency when he booked and paid for the tour.  At that time she also met D1.  She said she thinks it was Roy who asked her friend Ah Kau for help in recruiting drug couriers.

7.At about 7 a.m. on 28 March she and D1 went to the Mainland via Lo Wu from where they took a taxi to a hotel where a room had been booked under D1’s name.  Later, someone came to this hotel room and strapped the drugs to their thighs.  After the drugs were attached to them, she and D1 returned to Hong Kong by car where they travelled to the Hong Kong Airport.

8.Travel movement records confirmed that the applicant and D1 had departed from Lo Wu at 8.40 a.m. on 28 March and returned to Hong Kong at 3.03 p.m. the same day.

9.The drugs strapped to the thighs of the applicant were found to be a total of 1.45 kilogrammes of a crystalline solid containing 1.43 kilogrammes of methamphetamine hydrochloride.  The market retail value of these drugs was $1,152,750.

The Sentencing Hearing

10.At her sentencing hearing the applicant’s counsel informed the judge of the applicant’s personal background which included that she had three children, aged 4, 7 and 8 and that she had committed the current offence because of her financial difficulties in providing for the children. Her cohabitant and the father of the children had deserted her and she was unemployed and was on CSSA.  She did have some assistance in looking after the children from her aged mother but she was not well and also was unemployed and on CSSA.  The cohabitant did return but was unable to contribute meaningfully to the support of the family.

11.The applicant borrowed monies in order to provide for her family but was unable to repay them.  Consequently, she finally gave in to the persistent persuasion of Roy and agreed to traffic in dangerous drugs.

12.The applicant did have one previous conviction but it was some 14 years ago and of a completely different nature.

13.Apart from her plea of guilty the applicant’s counsel relied heavily upon the applicant’s cooperation with the police in providing them with all the information she knew on Roy who made the arrangements for the trip to Australia.  However, we are now told that this information did not enable the police to identify and locate Roy.

14.Counsel for the applicant also relied upon the decision of this Court in CACC 388/2011 to urge upon the judge that he should adopt a starting point of 21 years for this quantity of ICE.

The Reasons for Sentence

15.After referring to the personal matters relating to the applicant that counsel had placed before him, the judge noted that the only real mitigation for the applicant was her plea of guilty.

16.The judge reminded himself of the guidelines for trafficking in ICE as found in AG v Ching Kwok Hung [1991] 2 HKLR 125 and that, as laid down by the Court of Appeal in this case, the sentencing range for trafficking in over 600 grammes was 18 years and upwards.  He said that he would adopt a starting point of 20 years’ imprisonment for the applicant.  However, the judge noted that the applicant’s conduct involved international trafficking which was an aggravating feature of the offence.  In this case the international trafficking took two forms; first the conduct of the applicant and her associate in collecting the drugs from the Mainland and importing them into Hong Kong and secondly in intending to export them from Hong Kong to Australia.  This caused the judge to enhance his starting point by 2 years to take account of this international element.  His final starting point then became 22 years’ imprisonment which he discounted by one-third for the applicant’s plea of guilty thus arriving at a final figure of 14 years and 8 months’ imprisonment.  This was the sentence that he imposed.

The Grounds of Appeal

17.The applicant is unrepresented but has written a letter to the court dated 29 July 2014 setting out her complaints in respect of her sentence.  In her letter she commences by informing us of the difficulties that she had endured in her life such as having to leave school after Form 3 so that she could obtain employment in order to relieve the family’s burden.  She married when she was 27 years old in 2005 and her first child, a son, was born that year.  She gave birth to daughters in 2006 and in 2010.  Her husband developed a mental illness and was admitted to the Psychiatric Ward of Kowloon Hospital for treatment.  After his discharge from hospital, he deserted the applicant and her children and left without a trace.  This forced the applicant to seek employment but in view of her limited education and her lack of recent employment, she was unable to find a job.  She borrowed money from friends and became indebted with no real ability to repay the loans.

18.One of her friends entreated her to introduce him to people who would be willing to become drug couriers.  She refused to assist him, telling him that she would not have anything to do with the illegal goods.  However, she says she reached the stage where she had no money, she was indebted to her friends and she was feeling under pressure.  In this predicament she thought she had no choice but to agree to become a drug courier for her friend.  She tells us that she is now deeply remorseful for what she has done.

19.She says that her elderly mother is now looking after her three children who are 8 years old, 7 years old and 4 years old.  Her elder son is suffering from hyperactive syndrome and dyslexia.  In view of her personal situation she asks the court to extend her leniency and reduce her sentence out of sympathy.

20.In her letter to us she formulates four specific grounds of appeal.  The first ground is that as she was intercepted prior to leaving Hong Kong the judge should not have enhanced her sentence by 2 years to take account of the international trafficking.

21.Grounds 2, 3 and 4 all relate to her personal circumstances and involve her in entreating the court to act mercifully towards her in view of those circumstances.

22.Ground 2 focuses on the elderly mother of 64 years of age who is physically weak and suffering from numerous illnesses.  The applicant asks us to have sympathy for her mother who is currently looking after her children and who will have an increasingly difficult time in doing so over the coming years until the applicant’s discharge from prison.

23.Ground 3 focuses upon the need for the children to have their mother around them and for her desire to be with them as they reach what she referred to as “the rebellious age”.  This ground focuses upon the need of the children for her to be present and of the possible consequences to them of being led astray like herself should she not be present for them.

24.Ground 4 focuses upon herself and says that she is deeply remorseful for the offence and asks for an opportunity to turn over a new leaf so that she can be with her children and look after them.

25.Before us today she tendered a letter from her mother which repeated the same points about the impact of the applicant’s incarceration on herself and the children whom she is looking after.  The applicant supplemented orally what was written in the letter of her mother and the points that she had made in her earlier letter to the court. She essentially seeks leniency asking the court to extend mercy to her.

Discussion

26.There is nothing in the applicant’s first ground of appeal.  True it is that she was intercepted before she could export the drugs to Australia.  However, that does not the detract from the fact that she was intent upon trafficking the drugs out of Hong Kong across international borders.  Furthermore, there is the added international dimension aspect to her drug trafficking in that she imported the drugs into Hong Kong in order to do so.  Far from the judge’s exercise of his sentencing discretion miscarrying, the judge was required by law to enhance the applicant’s sentence in the way that he did.

27.As to the other grounds of appeal there is, likewise, no merit in any of them.  They all seek the merciful intervention of the court because of the applicant’s personal circumstances.

28.This Court has repeatedly said over the years that the personal circumstances of an offender carry little weight when it comes to the offence of unlawfully trafficking in dangerous drugs.  As long ago as in the leading case of R v Lau Tat Ming [1990] 2 HKLR  370 this Court said at page 386 F-G:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight.”

29.More recently in HKSAR v Abdallah [2009] 2 HKLRD 437 this Court said at page  451, 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.”

30.It is not unusual, of course, for offenders to pray in aid the hardship caused to innocent third parties by the long period of their incarceration.  Inevitably, these innocent third parties are either elderly relatives or young children, or, as in the case of the present applicant, both.  But, offenders must recongise that the suffering that flows as a consequence of their actions to innocent persons is not caused by the sentences of imprisonment imposed by the court on the offender, but by the offender’s own actions in succumbing to the temptation of obtaining easy money through drug trafficking and which has led the offender to be before the court.  The courts cannot allow the impact on third parties to divert them from imposing an otherwise appropriate punishment upon the drug trafficker simply out of concern for the well-being of relatives affected by the drug trafficker’s incarceration.

Conclusion

31.For these reasons we dismiss the application for leave to appeal against sentence.

Ms Hermina Ng SPP, of the Department of Justice, for the respondent

The applicant appeared in person