HKSAR v. Nkosi Xolile Rose

CACC 331/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 331 OF 2013

(ON APPEAL FROM HCCC NO. 172 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Chu JA giving the Reasons for Judgment of the Court of Appeal:

1.On 17 August 2012, the applicant pleaded guilty before Deputy High Court Judge McMahon to one count of trafficking in a dangerous drug, namely, 3.3 kgof methamphetamine hydrochloride, commonly known as “ICE”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. She was convicted and sentenced to imprisonment of 17 years and 4 months.

2.On 12 September 2013, the applicant applied for leave to appeal against her sentence out of time.

3.At the hearing, after hearing submissions, we refused the application.  Our reasons appear below.

The facts

4.The facts admitted by the applicant show that on 1 December 2011, the applicant, who is a South African national, arrived in Hong Kong on a flight from Nairobi, Kenya on transit to Thailand.  Customs officers carried out a search and x-ray of her suitcase and found the drug in question, which was contained in six packets, concealed in the lining of the suitcase.  On being arrested and cautioned, the applicant stated that someone asked her to bring the suitcase from Benin to Samui and 17,000 rand would be deposited into her bank account upon the completion of the task.  The street value of the drug was approximately HK$2,669,850.

The sentence

5.The applicant was 24 years old at the time of sentencing. She had a clear record in Hong Kong.  In mitigation, it was said that she came from an impoverished background.  Her father passed away when she was 12 years old and her mother, who has been supporting the family, has a heart condition.  It was also submitted that her role was simply that of a “mule”.  Trial counsel for the applicant also referred the Judge to a number of cases on sentencing on trafficking in large quantities of ICE. 

6.In passing sentence, the Judge observed that, unlike trafficking in heroin and cocaine, there were no sentencing guidelines for trafficking in large quantities of ICE, and that there had been a noticeable variation in the sentences for trafficking in large quantity of ICE.  He took into account the cases cited by defence counsel and adopted a starting point of 24 years, then enhanced by 2 years to reflect the international element in the case.  He considered there was no mitigating factor, other than the plea of guilty.  Allowing the applicant the full benefit of her guilty plea, he reduced the sentence to 17 years 4 months’ imprisonment.

Delay

7.The applicant’s present application is out of time by almost one year, which is a substantial delay.  She explained in her affirmation that the delay was because for a long period of time, she was shocked and disturbed and was confused as to what to do next.

The ground of appeal

8.The sole ground of appeal is that the sentence was wrong in principle and manifestly excessive. It was said that the starting point of 24 years’ imprisonment and the enhancement of 2 years were made by reference to sentences that were passed after consideration of the sentencing guidelines for trafficking in very large quantities (over 600 grammes) of heroin or cocaine in HKSAR v. Abdallah[2009] 1 HKLRD 437, which until this court’s decision in HKSAR v. Tam Yi Chun [2014] 3 HKLRD 691 were inapplicable to trafficking in large quantities of ICE.   

Discussion

9.In HKSAR v. Abdallah, this court laid down the sentencing guidelines for trafficking in very large quantities (over 600 grammes) of heroin or cocaine (“Abdallah guidelines”) as follows:

600 to 1,200 grammes: 20 to 23 years’ imprisonment

1,200 to 4,000 grammes: 23 to 26 years’ imprisonment

4,000 to 15,000 grammes:  26 to 30 years’ imprisonment

Over 15,000 grammes: at the discretion of the sentencing judge

10.Subsequently, in HKSAR v. Tam Yi Chun, this court, having regard to the evidence received, held that there is now no acceptable rationale for a distinction in sentencing for trafficking in large quantities of ICE on the one hand and large quantities of heroin on the other. Accordingly, it held that for trafficking in over 600 grammes of ICE, the same tariffs as prescribed in HKSAR v. Abdallah for those quantities of heroin shall apply.

11.The sentencing of the applicant took place before the decision in Tam Yi Chun, when there were no tariffs for trafficking in over 600 grammes of ICE.  All that was prescribed in Attorney General v. Ching Kwok Hung [1991] 2 HKLR 125 is that the sentence for trafficking in over 600 grammes of ICE should be 18 years’ imprisonment or above.

12.The thrust of the submission of Ms Chow, who appeared for the applicant, is that notwithstanding that the Abdallah guidelines had no application to trafficking in large quantities of ICE, most of the cases that the Judge had considered or referred to had either applied, or had in mind, the Abdallah guidelines.  Accordingly, the starting point adopted by the Judge and the enhancement to reflect the international element was manifestly excessive and wrong in principle.  It was also submitted that the applicant should be given the benefit of the uncertainty in the sentencing for large quantity of ICE, following the decision in Tam Yi Chun. 

13.I deal firstly with the argument that the Judge had been incorrectly influenced by the authorities that had applied or in mind the Abdallahguidelines[1]. Ms Chow had in her submission summarized the cases cited to the Judge. Out of them, 12 were decided after HKSAR v. Abdallah, namely, HKSAR v. Chan Tin Yu (unreported) HCCC 6/2009; HKSAR v. Leung Kwok Ho (unreported) HCCC 124/2010; HKSAR v. Bono Florencio Delfindo (unreported) HCCC 388/2009; HKSAR v. Stojanovic Milka (unreported) CACC 110/2010; HKSAR v. Sugasawa Mototake (unreported) HCCC 179/2010; HKSAR v. Lule Paul (unreported) HCCC 143/2011; HKSAR v. Jitsatta Chosita (unreported) HCCC 70/2011; HKSAR v. Ingalla Analyn Longalong (unreported) HCCC 443/2011; HKSAR v. Conde Mamady (unreported) HCCC 220/2011; HKSAR v. Sae Heng Niramon (unreported) HCCC 124/4012; HKSAR v. Nguyen Anh Nga (unreported) HCCC 91/2011 and HKSAR v. Ngie Hon Miu (unreported) HCCC 400/2011. Ms Chow submitted that except three of the cases[2], the sentences passed in the other eight cases fall within the range of sentences set out in the Abdallahguidelines, which is indicative of the courts having followed or being influenced by the Abdallah guidelines. 

14.I am unable to accept this submission.  Firstly, it is evident from the exchanges between the Judge and defence counsel in the course of submissions that the Judge was not minded to follow the tariffs in Abdallah as he considered this was not feasible: Appeal bundle 16I-K. 

15.Secondly, following the sentencing guidelines in AG v. Ching Kwok Hung, trafficking in over 600 grammes of ICE would invariably attract a sentence of 18 years and above.  In the premises, the mere fact that the sentence passed on an offence of trafficking in over 600 grammes of ICE falls within the range of sentence under the Abdallah guidelines cannot justify an inference, still less the conclusion, that the sentencing judge had taken into account or was influenced by the Abdallah guidelines.

16.Thirdly, upon an examination of the cases cited to and considered by the Judge, it is clear that the courts when passing sentencing did not apply nor had in mind the Abdallahguidelines.  In the nine cases in which the sentences passed were said to fall within the range in the Abdallah guidelines, none had made reference to the Abdallah guidelines.  In some of them, the decision of Abdallah was referred to but only for the proposition that an international element was an aggravating factor that called for an enhancement in sentence, and where the quantity of drugs involved was above 1 kg, the enhancement would not be less than two years. It should be pointed out that although Abdallah is a case on trafficking in heroin, this court’s discussions on enhancement to reflect aggravating factors such as the international element is not intended to, and should not be understood as, confining to heroin cases. 

17.Further, in four of these nine cases[3], the court expressly referred to AG v. Ching Kwok Hung when deciding on the starting point to be adopted.  Moreover, the starting point adopted in four of these nine cases[4] was lower than what would have been the starting point had the Abdallah guidelines been applied, an indication that the sentencing judge did not adopt or have in mind the Abdallah guidelines.  

18.Accordingly, in considering these authorities, the Judge could not have been incorrectly influenced by the Abdallah guidelines.  There was, in short, no error in principle. 

19.I next turn to consider whether the starting point and enhancement adopted by the Judge is manifestly excessive.  On the guidelines in AG v. Ching Kwok Hung, the starting point for trafficking in over 600 grammes of ICE is 18 years upward.  The quantity of ICE in this case is 3.3 kg.  The 24 years starting point adopted by the Judge and the enhancement of 2 years to reflect the international element are neither out of range nor excessive, having regard to the sentences in the cases that had been cited to him.  For instance, in HKSAR v. Stojanovic Milka, this court substituted a starting point of 20 years, enhanced to 22 years for international element, for an offence of trafficking in 1,484.01 grammes of ICE, which is less than half of the quantity in this case.  

20.Ms Chow referred us to the judgment of this court in HKSAR v. Hendrik Wijaya Oei (unreported) CACC 93/2008.  In that case, the applicant, who was an Indonesian national on transit from Shenzhen to Jakarta, was found to have 3.93 kg of ICE in his luggage.  He was convicted after trial and sentenced to 24 years’ imprisonment. In upholding the sentence, this court observed that the sentence was not manifestly excessive having regard to the quantity of ICE involved, which was over 6½ times of 600 grammes, which would have attracted an 18-year sentence under the guidelines in AG v. Ching Kwok Hung, and that there was an international element. It would appear from the judgment that the trial judge had not made an enhancement to the sentence to reflect the international element, probably because the sentencing took place on 1 February 2008[5], before the decision in Abdallah.  We do not think this case assists the applicant’s submission that the Judge’s starting point was manifestly excessive.

21.In our view, it is relevant to note was said by Leong JA (as he then was) in HKSAR v. Vhemy Axel-Supardi (unreported) CACC12/2000, a case also decided before Abdallah and in which a starting point of 24 years for trafficking in 2,087.25 grammes of ICE was upheld (at §7):

“The guidelines in AG v CHING Kwok-hung set down that the sentence for trafficking in over 600 grammes of "Ice" should range from 18 years upwards. The starting point of around 24 years for more than three times of the quantity of 600 grammes is entirely consistent with the guidelines. The fact that in other cases a lower starting point than 24 years was adopted for a larger quantity of "Ice" or where a smaller quantity attracted a higher starting point than 24 years is no ground for interfering with a sentence which is otherwise not wrong in principle and not manifestly excessive.”

22.Given that the Judge’s sentence is neither wrong in principle nor manifestly excessive, there is no room for the argument that the applicant should be given the benefit of the uncertainty in the sentences for trafficking in large quantities of ICE.  It is therefore not necessary to deal with the submission of Ms Parwani for the respondent that the decision in Tam Yi Chun has no retrospective effect, a proposition that Ms Chow did not take issue with.  We need only say that the circumstances in Tam Yi Chun were rather unique in that the sentencing judge had erroneously applied the Abdallah guidelines.   

23.As we are of the view that there are no merits in the applicant’s intended appeal against sentence, we refuse to extend the time for applying for leave to appeal against sentence.  The application is accordingly dismissed.

Ms Audrey Parwani, Senior Court Prosecutor (Ag)of the Department of Justice, for the respondent

Ms Monica Chow, instructed by CT Chan & Co, assigned by the Director of Legal Aid for the applicant