HKSAR v. Sae-heng Niramon

CACC 423/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 423 OF 2012

(ON APPEAL FROM HCCC NO. 124 OF 2012)

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BETWEEN

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.The applicant seeks leave to appeal against the sentence of 16 years’ imprisonment imposed on her by A. Pang J on 8 June 2012, following her committal to the Court of First Instance for sentence on 20 April 2012, on her plea of guilty in the Magistrates’ Court, to an offence of trafficking unlawfully in a dangerous drug on 17 October 2011, namely 2.19 kg of methamphetamine hydrochloride (“ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The Facts

2.On 17 October 2011, following her arrival at Hong Kong International Airport from South Africa, the applicant was intercepted for Customs clearance as she was in the course of proceeding to take a transit flight to Cambodia.  Two slabs containing 2.19 kilogrammes of methamphetamine hydrochloride were found hidden inside a concealed compartment of the rucksack carried by the applicant.  Having been arrested and cautioned the applicant admitted that she knew the two slabs were dangerous drugs, which she said that she had been given in South Africa and was to transport to Cambodia for a reward of 100,000 Thai Baht.

3.The retail value of the dangerous drugs was HK$2,105,600.

Reasons for sentence

Starting point

4.In the light of the quantity of the drug involved, the judge stipulated an initial starting point for sentence of 22 years’ imprisonment.

Enhanced sentence

5.Having regard to the fact that the applicant had imported the dangerous drugs from South Africa into Hong Kong en route to Cambodia, the judge enhanced the starting point by 2 years’ imprisonment to reflect the international element in the commission of the offence.  Accordingly, the overall starting point taken for sentence was 24 years’ imprisonment.

Discount

6.Affording the applicant a discount, from the overall starting point for sentence, of one-third for her plea of guilty, the judge sentenced the applicant to 16 years’ imprisonment.

Grounds of appeal against sentence

7.Mr John Marray, on behalf of the applicant, submitted that, in light of assistance afforded to the Thai law enforcement authorities since sentence was passed on the applicant, this Court ought to afford the applicant a further discount in sentence.

Reasons for the application being made out of time

8.In an affirmation attached to Form XI and filed with the court on 19 October 2012 the applicant sought leave for an extension of time in which to give notice of an application to leave to appeal against sentence.  By way of such explanation as she advanced she said that she did not understand English well enough and asked for a chance to appeal against her sentence.  In his submissions, Mr Merry pointed out the undisputed fact that although the applicant had begun to assist the Thai authorities prior to being sentenced the real substance of those efforts bore fruit only some months after sentence had been imposed.

Notice of motion

9.By a Notice of Motion filed with the court on 25 November 2014 the applicant sought to adduce fresh evidence in respect of the assistance to the authorities, pursuant to section 83V of the Criminal Procedure Ordinance, 221.

The respondent’s submissions

10.Mr Edmond Lee, for the respondent, did not object to the application for extension of time for leave to give notice of the applicant’s intention to seek leave to appeal against sentence or the application to adduce fresh evidence.  We granted both applications.  He acknowledged that the applicant had given the Thai authorities information which had been fruitful in the detection of another involved in criminal activities outside Hong Kong.  In those circumstances, he submitted that it was appropriate for this Court to afford the applicant an additional discount in sentence.  In support of that submission he drew the court’s attention to its judgment in HKSAR v Liang Bing Zhao [1], in which this Court determined that the discount of sentence afforded by the judge at trial to a defendant, who had not only pleaded guilty but had provided information to the authorities in Hong Kong, with the result that his accomplices in piracy and robbery of persons on board a jetfoil were arrested in Macau and in the Mainland, was inadequate.  In consequence, this Court afforded the applicant a greater discount sentence of on his appeal.

11.Mr Lee submitted that the appropriate overall discount to be afforded to the applicant, including the one-third discount for her plea of guilty, was in the range of 40% of that taken as the starting point.

A consideration of the submissions

12.The effect of the evidence adduced at the hearing by the applicant is to substantiate the claim that she provided information which enabled the Thai authorities to arrest and prosecute successfully a person for possession of dangerous drugs, which resulted in that person being sentenced to 5 years and 9 months’ imprisonment.

Further discount of sentence

13.Clearly, the applicant is entitled to a further discount in her sentence to reflect her assistance to the law enforcement authorities in Thailand.

14.In the judgment of Li CJ in HKSAR v Z [2] the practice of this Court in respect of allowing a defendant an additional discount from his sentence for assistance given to the authorities after sentence had been imposed upon him was reviewed :

“ The Court of Appeal is well placed to consider the range of reductions of sentence for co-operation with the authorities. It has used various percentages of discount for different degrees of assistance. It has applied a usual discount of 40% (including the one third reduction for a guilty plea) for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at 340. (Compare its earlier decision in HKSAR v Ng Shek-Yu (CACC 178/2000 unreported, 1 March 2001) referring to a discount of between 40% to 45% as usually appropriate in such circumstances.) Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one third reduction for pleading guilty).”

Conclusion

15.We are satisfied that the applicant is entitled to an additional discount so that the overall discount from the starting point of 24 years’ imprisonment is about 40%.  Accordingly, we quash the sentence of 16 years’ imprisonment and in its place impose a sentence of 14 years and 4 months’ imprisonment.

Mr Edmond Lee, SADPP, of the Department of Justice, for the respondent

Mr John Marray, instructed by Bernard Wong & Co, assigned by Director of Legal Aid, for the applicant

[1] HKSAR v Liang Bing Zhao [1997] 3 HKC 20.

[2] HKSAR v Z [2007] 1 HKLRD 977; at page 194 D-G, paragraph 23.