HKSAR v. MOTHOSOLA MALEFETSANE EDY

CACC 50/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 50 OF 2014

(ON APPEAL FROM HCCC NO. 219/2013)

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BETWEEN

HKSAR Respondent
and
MOTHOSOLA MALEFETSANE EDY Applicant

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Before: Hon Lunn JA and McWalters J in Court

Date of Hearing : 13 June 2014
Date of Judgment : 13 June 2014

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J U D G M E N T

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

1. The applicant, a national of South Africa, seeks leave to appeal against the sentence of 9 years and 4 months’ imprisonment imposedon him on 23 January 2014 by E. Toh J following his plea of guilty to a count of unlawfully trafficking on 11 December 2012 at HongKong International Airport in dangerous drugs, namely 220 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

THE FACTS

2. On his arrival on 11 December 2012 at Hong Kong International Airport on a flight from South Africa, via Abu Dhabi and Malaysia,the applicant was intercepted by Customs officers in the Customs Arrival Hall. A subsequent medical examination at Queen ElizabethHospital revealed the presence of foreign objects in his body. In the following days the applicant excreted 59 pellets, which werefound to contain the dangerous drugs the subject of the count on the indictment.

3. Having been arrested and cautioned the applicant admitted that he had swallowed the 59 pellets of dangerous drugs for delivery tothe Mainland for a reward of US$3,000. Arrangements had been made in Malaysia for him to meet a person he did not know at the CityGarden Hotel in Hong Kong. He was told that person would take him to the Mainland the following day.

Reasons for Sentence

4. In sentencing, the judge noted that the applicant was a 31 year old married man with two children, who had no criminal record inHong Kong.

Starting point

5. The judge said that, having regard to the guidelines articulated in the judgment of this Court in R v Lau Tak Ming and Others [1], which provided for sentences in the range of 12 to 15 years’ imprisonment for unlawful trafficking in amounts of between 200 and400 grammes of heroin, she adopted a starting point of 12 years’ imprisonment.

Enhancement of sentence

6. For what she determined to be the aggravating factors the judge stated that she increased the starting point taken for sentence bytwo years’ imprisonment. Of her approach, she explained: [2]

“ The aggravating feature in this case is the fact that these drugs were imported into Hong Kong and bound for export into mainlandChina. The international element in this case is an aggravating factor and I will add 2 years for that. I am aware that the judgehas a discretion of adding between 1 to 2 years for the international element.

In this case, as the drugs were bound for China and Hong Kong was used as a transit centre, it makes the aggravating factor more serious.”

Discount

7. Having said that she afforded the applicant a discount of one third, from the resulting sentence of 14 years’ imprisonment, toreflect his plea of guilty, the judge imposed a sentence of 9 years and 4 months’ imprisonment on the applicant.

GROUNDS OF APPEAL AGAINST SENTENCE

8. In the grounds of appeal against sentence advanced on behalf of the applicant, Mr Jeffery Fenton submitted that the judge had erredin determining to enhance the starting point taken for sentence by 2 years’ imprisonment to reflect the aggravating factors inthe commission of the offence. First, he contended that the enhancement was manifestly excessive having regard to the guidelinesarticulated in the judgment of this Court in HKSAR v Abdallah [3] [2009] 2 HKLRD 437. There, it was suggested that various factors of aggravation in the commission of the offence, including an “international element”would result in an enhancement of sentence of not less than two years’ imprisonment for unlawfully trafficking in amounts above1 kg of heroin.[4] Secondly, it was submitted that the judge erred in attaching disproportionate significance to the applicant’s admission that heintended to take the dangerous drugs into the Mainland. In fact, he had been intercepted, so that he had not done so. Finally,the judge had erred in stating that her discretion to enhance sentence for the aggravating factors she had identified was one of“adding between 1 and 2 years for the international element”. Having regard to the relatively small amount of heroin in whichthe applicant unlawfully trafficked, the discretion was not so limited.

A CONSIDERATION OF THE SUBMISSIONS

Aggravating factors: the ‘international element’

9. There is no issue that the fact that unlawful trafficking in dangerous drugs involved a defendant in its import into or export fromHong Kong is an aggravating factor in the commission of the offence. In the judgment of this Court in Abdallah, Stuart-Moore VP said:[5]

“It has long been accepted that the international element in trafficking, whether by importation or by exportation, is to be regardedas a factor in material aggravation of the offence for sentencing purposes, whereas “local” offences, confined to traffickingin Hong Kong, will usually result in lower starting points for about the same quantity of heroin or cocaine.”

10. No issue is taken by Mr Fenton of the aggravating factor of the applicant’s importation of the dangerous drugs into Hong Kong. The applicant was in the process of entering Hong Kong. Issue is taken as to the significance the judge appears to have attachedto the applicant’s statement that he intended to travel to the Mainland to deliver the dangerous drugs. That remained at mostan intention. The arrangement by which that was to be achieved, which he described in an interview, was very sketchy at best. Inthe hearing we were informed that the applicant had a valid visa in his passport which permitted his entry into the Mainland. Tothe extent that dangerous drugs imported into Hong Kong are exported out of Hong Kong immediately the damage and danger to Hong Kongis ameliorated. So, in having regard to the fact of importation in the course of what was intended to be imminent subsequent export,care has to be taken to avoid double counting of culpability.

11. There is no doubt that in determining the appropriate enhancement of sentence of imprisonment to be imposed in consequence of theimport or export of heroin of amounts less than 1 kg regard is to be had to the amount in question. As Mr Fenton invited us to notein his written submission, in HKSAR v Rubiano Restrepo & Another [6] this Court approved specifically of an enhancement of sentence of 6 months’ imprisonment, to a starting point of 14½ years’imprisonment, to reflect the aggravating factor of importation into Hong Kong by the applicant of 380 grammes of cocaine. As a broadindication of the appropriate range of enhancement, we note that in HKSAR v da Silva [7] this Court determined that the appropriate enhancement of the starting point taken for sentence to reflect the importation into HongKong by the applicant of 543 grammes of heroin hydrochloride and 173.66 grammes of monoacetylmorphine hydrochloride was one year’simprisonment.

12. In support of her submission on behalf of the respondent, that the judge’s enhancement of the starting point taken for sentenceof the applicant was not manifestly excessive and that the level of enhancement of sentence lay within the judge’s discretion,Ms Wong Kam Hing referred us to the judgment of this Court in HKSAR v Chu Kwok Chu [8]. There, Yeung VP described the level of enhancement of sentence to be imposed in consequence of unlawful trafficking with an internationalelement as falling within the discretion of the sentencing judge, so that this court would not interfere unless it determined thatthe judge was wrong. In that case, the applicant had unlawfully trafficked in 74.81 grammes of heroin hydrochloride, which he hadimported into Hong Kong after swallowing pellets in which the heroin was contained in the Mainland. The judge took a starting pointfor sentence of 8½ years’ imprisonment, which he enhanced by one and a half years’ imprisonment to reflect the twin aggravatingfactors, namely the defendant’s multiple previous convictions for drug-related offences and the importation of the drugs on thatoccasion. In Abdallah, Stuart-Moore VP stipulated those factors to be two of the four aggravating factors calling for an enhancement of sentence.[9] The judge discounted the resulting total of 10 years’ imprisonment by one third, to reflect the applicant’s plea of guilty,and imposed a sentence of 6 years and 8 months’ imprisonment on the applicant.

13. Although the judge did not condescend to stipulate the amount of the enhancement to reflect each of the aggravating factors, it isto be noted that the applicant had an appalling criminal record which included 17 convictions for offences related to dangerous drugs,of which four were for unlawful trafficking in dangerous drugs.[10] In the result, this Court said that given the “number and nature of aggravating factors” the enhancement of sentence was notmanifestly excessive.[11] Clearly, that case turned on its own particular facts and, with respect to Ms Wong, is of no assistance to this Court.

14. In all circumstances, we are satisfied that the enhancement of sentence stipulated by the judge of 2 years’ imprisonment to reflectthe “international element” was manifestly excessive. In our judgment, having regard in particular to the fact that the amountof heroin hydrochloride in which the applicant unlawfully trafficked was only 220 grammes, the appropriate enhancement of sentencewas 6 months’ imprisonment. Accordingly, the appropriate resulting enhanced starting point for sentence is 12 years and 6 months’imprisonment. Affording the applicant a discount of one third for his plea of guilty, the appropriate sentence to be imposed onthe applicant is 8 years and 4 months’ imprisonment.

Conclusion

15. In the result, we allow the application for leave to appeal against sentence and, treating the hearing of the application as thehearing of the appeal, we quash the sentence of 9 years and 4 months’ imprisonment imposed by the judge. In its place, we substitutea sentence of 8 years and 4 months’ imprisonment.

(MICHAEL LUNN) (IAN MCWALTERS)
Justice of Appeal Judge of the Court of
First Instance

Ms Wong Kam Hing, Fanny, SADPP, of the Department of Justice, for the respondent

Mr Jeffrey George Fenton, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the applicant


[1] R v Lau Tak Ming and Others [1990] 2 HKLR 370.

[2] Appeal Bundle, page 7 O-R.

[3] HKSAR v Abdallah [2009] 2 HKLRD 437.

[4] HKSAR v Abdallah; page 453, paragraph 43.

[5] HKSAR v Abdallah; page 447, paragraph 21.

[6] HKSAR v Rubiano Restrepo & Another (CACC 487/2012; unreported, 8 May 2013) at paragraph 9.

[7] HKSAR v da Silva [2010] 5 HKLRD 576 at page 579, paragraph 13.

[8] HKSAR v Chu Kwok Chu (CACC 371/2012; unreported, 9 May 2013) at paragraph 17.

[9] HKSAR v Abdallah; page 453, paragraph 42.

[10] HKSAR v Chu Kwok Chu at paragraph 8.

[11] HKSAR v Chu Kwok Chu at paragraph 29 .