Jersey Unreported Judgments

[2007]JCA146

COURT OF APPEAL

18^th July 2007

Before     :

The Hon Michael Beloff, Q.C., President; Dame Heather Steel; and Geoffrey Vos, Esq., Q.C.

Tim Kong

-v-

The Attorney General

Application for leave to appeal against the sentence passed by the Superior Number of the Royal Court on 3^rd May 2007 on guilty pleas to:

1 count of:	Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) 1999. (Count 4).
1 count of:	Supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978. (Count 5).

Leave to appeal was refused by the Deputy Bailiff sitting as a single judge on 19^th June 2007.

S. Sharpe, Crown Advocate.

Advocate L. J. L. Buckley for the Appellant.

JUDGMENT

STEEL JA:

This is the judgment of the Court.

1.        On 2^nd February 2007 in the Royal Court the Applicant, Tim Kong, who is 56 years of age pleaded guilty to two counts of a five count indictment.  Count 4 was an offence of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of a controlled drug, diamorphine, contrary to Article 61(2)(b) of the Customs an Excise (Jersey) Law 1999.  Count 5 was an offence of supplying a controlled drug, diamorphine, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law 1978.

2.        His Co-Defendant, Shomsul Islam, pleaded guilty to Counts 2 and 3 of the same indictment, being offences of possession with intent to supply a controlled drug, diamorphine, contrary to Article 8(2)(b) of the Misuse of Drugs (Jersey) Law 1978 and possession of a controlled drug, cannabis, contrary to Article 8(1) of the Misuse of Drugs (Jersey) Law 1978.

3.        On 3^rd May 2007, in the Royal Court, the Applicant was sentenced to a term of five years' imprisonment concurrent in respect of each offence.

4.        His Co-Defendant was sentenced to a term of five years' imprisonment in respect of Count 2 with a term of six months' imprisonment to be served concurrently in respect of Count 3.  His drug trafficking benefit was determined at £44,221, the amount to be recovered and paid by way of a confiscation order was £210.50.  The Applicant was born in Hong Kong, and his native language is Cantonese. The Co-Defendant, Shomsul Islam, was born in Bangladesh, and is 32 years of age.    Both men were of hitherto good character.

5.        This is a renewed application for leave to appeal sentence, leave having been refused by the Deputy Bailiff, sitting as a single judge of the Court of Appeal.  The Applicant submits that the sentences on Counts 4 and 5 were wrong in principle and/or manifestly excessive.

Grounds of the Application

6.        Ground One.  That the Crown's conclusions were misleading and confused in relation to the respective roles and culpability of the Applicant and his Co-Defendant which resulted in a sentence which did not properly reflect the Applicant's lesser role.

7.        Ground Two.  The Crown recommended a starting point of eleven years reduced by six years to a total of five years to reflect all available credit for mitigation.  The sentence passed by the Court allowed only five years' credit for mitigation from a starting point of ten years' which was, in the circumstances, insufficient.

8.        Ground Three. The Court failed to explain how the sentence was decided, having reduced the starting point without commensurately reducing the final sentence, so that the Court failed to fulfil its duty of transparency.

Facts

9.        On the afternoon of Thursday 16^th November 2006, Islam was stopped by a Customs Officer at the airport, and told the Officer that he had been to London to visit his family.  He was placed under surveillance and observed as he left the airport in a taxi and travelled to his home address in Sand Street, St Helier.

10.      At approximately 11.00 pm the same evening Islam was observed leaving his home and walking through the Parade towards the General Hospital.  He walked past the Hospital, then turned back towards the Accident & Emergency Department.  He approached the steps, walked to the top and peered into the waiting room through the glass doors, but did not enter.  Several minutes later he walked down the steps and went to the junction of Gloucester Street where he turned round and returned to the A&E Department and waited half way up the stairs.

11.      At approximately 11.12 pm the Applicant was seen walking towards the A&E Department, and at approximately 11.15 pm he climbed the staircase where Islam was waiting.

12.      They were observed meeting very briefly on the staircase before parting and leaving the area in different directions.  Islam turned right and walked in the direction of the Town Hall. The Applicant turned left and walked towards Cheapside.

13.      The Applicant was arrested and cautioned as he left the staircase outside the Hospital.  He was searched.  A mobile phone and £70.65 was seized.  He was carrying a key with a large fob marked Room 4 Hotel Sandranne.  He was also found to be in possession of a bus ticket detailing a journey from Jersey Airport to the Weighbridge dated 16^th November 2006 which he said he had purchased after having travelled from London to Jersey that morning.

14.      Islam was arrested, and a white paper bag containing a brown wrapped package was recovered from his inside coat pocket.  The outer wrapping was a paper sanitary disposal bag.  The package was later examined and found to contain 99.62 grams of heroin, 49% by weight of diamorphine.  The street value of this heroin is estimated to be between £19,924 and £49,810.  The wholesale value is estimated at between £17,550 and £19,650.

15.      A search of Room 4 at the Sandranne Hotel was made and travel documents and tickets were found showing the Applicant's travel to Jersey that morning from London City Airport and which indicated that he intended to return on 20^th November.  The next day a further search revealed a visitor registration card and some paper sanitary bags which were later found to be identical to the outer wrapping of the seized package of heroin.

16.      We are grateful to Advocate Buckley on behalf of the Applicant and Advocate Sharpe on behalf of the Respondent for their helpful submissions.

Ground One   

The Applicant submits that the Court was presented with conflicting and confusing information regarding the Applicant's role in the offence, such as to result in the Court receiving an inaccurate portrayal of the Applicant and his Co-accused's respective roles which resulted in a manifestly excessive sentence.

17.      We have been referred to the leading guideline case of Rimmer, Lusk and Bade v Attorney General [2001] JLR 373 p.31 para 34 which reads

"The position of a particular defendant on a particular count within one of the bands is to be determined by reference to the weight of the drugs and their role and involvement as principal factors, together with other lesser but relevant factors."

18.      Advocate Sharpe for the Crown described to the Royal Court the role of each Defendant from an agreed factual summary.  She invited the Court to adopt a starting point of 11 years to reflect the quantity of heroin (99.62 grams) and the respective roles of each.  She stated:

"Both Defendants were fully co-operative with the authorities.  Both have pleaded guilty.  Islam appears to have been Kong's contact on the Island, Kong having imported the heroin.  They are both cogs in the machinery of distributing heroin within the Island and in the Crown's view both are equally culpable."

She went on to state:

"Kong has demonstrated remorse for his actions.  It is the Crown's view that his role in the offence was lesser than that of his Co-Defendant.  He is a classic courier who imported illegal drugs in order to pay off debts. Unusually they are debts that resulted from gambling rather than drug debts.  Kong is a vulnerable person who was the perfect target for drug dealers looking for a mule.  He has the benefit of good character.  The Crown takes the view that Islam, who also has gambling debts, had a greater role in this offence than Kong and of the two he was the guiding hand."

19.      At the hearing Advocate Landick addressed the Royal Court in mitigation on behalf of Islam in the course of which he said:

"I shall be arguing, at the very least, there should be no greater attribution and responsibility to Mr Islam than to Mr Kong who perhaps, at best, if anything had a greater role because he is the one who brought the drugs into Jersey." 

20.      He later described to the Court the involvement of Mr Kong who

"collected the package off somebody in England who is not identified in the factual summary and spent several hours flying from City Airport in London to Jersey before he made his way from his accommodation, Room 4 at the Sandranne Hotel, to the A&E Department's steps outside the Hospital in the Parade so his contact with the drugs was much longer than that of Mr Islam."

21.      At the conclusion of this mitigation the Crown was asked to comment on the apparent dichotomy between "both are equally culpable" and the "Crown's view that Kong's role in the offence was lesser than his Co-Defendant."  Advocate Sharpe's response was that if she were able to remove "both are equally culpable" she would.  The interchange illustrates that the Royal Court was fully apprised of the tension between the two formulae.  We are confident that the position was as a result of that interchange, clear in the Royal Court's mind.

22.      The Crown had therefore accepted and described the Applicant's lesser role as a vulnerable mule.  The statement of facts had been clarified to identify that perception and all the other information before the Court supported that conclusion.

23.      Advocate Buckley further submits that the Court may have been disproportionately influenced by Advocate Landick's submissions, as set out above, in mitigation on behalf of Islam which exaggerated the role played by the Applicant, and which may have misled the Court into the conclusion that both roles were equal.  We are not so persuaded.  The Crown's position was clear and we have neither heard nor read anything to indicate that the Court was influenced to the detriment of the Applicant by anything which concerned the Applicant's role said on behalf of Islam.

Ground Two

The Crown recommended a starting point of eleven years reduced by six to a total of five years to reflect all available credit for mitigation.  The sentence passed by the Court allowed only five years' credit from a starting point of ten years which was in the circumstances insufficient.

24.      Advocate Buckley reminded the Court of the mitigation available to the applicant in addition to the guilty plea.  This included his age, his good character; his role as mule with no prior involvement with the illegal drug industry and who was not a drug user; the fact that he derived no financial benefit from his involvement; he was an isolated man living on charity and benefits, the offence being committed out of desperation and a desire to settle gambling debts and to return to Hong Kong.  The Court was reminded of his co-operation and remorse.  The Social Enquiry Report detailed his medium risk of re-offending due to his financial difficulties, his low risk to the public and a medium to high risk of self harm.

25.      The Royal Court also considered a letter of apology to the Court from the Applicant who described himself as anti-drugs.   On his behalf it was submitted that the six years' credit recommended by the Crown should have been adopted.

26.      It is not in issue that sentencing is a discretionary exercise in every case.   Here notably the Court adopted a lower starting point than that recommended by the Crown. It properly indicated, by reference to the guideline bands set out in Rimmer, that starting points are flexible and accepted.  

"Mr Tremoceiro's clear argument and the particular argument of each accused that if the amount went up slightly we would be in the higher band and after careful consideration we will make the starting point for both the accused at 10 years."

27.      There is here nothing to indicate that the Court had failed to take into account all the mitigation available to the Applicant nor that five years' credit was inappropriate or insufficient. The mitigation on behalf of each Defendant was indeed expressly referred to as "valuable". 

Ground Three

The Court failed to explain how the sentence was decided.  They reduced the starting point from that contended for by the Crown without commensurately reducing the final sentence. Accordingly the Court failed to fulfil its duty of transparency referred to in Shahnowaz v Attorney General [2007] JCA 072.

28.      In sentencing the Learned Commissioner stated

"The Learned Jurats have carefully considered all the valuable mitigation given by Advocates Landick and Tremoceiro and we will, in the light of Advocate Landick's comments and the mitigation available slightly reduce one of the sentences.  Islam has named his supplier in Court but he is in our view as much involved as Kong."

29.      The sentences passed were thus the same, determined with reference to the weight of the drugs, the respective roles and all the other information before the Court.  The role of Islam had been described as greater than that of the Applicant; he having admitted benefit from drug trafficking in a sum in excess of £44,000.  The Court gave him substantial credit for his other mitigation to reduce his sentence "slightly".

30.      We were referred to the Applicant's sense of grievance which results from the Court having failed to give a full explanation as to how the sentence was reached and the possible ambiguity regarding the slightly reduced sentence for Islam.  We were referred to Shahnowaz in which a similar issue arose whereby the Court lowered the recommended starting point but imposed the Crown's recommended sentence.

31.      It was sensibly conceded on behalf of the Applicant that this "transparency" ground does not stand alone but goes to support Grounds 1 & 2.  While, where a Court does not fulfil its judicial duty by explaining the decision to which it has come, it may expose itself to a criticism that it has acted arbitrarily, if it is a sound decision that cannot be faulted on recognised grounds the absence of such explanation cannot by itself provide one.  We re-state however the necessity in each case for a Court to explain fully to a Defendant the rationale for a sentencing decision.

32.      In the present case the Court has considered whether the Applicant's sense of grievance may be justified in relation to credit for his mitigation and we cannot conclude that his sentence was not carefully and correctly calculated.

33.      The Court, which in every case, has a wide discretion as to sentence, had to weigh all the material and information in relation to this offence and the two offenders.  It cannot be argued on behalf of the Applicant that a five year sentence for the importation of a significant commercial amount of heroin was either wrong in principle or manifestly excessive.

34.      The Application is refused.

Authorities

Customs an Excise (Jersey) Law 1999. 

Misuse of Drugs (Jersey) Law 1978.

Rimmer, Lusk and Bade v Attorney General [2001] JLR 373.

Shahnowaz v Attorney General [2007] JCA 072.