HKSAR v. OMARY MUSSA ABDALLAH

CACC 494/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 494 OF 2012

(ON APPEAL FROM HCCC 284 OF 2010)

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

1.  The applicant, a citizen of Tanzania, appears in person and seeks leave to appeal out of time against the sentence of 15 years and 4 months’ imprisonment imposed upon him by the late Mackintosh J on 26 October 2010 in respect of a charge of unlawfully trafficking at Hong Kong International Airport on 8 February 2010 in a dangerous drug, namely 461.64 grammes of heroin hydrochloride and 400.72 grammes of monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant pleaded guilty to that charge in the Magistracy on 27 August 2010, in consequence of which he was committed for sentence in the High Court.

FACTS

2.  In tendering his plea of guilty the applicant accepted as the factual basis for that plea that he had been detained at Hong Kong International Airport on 8 February 2010, having arrived on a flight from Dubai, and that on a number of days thereafter he had discharged from his body a total of 114 pellets containing the dangerous drugs the subject of the charge.  The applicant accepted in a video record of interview that he had ingested the pellets in Dubai and had brought them to Hong Kong in anticipation of being paid US$5,000 on delivery of the dangerous drugs to Hong Kong.

REASONS FOR SENTENCE

3.  In his reasons for sentence the judge noted that the total narcotic element of the dangerous drugs imported into Hong Kong was 861 grammes of heroin or heroin derivative.  Of that, he said that 861 grammes of heroin fell into the bracket of 600 to 1,200 grammes for which the Court of Appeal had prescribed a starting point for sentence of 20 to 23 years’ imprisonment.  In consequence, the judge said that he took a starting point for sentence of 22 years’ imprisonment.  The judge went on to state that he regarded the fact of importation of the dangerous drugs into Hong Kong as a factor in aggravation of the offence by a reason of which he increased the starting point for sentence to 23 years’ imprisonment.  Affording the applicant a one third discount from the starting point for his plea of guilty, the judge sentenced the applicant to 15 years and 4 months’ imprisonment.

Application for leave to appeal out of time

4.  The applicant’s notice for leave to appeal against sentence out of time contained in Form XI was filed with the court on 10 December 2012, more than 24 months out of time.  In an affirmation attached to Form XI the applicant seeks to explain the fact that his application is out of time by saying that having received the sentence of imprisonment imposed by the judge he felt so confused that he was unable to control himself.  The passage of time has restored his control so that he was now able to make the application.  Today, in his oral submission, the applicant has added the fact that whilst in custody he had come to be aware of sentences passed on other inmates which were less passed on the sentence imposed upon him. 

GROUNDS OF APPEAL AGAINST SENTENCE

5.  In his home-made grounds of appeal against sentence, the applicant seeks the leniency of the court, inviting the court to have regard to the hardship caused to his family, in particular his wife and two young children, by his incarceration in Hong Kong and his inability to support them in Tanzania.  At the hearing today, the applicant had read to the court a letter in mitigation seeking leniency on the same basis.  He asked for the forgiveness of the court and expressed his remorse for what he had done.  In addition, in accompanying written submissions the applicant invites this court to have regard to its judgments in HKSAR v Thattephin Tanyamon [2008] 5 HKLRD 155; HKSAR v Ng Kie Tiong (CACC 456/2007; unreported, 29 August 2008) and HKSAR v Kayani Hamid Iiyas (CACC 521/2004; unreported 13 June 2005).  The thrust of the applicant’s submissions in respect of those cases was that the sentence imposed on him was disproportionately harsh when compared to the ultimate sentence imposed upon the appellants in those cases.

A CONSIDERATION OF THE SUBMISSIONS

6.  In HKSAR v Abdallah [2009] 2 HKLRD 437 this court, differently constituted, considered and disapproved of the judgment in Thattephin Tanyamon.  In the judgment in Ng Kie Tiong the court was concerned with methamphetamine hydrochloride and not heroin.  In Kayani Hamid Iiyas this court was concerned with a conspiracy to traffick unlawfully in heroin in which the amount of heroin the appellant knew to be the subject of the conspiracy was at issue.  Accordingly, none of the authorities cited by the applicant is of assistance in the instant case.

7.  In Abdallah this court laid down guidelines for sentencing thereafter in cases of unlawful trafficking in heroin and cocaine in amounts of 600 grammes and more.  No doubt, it was with those guidelines in mind that the judge said that for the bracket of 600 to 1,200 grammes of heroin the range of sentence was 20 to 23 years’ imprisonment.  The court went on to identify various circumstances of aggravation of the commission of the offence which called for an enhancement of the range of starting points the court identified in the guidelines.  One of the four factors of aggravation is the fact of an “international element”.  Finally, the court stated that if an amount of over 1 kg of heroin or cocaine was involved in the unlawful trafficking it was to be anticipated that the enhancement of sentence for any one of the four stipulated factors of aggravation would be not less than two years’ imprisonment.

Guidelines : range of sentence

8.  On a purely arithmetic application of the guideline articulated in Abdallah, the total quantity of 861 grammes of heroin provides for a sentence of 21 years and 4 months’ imprisonment.  Of course, one of the purposes of providing for a range of sentence for a particular bracket of the dangerous drug is to permit the sentencing judge to have regard to other factors relevant to sentence.  However, in this case the judge did not condescend to any articulation of the reason why he took a sentence of 8 months higher than that provided for by a purely arithmetic calculation.

9.  On the other hand, in imposing an additional sentence of only one year’s imprisonment to reflect the aggravating feature of the international element of the importation of drugs into Hong Kong, the judge might be regarded as having been somewhat lenient, given that an additional sentence of no less than two years’ imprisonment was stipulated to be the sentence to be anticipated if the amount of the dangerous drugs was above 1 kg.

Conclusion

10.  In the result, we are satisfied that the starting point for sentence taken by the judge of 23 years’ imprisonment lay within the appropriate range of sentence for the offence, as was the resulting sentence of 15 years and 4 months’ imprisonment imposed on the applicant.  Given that the applicant’s explanation for the two-year delay in filing his notice of application for leave to appeal against sentence is without any merit, we refuse the application for leave to appeal against sentence out of time.