HKSAR v. EZE MAXWELL UDOKA

CACC 134/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 134 OF 2012

(ON APPEAL FROM HCCC NO 36 OF 2011)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.  The applicant pleaded guilty before Deputy Judge Lugar-Mawson (“the judge”) in the High Court on 16 March 2012 to one count of unlawfully trafficking in 4.12 kilogrammes of a powder containing 2.40 kilogrammes of cocaine, 1.85 kilogrammes of a solid containing 0.84 kilogramme of heroinhydrochloride and 0.39 kilogramme of monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The total amount of narcotic for sentencing purposes (the guidelines for cocaine and heroin being the same) was 3.63 kilogrammes. On the same day, he was sentenced to 18 years’ imprisonment.

2.  On 3 April 2012, the applicant filed a Form XI Notice applying for leave to appeal against his sentence.  By a Notice of Abandonment, filed on 8 June 2012, the applicant sought to abandon his application for leave, which was formally dismissed on the same day, pursuant to Rule 39 of the Criminal Appeal Rules, Cap 221A.

3.  By an affirmation dated 8 November 2016, the applicant now seeks to treat his previous abandonment as a nullity and to revive his application for leave to appeal against sentence.

The facts

4.  On 2 September 2010, the applicant arrived at Hong Kong International Airport on a connecting flight from Nairobi, Kenya, his journey having originated in Lagos, Nigeria, where his check-in baggage had been checked all the way through to Hong Kong.  Upon his arrival at Hong Kong International Airport, and whilst still inside the restricted area for passengers, the applicant approached the ferry ticket counter of Chu Kong Passenger Transport Company (“Chu Kong”) in order to buy a ferry ticket to Shekou on the Mainland for the same day.  While exchanging money in order to purchase a ferry ticket, an employee of Chu Kong was despatched to retrieve the applicant’s luggage on his behalf.

5.  Meanwhile, Customs officers had carried out an ion-scan test of the applicant’s luggage, which had tested positive for the presence of cocaine.  The collection of the luggage was therefore monitored. In due course, the employee of Chu Kong, tasked with retrieving the applicant’s luggage on his behalf, collected the luggage and was intercepted by Customs officers.  The applicant was in due course identified at the waiting area for transit passengers and escorted to Arrival Hall B for customs clearance and inspection.

6.  A search of the applicant’s luggage (conducted in his presence) revealed, inter alia, the presence of two large metal screws (Exhibits P6 and P7 respectively) and 273 sets of earphones.  Upon opening each of the metal screws in turn, there were found:

(a) in Exhibit P6, 17 packets containing 1.71 kilogrammes of a powder containing 1.23 kilogrammes of cocaine, as well as 19 packets containing 1.85 kilogrammes of a solid containing 0.84 kilogramme of heroinhydrochloride and 0.39 kilogramme of monoacetylmorphine hydrochloride; and

(b) in Exhibit P7, 14 packets containing 2.41 kilogrammes of a powder containing 1.17 kilogrammes of cocaine.

7.  The applicant was duly arrested and cautioned for contravening the relevant provisions of the Dangerous Drugs Ordinance in respect of all of the drugs found in his baggage.  The total retail value of those drugs was HK$5,338,100.

8.  In pleading guilty to the offence before the judge, the applicant accepted in terms that he was unlawfully trafficking in the dangerous drugs found in Exhibits P6 and P7, the subject matter of the indictment.

The mitigation

9.  The applicant was 46 years of age at the time of sentence.  Whilst accepting that sentencing in the applicant’s case was very much determined by the applicable guidelines, counsel for the applicant set out his background in considerable detail, submitting, inter alia, that he had a heart problem; that he was an honest, hard-working person; and that he was a first-time offender.  It was also contended that Hong Kong was not the intended final destination of the dangerous drugs.

10.  On the basis that the combined quantity of the dangerous drugs for sentencing purposes was 3.63 kilogrammes, counsel submitted, in accordance with the guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437 that the sentence for between 1,200 and 4,000 grammes of heroin or cocaine narcotic was 23 to 26 years’ imprisonment.  Counsel also acknowledged that the relevant enhancement of sentence for the international element of bringing the drugs across the border into Hong Kong was 2 years’ imprisonment.

11.  Finally, counsel requested the judge to note that under the legal system of Nigeria it is a criminal offence to export dangerous drugs, hence there existed a possibility that the applicant would be prosecuted again on the basis of the similar facts relating to his drug-trafficking activities upon his eventual deportation to Nigeria.

Reasons for sentence

12.  In passing sentence, the judge noted that the applicant had had a clear record and had certain health problems. Nevertheless, he found nothing in the applicant’s personal circumstances or the circumstances of the commission of the offence of any real mitigating value. He described the “theoretical possibility” that the applicant might be prosecuted again in Nigeria in due course when he is finally returned to his country of origin as “highly unlikely”.

13.  Accordingly, taking the quantity of dangerous drugs into account, as well as the international element of importing the drugs into Hong Kong, the judge adopted a notional sentence after trial of 27 years’ imprisonment.  Giving the applicant a one-third discount for his plea of guilty, the judge imposed a sentence of 18 years’ imprisonment.

The application to treat the abandonment as a nullity

14.  Attached to the applicant’s first Affirmation of 8 November 2016 (“the 1^st Affirmation of the applicant”) was a handwritten note, in which the applicant stated that he had previously abandoned his application for leave to appeal against sentence because:

“…my father was unwell and it actually affected me so much to the point of me becoming emotionally and mentally down, due to my father’s health.”

15.  Upon the Master’s direction of 1 March 2017 that the applicant should explain why his abandonment was not the result of a deliberate and informed decision, the applicant filed a second affirmation on 10 March 2017 (“the 2^nd Affirmation of the applicant”) stating, inter alia, that:

“there is no way I would have abandoned my appeal in 2012 if I would have been in good health during that period.”

16.  Attached to the 2^nd Affirmation of the applicant was a Discharge Summary issued by Queen Mary Hospital, dated 31 March 2015.  In relation to his medical history, it contains, inter alia, the following record:

“Previously admitted for chest pain in 2/2011

ECG showed suspected ST elevation over V2-V6

Repeated ECG showed no serial change

Elevated Trop I 0.14->0.16 with CK 411->380

Consulted cardiac, not likely ACS

MRI cardiac for perfusion study done (4/2011)

1. No evidence of significant ischaemia, scar or old infarct

2. Mild MR and AR.

3. Mildly impaired LV function with LVEF of 49.3%

…

E admitted for heartburn for 4 months

Claim already had it for months and mentioned that to doctor but was not taken seriously before resulting in AED admission today when he mentioned that to prison doctor today

…”[1]

Grounds of appeal against sentence

17.  In his original Form XI Notice dated 3 April 2012, the applicant had set out three homemade grounds of appeal, namely that:

(i) He had a heart problem;

(ii) He would “face another big sentence” once he returned to his country of origin; and

(iii) There were other similar cases where defendants had received lighter sentences for similar quantities.

18.  In a handwritten note attached to the 1^st Affirmation of the applicant, he complained that the sentence was manifestly excessive.  He also said that in early 2016, he began to conduct research on sentences relevant to his case, and having discussed the matter with other inmates, he maintained that “the court had given lesser sentence on similar cases like mine”.  The applicant specifically referred to the three following cases:

(a)   In HKSAR v Lau Ka Wing (unrep., CACC 120/1999), the applicant sought to appeal against a term of imprisonment of 16 years imposed on him, following his plea of guilty, in respect of a single count of trafficking unlawfully in 5,825.57 grammes of heroin hydrochloride.  His application for leave to appeal was dismissed[2];

(b)   In HKSAR v Amanadi Gandonou Eugene (HCCC 8/2011), which was a decision at first instance, the defendant pleaded guilty to one count of trafficking in a 3.36 kilogrammes of cocaine, which he imported into Hong Kong from Benin.  Having referred to the sentencing guidelines in HKSAR v Abdallah, namely that trafficking in heroin of amounts between 1,200 and 4,000 grammes should call for a sentence of 23 to 26 years’ imprisonment, and having considered all the other circumstances of the case, Deputy Judge Toh (as she then was) adopted a starting point of 24 years’ imprisonment, before giving the defendant a one-third discount for his plea, resulting in a term of 16 years’ imprisonment; and

(c)   In HKSAR v Lee Hin He (HCCC 371/2015),again a first instance decision, the defendant pleaded guilty to a count of unlawfully trafficking in 1.692 kilogrammes of cocaine, by allowing a parcel from Brazil, which he knew contained the dangerous drugs in question, to be successfully sent to his Hong Kong address. Deputy Judge Line adopted a starting point of 22 years’ imprisonment, which he enhanced by 9 months for the international element.  He went on to give the applicant a discount of 45% on the basis of his guilty plea and his related assistance provided to the authorities.  The resulting sentence was 12½ years’ imprisonment.

19.  In written submissions dated 26 February 2017, the applicant said that he repented and wanted to start afresh, emphasising that he was remorseful.  He also said that the prison record showed him to be an exemplary prisoner, who had been fully rehabilitated.  Also attached to his submissions was a letter from the Hong Kong Christian Kun Sun Association, detailing the applicant’s involvement in bible studies whilst in prison.

20.  Before us this morning, the applicant has renewed his plea for mercy for the sake of his family.

Respondent’s submissions

21.  Ms Janice Cheuk, on behalf of the respondent, has submitted that the health problem referred to by the applicant does not attain the requisite threshold expected from him, so as to demonstrate that his act of abandonment was not the result of a deliberate and informed decision.  In any event, the applicant abandoned his application for leave to appeal against sentence on 8 June 2012, no less than 4 years and 5 months before he sought to resuscitate his appeal.  Such a delay is inordinate.

22.  Ms Cheuk further submitted that there is no merit in the applicant’s substantive appeal against sentence, since:

(a)   The starting point and the enhancement of the starting point adopted by the judge were correct and in line with relevant authority and guidelines;

(b)   A prisoner’s medical condition and/or family circumstances are generally not relevant considerations in determining the length of sentence for an offence of this nature;

(c)   The judge could not be faulted for describing the prospect of further prosecution by the Nigerian authorities as a “theoretical possibility” only, and “highly unlikely” in any event; and

(d)   An applicant, whose sentence is neither wrong in principle nor manifestly excessive, cannot validly avail himself of a complaint of disparity in respect of sentences passed on other defendants, in different cases, on different facts.

Consideration

23.  There is no valid basis upon which we could hold that the applicant’s decision to abandon his appeal against sentence on 8 June 2012 was not the result of a deliberate and informed decision on his part, so as to suggest that his mind did not go with his act.  The length of time the applicant has taken before trying to revive his application for leave to appeal, namely 4 years and 5 months, coupled with the matters he has averred as to his state of mind at the time he abandoned his appeal, none of which come anywhere near establishing that he did not intend to abandon his appeal, leave us in no doubt that the applicant well knew what he was doing when he made the decision to abandon his appeal.

24.  Accordingly, we refuse the application to treat the Notice of Abandonment of 8 June 2012 as a nullity.  It follows that we have no jurisdiction to entertain the applicant’s application for leave to appeal against sentence.  However, in view of the fact that the applicant is unrepresented, Legal Aid having been refused, we shall comment on his proposed grounds of appeal against sentence.

25.  Both the starting point and the enhancement for the international element involved in bringing the dangerous drugs across the border into Hong Kong are unexceptional and unimpeachable.  Indeed, adopting a strictly arithmetical approach by measuring the quantity of 3.63 kilogrammes of narcotic against the appropriate guideline of 23 to 26 years’ imprisonment, the starting point for sentence would have been about 25½ years’ imprisonment.  The enhancement for the international element involved should have been 2 years’ imprisonment; thus making an overall notional sentence after trial of 27½ years’ imprisonment.  The notional sentence after trial adopted by the judge was 27 years’ imprisonment.

26.  Accordingly, there can be no complaint about the sentence after trial or the discount for plea of guilty, which ultimately resulted in a sentence of 18 years’ imprisonment being passed.

27.  This Court has said time and time again that, where a sentence is properly within the relevant guidelines, it will not be impressed by reference to other sentences passed, or approved, in different circumstances, on different facts, in different cases.  Furthermore, the applicant’s personal circumstances cannot realistically mitigate a sentence for an offence as serious as international drug trafficking.  This was an enormous quantity of drugs, passing it would seem through Hong Kong on their way to the Mainland, worth well over HK$5 million.

28.  The application must be refused.