HKSAR v. TOERAB MOHAMEDAJOEB

CACC 278/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 278 OF 2010

(ON APPEAL FROM HCCC NO. 411 OF 2009)

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JUDGMENT

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

1.  On 19 July 2010, the applicant pleaded guilty before Wright J to a single count on an indictment charging him jointly with his wife and Mr Shardhanand with trafficking unlawfully at Hong Kong International Airport in dangerous drugs on 2 June 2009, namely 1.46 kg of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant was sentenced to 16 years and 8 months’ imprisonment.

2.  Having filed a notice of application for leave to appeal against conviction and sentence, Form XI, on 23 August 2010 the applicant filed notice of abandonment on 28 September 2010.  In consequence, the application was dismissed on the same day, by operation of rule 39 of the Criminal Appeal Rules, Cap 221.

Notice of abandonment: nullity

3.  By an affirmation dated 8 July 2014, the applicant sought the leave of the Court to treat the abandonment of his appeal against sentence as a nullity, explaining that he filed a notice of abandonment having been informed that, if he wished to make an application to be transferred to Surinam, his home, to serve his sentence, such a transfer could not take place whilst an application for leave to appeal against sentence was outstanding.  However, after the matter had been processed for four years, he had been advised that no such transfer was possible because that was no reciprocal arrangement between Hong Kong and Surinam.

Grounds of appeal against sentence

4.  Of the sentence imposed on him, the applicant submitted that it was “very heavy and to(o) much”.  He invited the Court to have regard to sentences imposed prior to the judgment of this Court in HKSAR v Abdallah,[1] where lesser sentences of imprisonment were imposed in circumstances similar to his own.  Furthermore, he contended that he had given a non-prejudicial statement to the prosecution and had been willing and available to give evidence in the trial of his co-accused if called upon by the prosecution.  In doing so, he had placed himself at risk.  However, he had not been afforded any discount in his sentence.

The respondent’s submissions

5.  On behalf of the respondent, in his written submissions, Mr Eddie Sean informed the Court that the respondent did not oppose the application that the notice of abandonment be treated as a nullity, but he invited the Court to dismiss the application for leave to appeal against sentence on its merits.  He referred to the judgment of a differently constituted division of this Court in HKSAR v Sarkuna [2], in which this Court had accepted that the applicant’s abandonment of his application for leave to appeal against sentence was a nullity, in circumstances where he had done so in order to pursue an application to be transferred under the Transfer of Sentenced Persons Ordinance, Cap. 513 to serve the balance of his sentence.

6.  Mr Sean invited the Court to receive and we did receive various items of correspondence and documentation that evidenced the fact that the following steps had taken place in the application for transfer by the applicant:

(i) on 2 November 2010, he made an application pursuant to the Transfer of Sentenced Persons Ordinance, Cap. 513, to be transferred to Surinam; 

(ii) on 4 November 2010, the application was referred to the Secretary for Security;

(iii) on 11 May 2011, the Secretary for Security informed the applicant in writing that there was no bilateral agreement between the government of Surinam and Hong Kong concerning the transfer of sentenced persons and that, having been advised by the embassy of the Republic of Surinam that its laws did not allow for such a transfer of prisoners, in those circumstances, his application for transfer was “suspended” pending further notice from the Government of Surinam;

(iv) on 29 January 2014, the applicant having approached the Society for Community Organization they made enquiries of the Secretary for Security in respect of progress in the application for the transfer of the applicant to Surinam; and

(v) on 12 February 2014, the Secretary for Security notified the applicant in writing that his application for transfer could not be processed further without the consent of the Government of Surinam.

The facts

7.  On the afternoon of 2 June 2009 the applicant was intercepted by police officers as his two suitcases were being loaded by a taxi driver into a taxi at Hong Kong International Airport.  On 31 May 2009, the applicant and his wife, together with their co-accused at trial, commenced their travel by air from Paramaribo, Surinam via Amsterdam, arriving in Hong Kong on 2 June 2009. 

8.  Secret compartments were discovered in each of the applicant’s two suitcases, concealed in which was the cocaine, the subject of the count on indictment.  Its retail street value was about $2,520,000.

9.  Under caution, the applicant said that his airline ticket and hotel expenses and that of his wife had been provided to him, together with US$800 to cover expenses.  He had been provided with the two suitcases, but he asserted that he had no knowledge that they contained dangerous drugs.  However, in pleading guilty the applicant acknowledged that he was trafficking unlawfully in dangerous drugs.

Reasons for sentence

10.  In his reasons for sentence, the judge accepted that the applicant’s role was that of a courier only.  Having adverted to the judgment of this Court in HKSAR v Abdallah  the judge stipulated a starting point for sentence of 23 years’ imprisonment.  He said that he enhanced that starting point for sentence by two years’ imprisonment to reflect the fact that the dangerous drugs had been imported into Hong Kong, which was a factor of aggravation in the commission of the offence.

11.  Of the issue of whether or not the applicant was entitled to a further discount in sentence to reflect his assistance to the authorities in providing a non-prejudicial statement to the police and offering to testify for the prosecution, albeit that the offer was not taken up, the judge said:[3]

“ I recognize that this course of conduct may be categorised as reflecting remorse on his part, but such allowance as is made for that aspect of his co-operation is well catered for in the one-third discount for the plea.

In my judgment, the fact that somebody makes a statement and offers, but is not called upon, to give evidence on behalf of the prosecution is not, on its own, a matter which entitles him to further discount.  There may be circumstances where such a discount would be appropriate, but this is not one.  I say that having had the benefit of the non-prejudicial statement being made available to me during the course of the trial and consequently being aware of its contents.”

12.  Affording the applicant a discount of one-third from that stipulated as the starting point for sentence, the judge imposed a sentence of 16 years and 8 months’ imprisonment on the applicant.

A consideration of the submissions

The abandonment of appeal against sentence: a nullity

13.  In HKSAR v Sarkuna the Court was satisfied that the applicant’s abandonment of his application for leave to appeal against sentence was a nullity, namely that his mind did not go with his act, given the context that it was motivated by an application to be transferred to serve his sentence.  The facts of the case have some resonance with the facts obtaining in the case of the applicant.  There the applicant was advised that he could not pursue such an application whilst appeal proceedings in Hong Kong were extant.  That is the effect of section 4(2)(d) of the Transfer of Sentenced Persons Ordinance, Cap. 513, at least insofar as it precludes the Chief Executives from signing a warrant to effect the transfer where there are extant proceedings relating to the sentence imposed on the applicant.  Further, the applicant contended that he did not appreciate that he could not revive the application in respect of sentence if his application for transfer failed.

14.  In accepting that in the circumstances of the case the notice of abandonment was a nullity, the Court went on to observe the difficulties that flowed from the details of the form of the notice of abandonment and the fact that it was not in a language understood by the applicant:

“ The notice of abandonment was in English, not the applicant’s language, and it is entirely feasible that the applicant did not in the circumstances appreciate that if his application for transfer did not succeed, he would not be able to revive his appeal. In this regard, we repeat the point made in HKSAR v Yau Ka Ming, CACC 322/2009, 14 October 2010, that consideration should be given to pointing out in the form of notice of abandonment itself the consequence of abandonment, namely, that the application is thereby dismissed and may not later be revived. We further suggest that where a person signs such a notice which is not in his language, steps should be taken to ensure that the notice of abandonment – which is, after all, brief – be translated to the applicant so that he understands it and that the fact of that translation be certified.”

15.  The notice of abandonment form has since been amended recently, so that the ‘Notes’ appearing on the form include the following :

“ 1. …

2. Under that rule 39, on receipt by the Registrar of your notice of abandonment, your appeal is deemed to have been dismissed. The Court of Appeal has no inherent jurisdiction to permit your appeal to be reopened unless-

(a) your abandonment of the appeal is treated as a nullity; or

(b) there is a reference to the Court of Appeal by the chief executive under section 83P of the Criminal Procedure Ordinance (Cap. 221).

3. Only in exceptional circumstances, where the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, will the Court treat the abandonment as a nullity.”

16.  Having regard to all the circumstances, in particular the close chronological sequence in which the applicant lodged his notice of application for leave to appeal, his notice of abandonment and his application to be transferred to Surinam, together with the absence at that time in the notes on the notice of abandonment of the overall consequences of lodging that notice we are satisfied that the notice of abandonment and the consequent dismissal of the applicant’s application for leave to appeal against sentence is to be treated as a nullity.

Sentence

17.  The offence committed by the applicant having been committed after delivery of the judgment of this Court in HKSAR v Abdallah on 12 March 2009, the judge was correct to have regard to the guidelines articulated in the judgment in determining the appropriate sentence of imprisonment to be imposed on the applicant.  Sentences imposed prior to that judgment in other cases are not relevant.  As the judge noted, the range of the sentences of imprisonment to be imposed for unlawfully trafficking in amounts of between 1,200 and 4,000 grammes of cocaine is between 23 and 26 years’ imprisonment.  The starting point for sentence of 23 years’ imprisonment stipulated by the judge for trafficking unlawfully in 1.46 kg of cocaine lay at the low end of that range.  Similarly, the enhancement that the judge ordered of two years’ imprisonment to that starting point, for the importation of 1.46 kg of cocaine, was entirely in accordance with what was suggested by this Court in Abdallah.

18.  As the judge stated in sentencing the applicant, the fact that he had made a non-prejudicial statement and an offer to give evidence is not by itself a basis to require that the Court afford the applicant a discount of sentence.  In the non-prejudicial statement, dated 24 May 2010, the applicant exonerated his wife of any knowledge or culpability in the commission of the offence and identified Joerawan Wikash Shardhanand, as the person at whose request he had agreed to carry the dangerous drugs to Hong Kong.   He was the third defendant named on the indictment, on which he and his wife and the third defendant were jointly charged with unlawful trafficking in the dangerous drugs.  On its face, that was a bare assertion without any supporting evidence.  Further, his wife stood trial together with the third defendant.  So, his account exonerating his wife of any knowledge or participation in the offence was contrary to the prosecution case.  In those circumstances it is readily understandable why the prosecution declined to call him as a witness for the prosecution in such circumstances.  At the hearing Mr Sean confirmed that the prosecution took the view at trial that, given what he had said about his wife, the applicant was not a credible witness.  Further, the prosecution was satisfied that it had a compelling case against the third defendant in any event.  In a result, that view proved to be correct and the third defendant was convicted by the jury.  We are satisfied that the judge was correct not to allow the applicant any discount of sentence on this basis.

Conclusion

19.  In the result, we are satisfied that there is no merit whatsoever in the applicant’s complaints about the sentence of 16 years and 8 months’imprisonment imposed on him by the judge.  Accordingly, we refuse the application for leave to appeal against sentence.