HKSAR v. FRANK FRANK THOMASI

CACC 192/2015

CRIMINAL APPEAL NO 192 OF 2015

(ON APPEAL FROM HCCC 306 OF 2012)

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REASONS FOR JUDGMENT
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Hon Poon JA (giving the Reasons for Judgment of the Court) :

Introduction

1.  On 7 November 2012, the applicant appeared before Toh J and pleaded guilty to a single charge of trafficking in 0.80 kilogramme of a mixture containing 0.47 kilogramme of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The Judge convicted the applicant as charged and after hearing mitigation, sentenced him to 11 years and 4 months’ imprisonment.

2.  The applicant now seeks leave to appeal against sentence out of time.

3.  On 12 November 2015, after hearing the applicant and the respondent, we dismissed his application.  These are the reasons for our judgment.

Facts

4.  According to the admitted facts, the applicant arrived at Hong Kong International Airport from Dar Es Salaam via Doha on 28 February 2012.  As internal concealment was suspected, he was sent to Queen Elizabeth Hospital (“QMH”) for medical examination.  At 2230 hours on the same day, a medical officer attached to the A&E Department of QMH confirmed the presence of foreign objects inside the applicant’s body.  The applicant was then arrested and cautioned.  Upon caution, he admitted that he had swallowed around 80 pellets but claimed that he did not know what they contained.  He further said that he had swallowed the pellets in Johannesburg and did not know where to deliver the pellets but someone would instruct him.  During his detention at QMH, he discharged a total of 63 pellets on 16 occasions consisting of a total of 0.80 kilogramme of a mixture containing 0.47 kilogramme of heroin hydrochloride.  The street value of the dangerous drug was estimated at $620,800.00.

Mitigation

5.  At the time of sentence, the applicant was 33 years old and had a clear record. He is married with a daughter and a son.  He committed the offence out of financial difficulty.  He was the sole breadwinner for his family and was financially supporting his aged parents and young siblings.  He ran a small business at a local market selling second-hand shoes.  As he had suffered from an eye problem which had developed in the last seven years into a degenerative state, he was also tempted to smuggle drugs into Hong Kong in order to fund his eye operation.  He was offered US$6,000.00 as reward which he had not yet received.  He was not the mastermind.  The applicant’s counsel invited the court to adopt the lower end of the sentencing tariff.

Reasons for sentence

6.  Having considered the quantity of the dangerous drugs involved and the mitigation put forward on behalf of the applicant, the judge stated, rightly in our view, the appropriate starting point to be 16 years’ imprisonment.  The judge further took into consideration the international element and enhanced the starting point by 1 year to 17 years’ imprisonment.  She then reduced it by a full one-third discount to 11 years and 4 months’ imprisonment given the applicant’s guilty plea.

Present application

7.  On 11 June 2015, the applicant filed a notice of application for leave to appeal against sentence out of time (Form XI).  By then, he was already about 2 years and 6 months out of time.  In his affirmation, the applicant stated that the reason for his appeal being delayed was that following a conversation with his fellow inmates, he came to find out that the part of his sentence relating to the “international element” was excessive.

8.  In his written submissions dated 4 September 2015, the applicant reiterated that he is genuinely remorseful and that his family is suffering from acute hardship.  He went on to say that he was told by his fellow inmates that the judge had wrongly enhanced the sentence for the international element.  He relied on two cases at first instance in which his fellow inmates were involved, namely HKSAR v Abood Yasser Ali, HCCC 543/2013, unreported, 3 March 2014; and HKSAR v Mohamed Abdulraheem Sadiq Hussein, HCCC 544/2013, unreported, 3 March 2014.  In those two cases, the quantities of heroin hydrochloride involved were 470 grammes and 477 grammes respectively, which were similar to that involved in his case.  But the same sentencing judge (Line J) only enhanced the sentence by six months for the international element.  The applicant therefore contended that the one year enhancement adopted by Toh J here was manifestly excessive.

9.  In his oral submissions before us, the applicant told us that he had serious eye problems.  He had been sent to QMH for six times but the doctors were unable to cure his eye problems.  He cannot read or watch the television.  The applicant also told us that his family and young children are suffering because he is now imprisoned in Hong Kong.  He wants to go home as soon as possible.  So the applicant urged us to be as lenient as possible.

Discussion

10.  In determining whether to allow an application for leave to appeal out of time, the court needs to consider :

(1) the length of the delay;

(2) the reasons for the delay; and

(3) the merits of the appeal,

while always bearing in mind that the court should be careful in not shutting out a substantial and plainly arguable ground of appeal by refraining to grant leave to appeal out of time.  See R v Wong Kai Kung [1990] 1 HKC 279, per Silke VP at pp 280H - 281C.

11.  Here, the applicant was two years and six months out of time when he took out the present application.  The delay is on any view very substantial.  However, the only explanation given by the applicant for the delay is that he recently learned of the two cases above, which suggested that the enhancement for cases involving similar quantities of dangerous drugs on account of the international element should only be six months, as opposed to the one year imposed on him by Toh J.  We do not consider that to be a valid excuse for the inordinate delay. The applicant is effectively pleading ignorance of the law.  But ignorance of the law is seldom a valid reason for failure to take prompt action in processing one’s case in our legal system.

12.  More importantly, we fail to see any merit in the applicant’s intended appeal.

13.  In HKSAR v Chung Ping-Kun, CACC 85/2014, unreported, 2 July 2014, Cheung JA at [19] laid down broad guidelines for the level of enhancement on account of the international element by reference to the quantity of drugs involved as follows:

(1) Up to 250 grammes	6 months
(2) Between 250 and 500 grammes	6 months to 1 year
(3) Between 500 and 1,000 grammes	1 year to 2 years

As recently reiterated by this Court in HKSAR v Zhou Sailin, CACC 72/2017, unreported, 9 December 2014, per Lunn VP at [15] to [19], the enhancement is a deterrent against unlawful trafficking of dangerous drugs into and outside Hong Kong.  We would add that the sentencing policy for enhancement aims at protecting Hong Kong’s integrity and international reputation as a hub city in the region.

14.  Applying the above guidelines, cases involving quantities of drugs near the top end of category (2), like the two cases before Line J and the present case before Toh J, would ordinarily attract an enhancement of one year or at most slightly less than one year.  In the absence of any sufficient justification, the six months’ enhancement adopted by Line J was out of line with the sentencing guidelines and policy underpinning enhancement as a deterrent against international trafficking into or outside Hong Kong.  Such departure from the sentencing guidelines for no good reason risks sowing inconsistency of approach into that sentencing policy and engendering feelings by other defendants involved in trafficking in similar quantities of drugs that they may have been dealt with harshly by judges who have properly and faithfully applied the guidelines.  It might also spawn unmeritorious applications for leave to appeal or even applications for leave to appeal well out of time, as in the present one.  Such unjustifiable departures from the sentencing guidelines should be avoided.

15.  In imposing the one year enhancement on the applicant, Toh J was faithfully applying the guidelines laid down by this Court.  She was entirely correct in so doing and there was no reason to justify any departure from those guidelines. We can see no reason to disturb the one year’s enhancement that she had adopted.

16.  Turning to the applicant’s medical problems and family difficulty, while we have sympathy for him on a human level, this Court has said time and again that save in the rarest circumstances these considerations will count for little or nothing with serious offences of unlawful trafficking in dangerous drugs into and outside Hong Kong.  The courts cannot be deflected by such considerations from applying the law firmly and consistently.  See HKSAR v Salvador Dias, CACC 44/2015, unreported, 18 June 2015, per Macrae JA at [16] and [17].

Conclusion

17.  For the above reasons, we dismissed the applicant’s application for leave to appeal against sentence out of time.