HKSAR v. BORGES MORAES ROSANA

CACC 179/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 179 OF 2014

(ON APPEAL FROM HCCC 131 OF 2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1.  On 21 March 2014 the applicant pleaded guilty in the Magistracy to one count of trafficking in a dangerous drug, namely 1,598.33 grammes of a powder containing 370.44 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and was committed to the High Court for sentence. On 19 May 2014, the applicant was sentenced by High Court Judge V Bokhary (“the judge”) to 10 years’ imprisonment.

2.  On 28 May 2014, the applicant filed a Notice of Application for Leave to Appeal against sentence (Form XI).  After being refused legal aid on 25 July 2014, the applicant filed a Notice of Abandonment on 31 July 2014, stating in a document attached to the Notice that “after consideration, I decided to withdraw my appeal (sentence)”.  Upon receiving the Notice of Abandonment the applicant’s application for leave to appeal her sentence was, on 1 August 2014, marked dismissed.

3.  However, over two years later, on 26 August 2016, the applicant filed an affirmation in which she said she wanted “to activate my appeal against sentence”.  This request we dealt with as an application by the applicant to treat the earlier abandonment of her appeal as a nullity.

4.  At the hearing of this application we refused it and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The background facts to the offence

5.  The Summary of Facts admitted by the applicant and used for the purpose of her sentencing revealed that she arrived at Hong Kong International Airport from Brazil via Doha on 17 September 2013.  At the Customs Arrival Hall the applicant was intercepted for customs inspection and upon searching her suitcase the Customs Officer found one metal gear and nine metal rods contained in paper boxes.  The Customs Officer used an electric drill to pierce through the metal gear and one of the metal rods and discovered that they contained a substance which tested positive for cocaine. 

6.  The applicant was thereupon arrested and under caution she claimed that she did not know what the spare parts were.  She said that her husband gave them to her in Brazil and asked her to bring them to someone in Hong Kong for whom she had no means of contact.  She did not expect to receive any reward.  At the time of her arrest she was in possession of US$618 and a notebook.

7.  The eight other metal rods were broken open and found to also contain suspected cocaine.  A test of the seized substances found in the metal gear and the nine metal rods later confirmed that it was a total of 1,598.33 grammes of a powder containing 370.44 grammes of cocaine.  The estimated street value of the seized dangerous drug was HK$1,740,581.37.

8.  In a subsequent cautioned video record of interview, the applicant admitted that she lived with her boyfriend and three children in Suriname.  She sometime sold clothing and earned an average US$800 per month.  She had debts totalling US$2,200.  On or about 3 September 2013, she was approached by an unknown male in Suriname with a job offer and as she was in need of money she left her contact details with him.  The next day she was contacted by a person called Jeffrey who gave her an air ticket to fly to Sao Paulo, Brazil.  She reached Sao Paulo on 5 September 2013.  In Sao Paulo, Jeffrey gave her the metal gear and nine metal rods and told her that a kilogramme of drugs was hidden in them. 

9.  The applicant was to deliver the drugs to Hong Kong and in return US$10,000 would be given to her.  She said half of this amount was to be given to her in Hong Kong and she would receive the other half after she returned to Brazil.  However, she had already received US$200 as an advance part payment and she had used this money to support her children.  She claimed that about half of the US$618 found in her possession had been given to her by Jeffrey for her expenses in Hong Kong.

10.  The plan was that she would contact Jeffrey upon her arrival in Hong Kong and Jeffrey would then contact a man to meet her at her hotel.  She did not have the contact details for the person who was to come to her hotel. 

The mitigation

11.  Mrs Lisa Remedios, counsel for the applicant at the sentencing hearing, informed the court that the applicant was 25 years old at the time of her sentence.  She was a Brazilian national living in Suriname with her boyfriend and three children.  She was a part-time mining worker and garment seller with a clear record, earning about US$800 a month.

12.  The applicant handed a letter to the judge in which she expressed remorse for her actions.  She also explained that her husband had been killed in a car accident on 27 March 2012 when she was pregnant with her last child.  Mrs Remedios told the court that the applicant committed the present offence after being kicked out by her mother-in-law following her husband’s fatal traffic accident. 

13.  Mrs Remedios acknowledged that the quantity of dangerous drug in which the applicant trafficked would place the applicant in the bracket of 12 to 15 years’ imprisonment[1] and that the starting point adopted within this range should then be enhanced to allow for the fact that the drug was imported into Hong Kong.

The judge’s Reasons for Sentence

14.  Having considered the quantity of the dangerous drug involved and the mitigation advanced on behalf of the applicant, the judge stated that she would adopt a starting point of 14 years and 6 months’ imprisonment.  The judge further took into consideration the international element and enhanced the starting point by 6 months to 15 years’ imprisonment. She then reduced this period by one-third to allow for the applicant’s guilty plea, thereby arriving at a final sentence of 10 years’ imprisonment.

The application to treat the abandonment of the appeal as a nullity

15.  In her affirmation of 26 August 2016 by which she sought to “activate” her appeal against sentence, the applicant explained her reasons for seeking to do so.  She said it was because, after seeing other lesser sentences imposed on her fellow inmates who were involved in a similar quantity of dangerous drugs, she thought that her sentence was excessive.  She did not, however, refer to any specific case in support of her claim of a disparity with the sentences of other traffickers.  Furthermore, her mother was looking after her three children but she was ill and unable to work and so there was no one to take care of them.  She ended her affirmation by saying she would write to the court to explain her position in detail and asking the court to consider her request. 

16.  The applicant did, in fact, write a letter to the High Court which was received on 10 January 2017.  In this letter she said:

“I intended to appeal my sentence immediate following conviction but was discouraged by fellow inmates that it would come to no good and may even lead to a higher sentence. However, the situation at home gets worse each time I keep in touch with them and I feel it is my obligation to appeal.”

17.  At the hearing of her application the applicantexplained that immediately after her sentence she found it difficult to communicate with others as she knew little English and there were few Portuguese speaking prisoners.  She said she received conflicting advice on the merits of her sentence from fellow prisoners and did not know what to do.  However, now that she has a greater knowledge of English she is in a better position to pursue her appeal.

The grounds of appeal

18.  In a statement attached to her Form XI, the applicant stated that her sentence was “very long in years” and she asked the court to consider the age of her three children which were only 5, 2 and 1 years old.

19.  In her letter filed on 10 January 2017, the applicant further elaborated on her family situation which she put forward as a humanitarian ground.  She said that she raised her children single-handedly and was the sole breadwinner of the family.  The applicant’s mother was not legally allowed to work in Suriname and so the burden of earning money to support the family fell entirely on the applicant.  Being away from home, the applicant’s mother had no source of income and had to move with the children from place to place seeking shelter.  The applicant worried that her situation would lead to her children having to work at an early age and could even lead them into prostitution if she could not be at home for them. 

20.  As to the reason why she succumbed to drug trafficking, the applicant explained that she was under financial pressure and was in need of money to repay a “friend” who had helped her to take care of her daughter.  In those desperate circumstances the applicant was approached by someone who offered to involve her in drug trafficking. 

21.  The applicant also referred to her participation in a campaign to prevent other people being lured into international drug trafficking that was being run by Father Wotherspoon.  In a letter dated 6 November 2016 Father Wotherspoon confirmed that the applicant had, together with another inmate in Lai Chi Kok Reception Centre, provided details about their recruiter in Suriname and these details had been passed on to USA authorities with a view to deterring more drug mules from transporting drugs to Hong Kong. 

The respondent’s submissions

22.  The respondent submitted that the applicant had failed to satisfy the ‘nullity test’ and to show that her decision to abandon her previous application for leave to appeal was not a deliberate and informed decision.  The applicant stated in her letter that she abandoned her appeal because she “was discouraged by fellow inmates that it would come to no good and may even lead to a higher sentence.”  From this it is apparent that the applicant must have been aware of what she was doing by signing the Notice and her decision to abandon her appeal must have been a deliberate and informed one. In addition, there was a time gap of more than two years between her abandonment and the current application.  The assertion that she became aware of some other traffickers who had received a lesser sentence indicated that she was simply having second thoughts about the merits of appealing.

23.  The respondent also addressed the various matters raised by the applicant but as the merits of the applicant’s complaints only fall for consideration by the court once it becomes seized of jurisdiction by determining that the abandonment is a nullity we shall not set out the respondent’s reply to them.   

Discussion

24.  In legal terms the applicant can only “activate” her appeal by asking this court to treat her abandonment of it as a nullity.  As a consequence of her abandonment the Court of Appeal is functus officio and until such time as this court finds that her abandonment is a nullity it has no jurisdiction to hear her appeal.[2]  In order to find that her abandonment is a nullity the court must be satisfied that the abandonment was not the result of a deliberate and informed decision ie that the applicant’s mind did not go with the act of abandonment.  To this end the court looks to whether the applicant knew the nature and effect of the Notice of Abandonment that she was signing.[3] 

25.  Filing the Notice because the appellant believes his appeal has little chance of succeeding, even if that belief is erroneous, is not a basis for finding the abandonment was a nullity.  This is because the belief of the appellant does not go to his understanding of the nature and effect of the document he is signing.[4]

26.  The burden of persuading the Court of Appeal that the act of the applicant abandoning his appeal should be treated as a nullity falls on the applicant.  He discharges this burden by adducing credible evidence which satisfies the nullity test. 

27.  However, the court will start from the common sense position that in most cases a person signing an important legal document by which he throws away his right of appeal will be aware of what he is doing.[5] 

28.  Relevant to the credibility of any explanation is the delay that has elapsed between the filing of the Notice of Abandonment and the application to treat it as a nullity.  The longer the delay the harder it will be for an applicant to establish that he is not simply having second thoughts about the merits of appealing.

29.  Here the applicant waited just over two years to apply to treat her abandonment as a nullity.  Her abandonment followed a refusal by the Director of Legal Aid to grant her legal aid to appeal her sentence.  This decision by the Director, being a merits based decision, was a signal to the applicant that the Director was of the view that her application for leave to appeal her sentence was lacking in merit. 

30.  These facts, together with the applicant’s explanation for filing the Notice of Abandonment show quite clearly that the applicant well knew the nature and effect of the Notice of Abandonment that she signed and that by it she intended to abandon all proceedings relating to her appeal.  Nothing she has said before us today suggests otherwise.  Indeed what she has said both in her January 2017 letter and before us today confirms that her decision was both a considered and informed one. Her decision to try and revive her application is based entirely upon humanitarian considerations arising from the increasingly desperate plight of her family and not because she can demonstrate any error by the judge. 

31.  There is no merit in her application to treat her Notice of Abandonment as a nullity.  That being so we have no jurisdiction to hear her application for leave to appeal.

Conclusion

32.  For these reasons we refused the applicant’s application to treat the abandonment of her appeal as a nullity.