HKSAR v. PAULO SILVA

CACC 140/2011

CRIMINAL APPEAL NO. 140 OF 2011

(ON APPEAL FROM HCCC NO. 430 OF 2010)

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

Background

1.  In the evening of 19 June 2010, the applicant who held a Guinean passport was intercepted at the airport when he entered Hong Kong from Bangkok. 

2.  He was then sent to the hospital for examination and observation.      In due course, he discharged from his body a total of 86 pellets containing suspected dangerous drugs. 

3.  The suspected dangerous drugs were subsequently confirmed by a Government chemist to be 1,266.11 grammes of a mixture containing 797.33 grammes of heroin hydrochloride and 177.83 grammes of monoacetylmorphine hydrochloride with an estimated retail value of HK$1,069,862.95 at the time.  Monoacetylmorphine hydrochloride has similar potency as heroin hydrochloride, and both are salts of esters of morphine.

4.  The applicant stated under caution that he was requested by a man in Bangkok to bring the pellets to Hong Kong for a reward of US$2,000. 

5.  The applicant pleaded guilty in the magistrate court to a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134).  He was committed to the High Court for sentence.  On 10 February 2011, he was sentenced by Wright J to 15 years and 4 months’ imprisonment.

6.  On 6 April 2011, the applicant applied for leave to appeal against sentence out of time.  In the grounds of appeal attached to his supporting affirmation, he claimed that the sentence he received was out of line with two other cases in which the defendants in similar circumstances received more lenient sentences.  He further claimed that,

‘ ..I left my appeal for long time, due to I haven’t got a ground for me to show or for me to prove as an evidence on my appeal.

I decide to continue now because I have gotten grounds to proceeds on my appeal…...’

7.  Subsequently, on 10 June 2011 a notice of abandonment (Form VII) was signed and filed by the applicant.  The application for leave to appeal against sentence out of time was dismissed on 13 June 2011.

8.  By an affirmation dated 3 July 2015, the applicant stated he decided to continue with his appeal against sentence out of time.  This is what he said :

‘ Well, I requested to the High Court In 2011 to grant me extension of time to give notice of Appeal against Sentence, the Legal Assistant refused to grant me lawyer, and my English was very poor to Stand my Self So, I disided to Study English Communication In Stanley Prison which I have Finished.

     Now, I disided to Continue with my Appeal against sentence becouse I Found out that the Sentence given to me was differend Compared to most other people who had traFFiking In Same or greater quantity of Drugs.’

9.  By a letter dated 28 September 2015, the applicant stated he would rely on two similar cases in support of his appeal.

10.  By a further letter dated 29 October 2015, he asked the Court to show mercy on him by a lesser sentence.

11.  By another letter dated 14 November 2015, the applicant stated :

‘ …when I signed the Notice of abandonment, I did not know that I was abandoning my application for leave to appeal.’

12.  He further relied on the two cases he had first referred to in his grounds of appeal attached to his affirmation dated 6 April 2011.

Treating abandonment as a nullity

13.  The present application is an application to treat the applicant’s previous abandonment of his appeal as a nullity. This Court has stated in HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1 that once an appeal was abandoned, and thus dismissed, the Court of Appeal has ceased its jurisdiction and has no inherent jurisdiction to permit an appeal to be reopened unless the abandonment be treated as nullity. The principle in that regard is that the application will only succeed if the abandonment was not the result of a deliberate and informed decision.  In other words, the mind of the applicant did not go with his act of abandonment.

14.  In the present case, the applicant said that he did not know he was abandoning his appeal when he signed the notice of abandonment.  Clearly, the Court is not required to accept this statement at its face value.  On the contrary, the Court is required to look at all the circumstances to see if that was the case.  In the first place, there is no doubt that the applicant was aware on 6 April 2011 that he was lodging an appeal out of time.  This was clear from the grounds of appeal he had prepared.  Then, he signed the notice of abandonment.  One may ask what was his intention when he signed that document?  In his affirmation dated 3 July 2015, he merely said legal assistance (which he meant to be legal aid) was refused and his English was poor to act for himself and he decided to study English in prison which he had since finished.  He certainly had not said expressly he merely wished to delay dealing with his appeal.  Even in his letter dated 14 November 2015, he merely said that he did not know he was abandoning his application when he signed the notice of abandonment.  Again he did not explain further as to why he chose to sign the document.  At the hearing before us, he said he was misled by the welfare officer of the prison who told him since he did not have a lawyer and did not know English, he should sign the notice of abandonment. 

15.  We are unable to accept what he said.  The fact that he did not have a lawyer and was not able to conduct the appeal himself does not mean he did not have the intention to abandon the appeal.  His original grounds of appeal belie his true intention.  The grounds of appeal were written by him in English.  In it he asked for extension of time to appeal because, unlike before, he had grounds then to proceed with the appeal by reference to the two cases he cited.  If he had the grounds of appeal ready, then the absence of legal representation and the competence of his English should not deter him from proceedings with the appeal.  Yet, he chose to abandon it.  This could only reasonably mean that he knew he was abandoning his appeal. 

16.  We are not satisfied that the applicant has properly made out a case for us to treat his abandonment as nullity.

Merits of the appeal

17.  This being the case, this Court does not need to consider the merits of his appeal against sentence.  It is sufficient for us to say that his sentence was properly imposed by reference to the guidelines.  The Judge below found it appropriate to add together the two quantities of drugs and the total was around 975 grammes.  Under the guidelines in HKSAR v Abdallah [2009] 2 HKC 197, the appropriate starting point for trafficking between 600 and 1200 grammes of narcotic would be 20 to 23 years’ imprisonment.  The Judge adopted a starting point of 22 years’ imprisonment after trial for the quantity of narcotic concerned.  He then enhanced that starting point by one year to reflect the international element of bringing the dangerous drugs across the border into Hong Kong resulting in the total sentence of 23 years’ imprisonment before discount.  The judge accorded the applicant a full one-third discount for his guilty plea, thus resulting in a sentence of 15 years and 4 months’ imprisonment.  The fact that other defendants in different cases might have received a lighter sentence is not a proper base to interfere with a sentence which is correct in the first place.  In any event, we are not satisfied that the cases he had cited revealed such a substantial disparity that requires us to interfere.  Those cases were different either by the quantity of drugs or because of the application of different guidelines at different times or because of the unique facts of the case.

18.  It is said that the applicant has rehabilitated during his time in prison and he now seeks mercy.  It has to be pointed out that trafficking in dangerous drugs, particularly of the quantity in this case, is a very serious offence and the Court is required to impose a deterrent sentence.  This objective will not be served if the sentence is to be further reduced afterwards by reason of his expressed remorse.

Conclusion

19.  Accordingly the application was refused.