HKSAR v. MATHEWS ROGERS RAPHAEL

CACC 41/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 41 OF 2016

(ON APPEAL FROM HCCC 267 OF 2015)

------------------------

_________________________

REASONS FOR JUDGMENT

_________________________

Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The applicant was committed to the High Court for sentence in respect of a single count of unlawfully trafficking in 441 grammes of heroin hydrochloride and 96.80 grammes of 6-monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  On 28 January 2016, following his conviction upon his confirmation of his plea earlier tendered at the Magistracy, he was sentenced by Barnes J (“the judge”) to 14 years and 3 months’ imprisonment.

3.  He subsequently filed an Application for Leave to Appeal against sentence but on 1 April 2016 he abandoned this application by filing a Notice of Abandonment.  On 12 December 2016, the applicant filed an affirmation seeking leave to treat his abandonment of his Application for Leave to Appeal as a nullity.    

The background to the offence

4.  The Summary of Facts which the applicant admitted for the purpose of his sentencing revealed that on 13 January 2015, the applicant, a Tanzanian national, arrived at Hong Kong International Airport on a flight from Dar Es Salaam via Addis Ababa.  When he was intercepted for Customs clearance at the Customs Arrival Hall he was suspected of having internal concealment and was sent to hospital. 

5.  At the hospital a medical examination was conducted which confirmed the presence of foreign objects inside his body.  The applicant subsequently discharged 80 pellets of dangerous drugs.  The drugs were confirmed to be the quantities of heroin hydrochloride and 6‑monoacetylmorphine hydrochloride as particularized in the charge.

6.  Upon being arrested and cautioned, the applicant admitted having swallowed drugs while he was in Tanzania and coming to Hong Kong with them concealed within his body.  He said he was to be paid a reward of US$3,500.

7.  In a subsequent record of interview, conducted in the presence of a Swahili interpreter, the applicant said, inter alia, that:

(a) he came to Hong Kong for the purposes of business and of importing the drugs into Hong Kong;

(b) he had obtained the drugs in question from a male the day before his departure from Dar Es Salaam;

(c) upon his arrival in Hong Kong, the agreed reward would be paid to him and someone would meet him at Chung King Mansion to collect the drugs from him; and

(d) he knew the type of drugs swallowed by him and that the quantity did not exceed 80 pellets, but he was not sure of the exact quantity.

8.  The total street value of the dangerous drugs concerned at the time of seizure was about HK$589,535.

The Newton hearing

9.  The applicant claimed that there existed special circumstances to warrant him receiving an additional sentence discount.  A Newton hearing was conducted into these special circumstances to ascertain whether the applicant was entitled to the sentencing discount that he claimed.  The judge found that he was not entitled to any additional discount of his sentence for this aspect of his mitigation.  In her ruling the judge analysed in some detail the evidence she had heard and she gave full reasons for why she rejected the claim made by the applicant.   

10.  Upon giving her ruling the judge raised with Mr J Marray, counsel for the applicant, the issue of whether she should reduce the one-third discount that the applicant would otherwise receive for his plea of guilty as a consequence of having failed in the Newton hearing to establish his contested claim to a further sentencing discount.  The judge noted that resolution of his unsuccessful claim had taken up two days of court time and required six witnesses to give evidence. 

11.  In response to this query the following exchange took place between the judge and Mr Marray:

“MR MARRAY: My Lady, I am aware of that, and the defendant is aware of that. He was informed before the hearing that he may not get his one-third discount should he fail.

COURT: Yes. So do you want to make a submission on that?

MR MARRAY: My Lady, it seems to me that it’s a matter of discretion for the court as to how much …

COURT: Yes.

MR MARRAY: I am trying to say that, if you look at as a whole, the court has got discretion as to how much discount to give, my Lady can give 20 per cent, can give 25 per cent.

COURT: Yes, yes.

MR MARRAY: So I’d ask the court to give a higher discount as possible to the defendant.”

The mitigation

12.  Mr Marray informed the judge that the applicant was 41 years of age and was married with three children aged 11, 8 and 2 respectively.  He had two brothers and two sisters, all of whom were in full-time education.  The applicant provided financial support for all his family members.  The judge also noted that the applicant had a clear record and committed the present offence due to the need to raise money to pay the medical fees for his children. 

13.  Mr Marray referred the judge to the guideline case of R v Lau Tak Ming & Ors[1] and the relevant sentencing tariff, as laid down in that case of 15-20 years’ imprisonment for 400-600 grammes of narcotic.  He also referred the judge to the relevant enhancement range of 1-2 years’ imprisonment to allow for the aggravating factor of the drugs being trafficked across international borders. 

14.  The applicant had written a letter to the judge in which he had expressed remorse and asked for leniency and Mr Marray referred the judge to it.  Mr Marray also referred the judge to a medical report on the applicant in order to give a full picture of the applicant’s health.  In response to a query from the judge, Mr Marray specifically disavowed reliance on the applicant’s medical condition as providing any basis for further reducing the applicant’s sentence.  

The judges’s Reasons for Sentence

15.  The judge referred to the sentencing authority of R v Lau Tak Ming & Ors where the Court of Appeal laid down a sentencing guideline of 12 to 15 years for trafficking in 200 grammes to 400 grammes of heroin hydrochloride. 

16.  Noting that 6-monoacetylmorphine had the same potency as heroin hydrochloride[2], the judge adopted a starting point of 18 years’ imprisonment and enhanced it by one year’ imprisonment to allow for the aggravating factor of the international element that was involved in the applicant’s trafficking .

17.  The judge then said:

“Normally, a defendant who had tendered a timely plea will be given a one-third discount. However, due to the special circumstances of the case, I am not giving the defendant the full one-third discount, but will give him a 25 per cent discount.

There are no other grounds to further reduce the sentence. A prisoner’s medical condition was not a matter to which the court could have regard for mitigation of a proper sentence, although it might well be a matter for the Executive if brought to their attention and deserving of consideration: that is the case of R v Ho Mei Lin.”

18.  The judge thereupon imposed on the applicant a sentence of 14 years and 3 months’ imprisonment.

The application to treat the abandonment as a nullity

19.  The applicant’s explanation for why he abandoned his appeal and his justification for why this court should treat his Notice of Abandonment of his Application for Leave to Appeal against sentence as a nullity was advanced first in a submission attached to his Notice of Abandonment.  In that submission he said:

“I cancel my appeal against my sentence because Legal Aid already refused my application to give me legal aid lawyer. So from now I cancel my appeal against my sentence.”

20.  Then, in an affirmation filed with the court on 12 December 2016, he stated that he had abandoned his application for leave to appeal against sentence on 1 April 2016 for two reasons:

“First, Legal aid did not guarantee if I was going to be represented by a lawyer during my appeal case. Secondly, I was in great shock, confused and could not have the ability to think after learning the excessive sentence that was imposed by your court.”

21.  At the hearing of the application the applicant said that when he received the Notice of Refusal of Legal Aid, dated 18 March 2016, he approached the Welfare Officer as he was not familiar with legal matters.  He said he was told by the Welfare Officer that he could not proceed with his appeal without legal representation and advised him to file a Notice of Abandonment. The Notes on the Notice of Abandonment were not interpreted to him.

22.  However, some six months later, after he had the opportunity to talk to other prisoners he came to realize that what the Welfare Officer had told him was wrong and that he could represent himself on his appeal.   

The grounds of appeal against sentence

23.  In his Notice of Application for Leave to Appeal against sentence (Form XI) filed with the court on 12 February 2016, the applicant stated that he ought to be entitled to a full one-third discount because he had pleaded guilty to the offence at the earliest opportunity. 

24.  In his affirmation filed with the court on 12 December 2016, he maintained his claim that he was entitled to a one-third discount.  He further referred to the Court of First Instance case of HKSAR v Mzee Soud Abdalla[3], where the defendant was sentenced by V Bokhary J to 13 years’ imprisonment after pleading guilty in the Magistrates’ Court to unlawfully importing into Hong Kong 0.54 kilogramme of heroin hydrochloride.  In that case the Bokhary J adopted a starting point of 18½ years’ imprisonment which she then enhanced by one year to allow for the international element.  The final starting point was therefore 19½ years’ imprisonment.  This compares with the applicant’s starting point of 19 years for his 537.80 grammes of narcotic.  But, of course, in the Mzee Soud Abdalla case the defendant was given the benefit of a full one-third discount for his plea of guilty, as a consequence of which his sentence ended up being lower than that imposed on this applicant.  

The respondent’s submissions

25.  Ms Sabra Lo, Senior Public Prosecutor, for the respondent, submitted that the applicant’s explanation for abandoning his appeal did not satisfy the nullity test.  In this respect she referred us to the relevant legal principles as set out in HKSAR v Law Kam Fai & Anor[4] and HKSAR v Borges Moraes Rosana[5].  Furthermore, she submitted, there was no merit in the grounds of appeal as the judge was perfectly entitled, in the circumstances, to reduce the amount of the discount she would award the applicant for his plea of guilty.  On this issue of legal principle, Ms Lo referred us to HKSAR v Chong Chee Meng[6].

Discussion

26.  The judge conducted a Newton hearing in which she heard evidence over the course of two days and at the end of which she delivered her ruling, saying that she disbelieved the applicant. It is important to appreciate that by her ruling the judge found that the applicant had lied in order to gain a sentencing discount to which he was not entitled.  Apart from being dissatisfied with the judge’s finding, the applicant has not been able to show that she erred in making it.  

27.  In these circumstances, there is nothing improper in the judge not awarding the applicant the full one-third discount for his guilty plea.[7]Her decision to reduce the one‑third discount is consistent with legal principle and established authority.  The amount by which she reduced it was a matter for her discretion and was certainly within the range of reductions for a failed Newton hearing.  Indeed, given her finding, the judge would have been perfectly entitled to reduce the discount further. 

28.  In this regard, it is interesting to note that in the latest Definitive Guideline on Reduction in Sentence for a Guilty Plea[8] issued by the Sentencing Council for England and Wales the reduction of the discount would have been much greater.  The relevant part of the Definitive Guideline states:

“F2. New Hearings and special reasons hearings

In circumstances where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved.  Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction.”

29.  Normally, in an application to treat a Notice of Abandonment as a nullity, the Court of Appeal does not look to the merits of the prospective grounds of appeal.[9]  We should emphasise that by our comments we are not intending to depart from that practice.  We only mention these matters as the applicant’s complaint is concerned solely with what took place in a Newton hearing and the consequence of that hearing being resolved adversely to him.  This involves important matters of legal principle and, as we have sought to demonstrate, the applicant can feel fortunate indeed that the judge did not reduce the discount for his plea of guilty below 25%. 

30.  The legal principles relating to an application to treat a Notice of Abandonment as a nullity are well settled.  An applicant faces the difficult hurdle of satisfying the Court of Appeal that his abandonment was not the result of a deliberate and informed decision ie that his mind did not go with his act of abandonment.

31.  To this end the court looks to whether the applicant knew the nature and effect of the Notice of Abandonment that he was signing.

32.  In order to satisfy that test the applicant has the burden of adducing credible evidence.

33.  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.

34.  The present applicant’s explanation in which he places the blame on the Welfare Officer is not credible.  The Court of Appeal is inundated with applications for leave to appeal by unrepresented applicants. In filing and pursuing these appeals assistance is regularly sought from the Welfare Officer.  Furthermore, we note that by the time the applicant filed his Notice of Abandonment he had been in the prison system for some 14 months.  It is simply not credible that in that time he had not become aware of the right of convicted persons to represent themselves.

35.  The applicant’s other explanations for why he abandoned his appeal do not satisfy the nullity test for they do not go to his awareness of the nature and effect of the document he was signing.  They go to explain his assessment of the chances of his appeal succeeding without a legal representative and to his mood and state of mind in relation his appeal.  It is clear that he knew full well what he was doing when he signed the Notice of Abandonment and knew full well what is the nature and effect of this document.

Conclusion

36.  For these reasons we refused the application to treat the Notice of Abandonment as a nullity.

[1] [1990] 2 HKLR 370

[2] The judge referred to HKSAR v Daresa Mariam Guma CACC 155/2012, unreported, 5 October 2012 on this issue.

[3] HCCC 92/2013, 25 April 2013.

[4] [2006] 2 HKLRD 879

[5] CACC 179/2014, unreported, 7 February 2017.

[6] [2008] 6 HKC 407

[7] For a discussion of the relevant legal principles, see HKSAR v Chong Chee Meng [2008] 6 HKC 407.

[8] Effective from 1 June 2017

[9] See the comments of Ma CJHC, as he then was, in HKSAR v Law Kam Fai & Anor [2006] 2 HKLRD 879 at 893I-J.