HKSAR v. NATUHUMUZA MILDRED

CACC 29/20 14

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 29 OF 2014

(ON APPEAL FROM HCCC NO 368 OF 2011)

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BETWEEN

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Hon Chu JA (giving the Reasons for Judgment of the Court):

1.  This is an application for leave to appeal against sentence out of time. On 23 November 2011, the applicant pleaded guilty in the Court of First Instance before M Poon J (“the Judge”) to one charge of trafficking in a dangerous drug, namely, 380 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. She was sentenced to 10 years and 4 months’ imprisonment.

2.  On 24 January 2014, the applicant filed a notice of application to seek leave to appeal against sentence out of time.  The applicant was out of time by 26 months.

3.  After hearing the applicant, we dismissed the application and said we would give our reasons in writing, which we now do.

4.  The summary of facts admitted by the applicant shows that on 3 March 2011, the applicant, who is a holder of Ugandan passport, arrived in Hong Kong International Airport from Entebbe via Addis Ababa, with Shekou of the Mainland as her final destination.  The applicant was intercepted for Customs clearance. The dangerous drug in question was found in a secret compartment of her check-in baggage.  The applicant admitted under caution that she was given the baggage, the air ticket and US$200 as travelling expenses by a person, and she was delivering the baggage to another person in the Mainland.

5.  The applicant was aged 25 at the time of sentencing and had a clear criminal record in Hong Kong and Uganda. She has been diagnosed to be HIV positive.  In mitigation, it was said that she committed the offence in order to meet the medical expenses.

6.  The Judge considered a starting point in the band of 12 to 15 years was appropriate for trafficking in heroin weighing between 200 and 400 grammes. The Judge stated that the act of importation of dangerous drug into Hong Kong was an aggravating factor in the commission of the offence.

7.  The Judge adopted 15½ years as the starting point and reduced it by one-third on account of the applicant’s guilty plea.  She did not accept the applicant’s health condition to be such as to warrant a further discount to the sentence.  She therefore imposed a sentence of 10 years and 4 months’ imprisonment.

8.  In her affirmation in support of her present application, the applicant referred to the case of HKSAR v. Mbwana Nice Sadi (unreported) HCCC 294/2013 in which the judge took a “total starting point” of 14 years’ imprisonment and the defendant was sentenced, after plea, to 9 years 4 months’ imprisonment for trafficking in 420 grammes of heroin, by way of a importation as a courier into Hong Kong.  The applicant explained that it was after she learnt of the case that she decided to appeal against sentence out of time.

9.  In her letter to the court dated 2 May 2014, the applicant put forward two main reasons for her appeal.  The first is that her health has deteriorated. The second is that there is a disparity between her sentence and the sentence passed in the case of Mbwana Nice Sadi.

10.  The applicant’s application is 26 months out of time.  The delay is substantial.  In HKSAR v. Medina & Another (unreported) CACC 296/2007, 31 January 2012, at para.12, the Court of Appeal reiterated that:

“In considering whether leave should be given to appeal out of time, we look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the application for extension of time. We would also look at the ground of the proposed appeal to see whether, by refusing leave to appeal, we were not shutting out a substantial and plainly arguable ground of appeal. Substantial grounds must be shown for the delay before we would grant indulgence, and the longer the delay, the more onerous is the duty of the applicant.”

11.  The applicant’s explanation for the delay is not a satisfactory one.  It is well established that a disparity in sentences imposed on different defendants by different judges on different occasions for the same offence is not, in itself, a ground for the appellate court to interfere, if the sentence is otherwise appropriate having regard to the nature of the offence and to the offender himself: see HKSAR v. Cheng Sau Yuk [2012] 5 HKLRD 415 at para.22.  The issue is whether the sentence passed on the applicant is a proper one.

12.  According to the guidelines in R v. Lau Tak Ming & Others [1990] 2 HKLR 370, trafficking in 200 to 400 grammes will attract a sentence of 12 to 15 years’ imprisonment.  The authorities have established that the importation of dangerous drug into Hong Kong is an aggravating factor that justifies an enhancement in the sentence: see HKSAR v. Abdallah Anwar Abbas [2009] 2 HKLRD 437 and HKSAR v. Hong Chang Chi [2002] 1 HKLRD 486.

13.  The heroin hydrochloride in question weighed 380 grammes. This together with the international element in the case justify the 15½ years starting point adopted by the Judge.  A one-third discount was properly given for the applicant’s plea of guilty.  As to the applicant’s health condition, the Judge considered that although the applicant is HIV positive, her illness is neither life-threatening nor will affect her life expectancy, thus does not warrant a further discount.  We see no ground to disturb the Judge’s decision.  In our view, the sentence imposed by the Judge is a proper one. 

14.  We further observe that in Mbwana Nice Sadi, although the judge acknowledged in sentencing that the 420 grammes of heroin in which the defendant had trafficked fell in the bracket of 15 to 20 years’ imprisonment provided for in the guidelines, the judge said that he dropped her “down into the bracket below”.  It appears that he did so having regard to the fact that the amount in which the defendant had trafficked fell at the bottom end of the range of sentence in the upper bracket and to reflect in the fact that she was a courier only.  Although he said he did so “without doing any violence to the guidelines”, it is not apparent from his reasons for sentence how he determined the starting point to be 13½ years’ imprisonment, which sentence he increased by 6 months’ imprisonment to reflect the aggravating factor of the international element.

15.  The proposed appeal has no merits.  Accordingly, we dismissed the application for leave to appeal against sentence out of time.