HKSAR v. OTIENO MILLICENT AKOTH

CACC 317/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 317 OF 2016

(ON APPEAL FROM HCCC 145 OF 2016)

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

_________________________

REASONS FOR JUDGMENT

_________________________

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

1.  On 18 March 2016, the applicant pleaded guilty in the Eastern Magistracy to a sole count of trafficking unlawfully in a dangerous drug, namely 1.07 kg kilogrammes of a solid containing 544 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was committed to the Court of First Instance for sentence and on 30 May 2016 she appeared before Deputy High Court Judge Woo (“the judge”) and was sentenced to 12 years and 4 months’ imprisonment.

2.  On the same day the prosecution applied pursuant to section 56(1) of the Dangerous Drugs Ordinance, Cap 134 for the forfeiture of US$4,008, that had been seized from the applicant’s person at the time of her arrest.  At the time of the application the applicant’s counsel informed the judge that he had no objection to it.  The judge thereupon granted the application in the terms sought. 

3.  By way of a notice (Form XI) filed on 13 October 2016, the applicant sought leave out of time to appeal against the order forfeiting the US$4,008 seized from her.

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

The background to the offence

5.  The Summary of Facts that was admitted by the applicant and used for the purpose of her sentencing revealed that she arrived at the Hong Kong International Airport on 4 October 2015 having flown from Burundi via Addis Ababa.  Although a personal and baggage search proved negative, she was suspected of internal concealment and was sent to North Lantau Hospital.  It was confirmed that foreign objects were present in her body cavity and she was transferred to Queen Elizabeth Hospital where she subsequently discharged 100 pellets. 

6.  The pellets were later confirmed to contain 1.07 kilogrammes of a solid containing 544 grammes of cocaine.  The estimated retail value of the cocaine was HK$1,140,620.

7.  A quantity of Unites States of America currency in the amount US$4,008 was seized from the applicant.

8.  The applicant stated in a later interview that she swallowed the pellets in Burundi and she knew they contained dangerous drugs.  She said she had done so because she was in need of money to support her family and had received US$4,000 as a reward for trafficking the drugs to Hong Kong from the man who had given her the drugs to swallow.  She also said that after she arrived in Hong Kong she was to travel to the Mainland by herself, by train or by bus.

9.  Travel movement records showed that the applicant last came to Hong Kong on 27 August 2015 and stayed until 8 September 2015.  The applicant’s passport contained a Mainland visa which permitted her to enter the Mainland before 5 November 2015 and to stay there for 30 days.  She was scheduled to fly back to Burundi on 14 October 2015.

10.  The applicant admitted and accepted that she was trafficking in dangerous drugs.

The mitigation

11.  The judge was informed by the applicant’s counsel that the applicant was a 37-year-old widow who had 3 daughters aged between 14 and 16 and was of clear record.  She had come to Hong Kong on 27 August 2015 to try to find work as a kindergarten teacher.  She had trafficked in the drugs in order to earn US$4,000 to support her children, one of whom needed money for medical treatment. 

12.  Counsel handed to the judge the mitigation letters written by the applicant, her brother, and her daughter, asking for leniency.  He told the judge that the applicant was remorseful and had expressed a willingness to assist the authorities and give evidence against the mastermind of the drug trafficking syndicate.  Furthermore, the applicant had actively participated in Father John Wotherspoon’s anti-drug trafficking campaign and this was evidenced by a letter from him. 

The judge’s Reasons for Sentence

13.  The judge noted that the appropriate initial starting point for this quantity of cocaine should be 18 years and 7 months’ imprisonment but he said he would reduce it to 18 years and 6 months to reflect the applicant’s clear record, her active participation in Father Wotherspoon’s campaign, and to show leniency for her children’s sake.  This figure he then enhanced by one year to take account of the aggravating feature of the international element.

14.  The applicant was finally sentenced to 12 years and 4 months’ imprisonment after the one-third reduction for her guilty plea.

The forfeiture order

15.  As is usual, at the conclusion of the sentencing hearing the prosecutor applied for disposition orders in respect of the exhibits.  This was done by a written application dated 21 April 2016 in respect of 23 separate exhibits.  One of the exhibits was P17 which was the US$4,008 in currency that was seized from the applicant’s person. The order sought in respect of this exhibit was that it be forfeited. 

16.  The hearing of the prosecutor’s application was brief and the transcript of it is as follows:

“MR CHENG: My Lord, there is an application for disposal of exhibits.

COURT: Yes.

MR CHENG: I understand that my learned friend has taken instructions from his client and there is no objection to the application.

MR LEE: I confirm no objection.

COURT:  The exhibits in this case are to be disposed of in accordance with the proposals in the written application for disposal dated 21 April 2016.”

17.  As can be seen, there being no objection by the applicant’s counsel to the terms of the order sought, the judge made an order disposing of the exhibits in accordance with the prosecutor’s written application.  Consequently, in respect of exhibit P17, the US$4,008 seized from the applicant at the time of her arrest, the judge ordered that it be forfeited.

The application for an extension of time

18.  The applicant stated in her affirmation dated 12 October 2016 that the reason for lodging the application out of time was:

“…Because I waited for a long time to receive my money from the Custom Excise Department.”

19.  The application is some four and a half months out of time. Despite the fact that the applicant consented to the forfeiture order being made in respect of the US$4,008 it appears that after the hearing she did write to the Customs and Excise Department enquiring about the money.  She has not produced that letter to us but she did attach to her Form XI a reply to her letter and that reply is dated 20 September 2016 and refers to her letter dated 5 September 2016.  The author of the letter wrote:

“I refer to your enquiry about seized exhibit of a case handled by this department. I would like to inform you that we will handle the seized cash, ie US Dollar 4,008, in accordance with the Court Disposal Order, ie the cash will be forfeited.”

20.  Assuming she received the Customs and Excise letter a few days after 20 September then the delay between her receipt of that letter and her filing of the Form XI on 13 October is not that great.

21.  However, that begs the question of why there was a delay between the date of the forfeiture order, 30 May 2016, and the date of her letter to the Customs and Excise Department, 5 September 2016.  A partial explanation for the delay may lie in what took place between 30 May and 5 September 2016.

22.  It is clear from a copy of a document attached to her Form XI that the applicant gave a further statement to a Customs officer on 6 July 2016.  She has not placed the whole of that statement before us but the pages she has produced record statements by her in which she claimed that the part of her earlier record of interview about the money was not correct and that she now claimed the money was given to her by her previous employer, who owned a salon in Nairobi, so that the applicant could buy for this woman two new IPhones 6 Plus and a Dell laptop computer.  She said the name of this woman is Josephine Mwei.

23.  At the hearing of the application she attributed much of what had occurred to her poor English language skills.  The incorrect answers in her record of interview were due to her inability to properly understand what was said to her and to correctly respond to it.  She said she also had trouble properly communicating with her lawyers.

24.  In respect of what occurred at her sentencing hearing she complained that her court interpreter was from West Africa and she had trouble understanding his Swahili.  Consequently, she claimed, she did not realize that the money had been forfeited.  However, that would appear to contradict what she said she was told by her lawyer.  She said her lawyer told her that the prosecution had refused his request for return of the money because of her admission in her record of interview in respect of it.  Her lawyer then gave her a stark choice of mitigating for her or fighting for the money and she chose the former.

The respondent’s submissions on the application for an extension of time  

25.  Ms Janice Cheuk, Public Prosecutor, submitted on behalf of the respondent that the delay was quite substantial and there was no valid ground to justify an appeal out of time in any event.

Discussion

26.  Nothing the applicant wrote or said explains the delay between 30 May and 5 September.  However, the circumstances suggest she may have been waiting to file her Form XI until she had laid the factual groundwork for an appeal by her statement to a Customs and Excise officer on 6 July and her letter to that department on 5 September 2016.

27.  The applicant is seeking an indulgence from the court.  She bears an onus of placing before the court a satisfactory explanation so as to justify the court exercising its discretion in her favour.  An explanation will only be satisfactory if it reasonably explains the delay.  To reasonably explain the delay it must explain the whole of the delay and must do so credibly.  The applicant’s explanation for her delay in filing an application for leave to appeal does not address the whole of the delay and is not at all convincing.

28.  Consequently, we are not persuaded that the applicant has provided the court with a satisfactory explanation of her delay, and she is not, therefore, entitled to the indulgence she seeks.  

29.  Nevertheless, as is the practice of the Court of Appeal, we shall examine the merits of the proposed grounds of appeal so as to satisfy ourselves that by refusing the application for an extension of time we would not be shutting out a substantial and plainly arguable ground of appeal.[1]

The grounds of appeal

30.  The applicant appeared in person on the leave application.  She wrote in her Form XI, and in a letter filed on 8 February 2017, the following grounds in support of her appeal against the forfeiture order regarding the seized US$4,008:

(i) the money seized belonged to her employer, Josephine Mwei of Nairobi, who gave her the money and asked her to buy two iPhone 6 Plus and a Dell laptop computer;

(ii) she was tense and confused when questioned in the hospital ward;

(iii) she subsequently gave another statement on 6 July 2016 correcting the source of the money;

(iv) she was worried about the safety of her children and how she would survive after being released from prison if she had this debt; and

(v) she could not concentrate on her work in the prison and would like to seek help from the court to return the money to its owner.

The respondent’s submissions

31.  On the merits of the application, Ms Cheuk submitted that the applicant was legally represented at the hearing before the judge when the prosecution made the application for orders for the disposal of exhibits, and the defence counsel raised no objection.  

32.  Furthermore, the applicant had admitted that:

(a) she received US$ 4,000 as reward from the person who gave her the drugs to swallow; and

(b) she needed money for her child’s operation. 

33.  In view of the above, and given that there was no documentary proof to support the applicant’s claim and that the claim was never raised at the hearing, the respondent submitted that the applicant’s assertion was clearly an afterthought.

Discussion

34.  As there can only be one appeal against sentence, and as all elements of the applicant’s sentence are before us, we have considered the sentence of imprisonment imposed upon the applicant notwithstanding that no complaint is made in respect of it.  We are satisfied that, given the circumstances of this offence, the sentence is a just one.

35.  The appeal against the forfeiture order is on the assumption that, as a matter of law, the order that was made in respect of the US$4,008 is part of the applicant’s sentence.

36.  For a forfeiture order to be part of an offender’s sentence it must be within the definition of “sentence” in the Criminal Procedure Ordinance, Cap 221.  Section 80 of that ordinance contains the following definition of sentence:

“’sentence’ in relation to an offence, includes any order made by a court in dealing with an offender, including a hospital order.”

37.  If the applicant was asking us to quash the forfeiture order and return the money to her then she would not be disputing that the order was one made in dealing with her.  But she is not. She is saying that it is not her money but is the money of another.  This raises the question of whether this court would have jurisdiction to hear her application as an application for leave to appeal her sentence. 

38.  If persuaded there was merit in her application and that in making the order the judge proceeded on an erroneous factual basis then it seems to us that we would have jurisdiction to quash the order.  However, whether we would have jurisdiction to then replace it with our own order in favour of the person the applicant says is the true owner of the money is far more questionable.  This is because we are not dealing with a civil appeal from the forfeiture order but a criminal appeal against sentence.  Should we determine that the money does not belong to the applicant and, therefore, is not part of her sentence, then the question would arise of whether we had jurisdiction to deal further with the matter or would, instead, have to order that the application be re-adjudicated.

39.  However, the initial question for us is whether the applicant has a substantial and plainly arguable ground of appeal in her contention that the judge had proceeded on an erroneous factual basis in ordering the forfeiture of the US$4,008.

40.  We can emphatically say that she does not.  The judge had before him the transcript of the applicant’s record of interview.  That contained a clear and unequivocal admission that US$4,000 was given to the applicant by her recruiter as a reward for her trafficking the drugs to Hong Kong.

41.  Additionally, the judge had the statement by the prosecutor in making the application and that statement has two elements to it, namely:

(i) the applicant’s counsel has taken instructions from the applicant in respect of the application, the terms of which are contained in a written document; and

(ii) as a consequence of the instructions he has received the applicant’s counsel has no objection to each of the orders sought in respect of every exhibit as set out in the written application.

42.  The applicant’s counsel then confirmed that to be so.

43.  The subsequent attempt by the applicant to resile from this position in a statement to a Customs officer on 6 July 2016 is simply not believable.  Nor are her assertions in respect of her English language skills and how they are responsible for all that happened.  It has all the hallmarks of an after-the-event attempt by her to salvage some benefit from her crime.

44.  We are satisfied that there is no merit in the applicant’s proposed grounds of appeal.  

Conclusion

45.  For these reasons we refused the application for an extension of time in which to give Notice of Application for Leave to Appeal against sentence.

[1] See R v Wong Kai Kong & Anor [1990] 1 HKC 279