HKSAR v. LUIS DOS SANTOS

CACC 132/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 132 OF 2010

(ON APPEAL FROM HCCC 38 OF 2010)

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REASONS FOR JUDGMENT

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

1.  Following his plea of guilty before a magistrate on 5 February 2010, the applicant was convicted of a single count of trafficking in 919.86 grammes of a mixture containing 510.47 grammes of heroin hydrochloride and 137.37 grammes of monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was committed to the Court of First Instance of the High Court for sentence. On 25 March 2010 he was sentenced by Saw J (“the judge”) to 14 years’ imprisonment.

2.  On 13 April 2010, the applicant filed a Notice of Application fo Leave to Appeal in respect of his sentence (Form XI).  After being refused legal aid on 3 June 2010 the applicant filed a Notice of Abandonment on 23 August 2010 and his appeal was thereupon marked dismissed. 

3.  However, on 1 March 2016 the applicant filed an affirmation seeking to treat his previous abandonment as a nullity and to revive his application for leave to appeal against sentence. 

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 admitted by the applicant for the purpose of his sentencing revealed that he arrived at Hong Kong International Airport as an incoming passenger from Nepal on 14 September 2009.  He went through the “Nothing-to-declare” channel at Arrival Hall B of the Hong Kong International Airport for customs clearance. The applicant was intercepted by Customs Officers as he looked very nervous. As internal concealment was suspected, the applicant was sent to Queen Elizabeth Hospital for medical examination.  At about 1300 hours of the same day, a medical officer at the hospital retrieved a pellet of dangerous drug from the applicant’s anus.  The applicant was then arrested and cautioned in response to which he remained silent.  

6.  Within the next few days, the applicant discharged a total of 66 pellets of dangerous drug.  The Government Chemist later confirmed that the retrieved pellets consisted a total of 919.86 grammes of a mixture containing 510.47 grammes of heroin and 137.37 grammes of monoacetylmorphine hydrochloride.  The street value of the dangerous drug was assessed as being HK$768,083.10.

7.  On 15 September 2009, a record of interview was conducted with the applicant.  Under caution, the applicant admitted that he had obtained the pellets from a man called “Onyi” in Nepal, and he had trafficked them to Hong Kong for a promised reward of US$4,000 which he expected to receive on delivery of the dangerous drug to Mirador Mansion, Tsim Sha Tsui. 

The mitigation

8.  The applicant was 28 years old at the time of his sentence and was originally from Guinea-Bissau, Africa.  Mr Chau, counsel for the applicant at the sentencing hearing, explained to the court that the reason for the applicant committing the offence was financial hardship and the need to raise funds to pay for medical treatment for his youngest sister who was suffering from cancer.

9.  Mr Chau accepted that for the purpose of sentencing, no distinction should be made between the two salts of esters of morphine and the appropriate approach to sentencing was to add up the quantities of the two salts of esters of morphine and apply the appropriate sentencing guideline from the Court of Appeal to determine the correct starting point.  Mr Chau also accepted that the only mitigation in the case was the applicant’s guilty plea at the earliest opportunity.

10.  The judge indicated to Mr Chau that he was contemplating a starting point, after enhancement for the international element, of 21 years’ imprisonment. To this indication Mr Chau responded:

“Well, if I can put it this way, I think a starting point of 21 years would be unappealable.”

The Reasons for Sentence

11.  The judge considered that for the purpose of sentencing, no distinction should be made between the two salts of esters of morphine, and therefore the quantity of the danergous drug for the purposes of sentencing amounted to 647.84 grammes.  The judge noted that the quantity exceeded the cut off point for sentence after trial recommended in R v Lau Tak-ming & others[1] and so he adopted the guidelines set out in HKSAR v Abdallah[2] where it was held that when the amount of heroin was between 600 and 1200 grammes, a starting point range of from 20 to 23 years after trial was appropriate.

12.  However, as the quantity of dangerous drug in the present case was just over 600 grammes, the judge considered it unnecessary to adopt a starting point in excess of 20 years but he enhanced the starting point for 1 year to reflect the “international element” in the applicant’s drug trafficking.  The judge noted that there was nothing in the circumstances of the commission of the offence which would justify any discount greater than the usual one-third discount.  Granting the applicant this discount he reduced the starting point of 21 years by one-third and sentenced the applicant to 14 years’ imprisonment.

The application to treat his abandonment as a nullity

13.  In his application for leave to appeal sentence dated 9 April 2010 the applicant referred to his family’s circumstances, namely the deaths of his parents, his youngest sister suffering from cancer and the need for money to finance her treatment.  He expressed remorse and complained that some other people who had been arrested for trafficking in a greater quantity of drugs than he, had received a sentence less than his.

14.  The applicant applied for legal aid but this was refused on 3 June 2010 and then on 23 August 2010 he filed his Notice of Abandonment.

15.  Nothing then happened until 10 February 2016 when the applicant wrote to the court.  In this letter he complained that the starting point adopted by the judge in sentencing him was too high and referred to two cases to demonstrate that courts had adopted lower starting points for cases involving greater quantities of drugs.  He said:

“I now wish to appeal against my sentence specifically for the part attributable to the international element.”

16.  By letter dated 19 February 2016 the applicant was informed of a direction by Master Tam of the High Court that if he wished to restore his application for leave to appeal his sentence he had to explain by way of affirmation why his Notice of Abandonment should be treated as a nullity.  This he did and his affirmation is dated 1 March 2016.

17.  In that affirmation, the applicant explained that the reason he abandoned his application for leave to appeal was because even though he started gathering information on starting points for drug traffickers:

“I wasn’t able to received (sic) the grounds needed for my appeal then, due to the prison environment I am in.”

He went on to explain that it was only in 2015 that he discovered from conversations with other inmates that in some cases of cross-border drug trafficking enhancements of only 6 months had been given for the international element for quantities of narcotic similar to the amount in his case.  He again referred to the same two cases he had mentioned in his letter of 10 February 2016, a copy of which he annexed to his affirmation.  It was this realization, he said, that “led to my request to restore my application for leave to appeal against sentence with the reason to present to the Court of Appeal some cases which are similar like mine, and they all received lesser sentence than me.”

18.  The applicant wrote to the court on 2 May 2016 but in that letter only focussed on his cooperation with the Customs and Excise Department.  He again wrote to the court on 16 May 2016 but in that letter only raised matters relevant to his complaints in respect of his sentence.

19.  The applicant next wrote to the court on 11 July 2016 and in this document the applicant sought to explain why he “cancelled my previous application” and also set out his “Perfected Grounds of Appeal”.  He said in June 2016 he received news that his mother was seriously ill in hospital and his sister had been involved in an accident.  The applicant claimed that he was worried about his mother’s and sister’s medical condition and was depressed.  On 5 June 2016 he spoke to the welfare officer in the prison who asked him what he, the welfare officer, could do for him.  He described how he responded to the welfare officers’ enquiry as follows:

“I told him that I have received some grounds for my appeal and that was the reason I wished to restore my application but I was sick and was lacking concentration to continue. I told him that I wished to abandon my application but he said the application cannot be abandoned but can only be cancelled. I was deeply worried for the survival of my love ones and I wasn’t thinking straight, and I cancelled the application.”

20.  Later in this document the applicant claimed that his mother died on 11 June 2016 from a stomach ulcer whilst waiting to undergo a second operation.

21.  At the hearing of the application the applicant said that in the early stage after conviction he intended to appeal but that he was discouraged by staff of the Legal Aid Department from doing so and that is why he did not appeal.  However, whilst serving his sentence he learned that other inmates sentenced for conduct similar to his had been punished more leniently.

The grounds of appeal against sentence

22.  This court does not consider the merits of grounds of appeal until it has resolved the question of whether the Notice of Abandonment should be treated as a nullity.  Suffice it to say at this stage that the applicant complains about the amount of enhancement, namely 1 year, adopted by the judge for the international element and asserts that he provided information to Customs Officers in respect of the identity of the person for whom he trafficked these drugs and of the use of persons of Guinea-Bissau nationality travelling through different Asian countries to traffic in dangerous drugs.

The respondent’s submission

23.  In her written submission for the respondent, Ms Winnie Mok, Senior Public Prosecutor, submitted that in determining whether or not the abandonment can be treated as a nullity, the court must be satisfied that the abandonment was not the result of a deliberate and informed decision and referred the court to relevant authorities.  Ms Mok noted that some of the assertions provided by the applicant were contradictory.  For example in his Form XI he said his mother died giving birth to his younger sister but in his document of 11 July 2016 he said his mother died of a stomach ulcer on 11 June 2016.  She submitted that the explanations provided by the applicant are not credible and, in any event, do not constitute evidence of facts that would satisfy the nullity test.  Nothing had been advanced by the applicant that suggested in any way that the abandonment was other than an informed act. 

24.  Ms Mok also noted that there is a 6 year gap between the filing of the Notice of Abandonment and the application to treat the abandonment as a nullity and this lengthy delay, she submitted, was relevant to the credibility of any explanation the applicant might advance in respect of his state of mind at the time he signed and filed the Notice of Abandonment.  The longer the delay, the more likely it is that the applicant is in the category of a person simply having second thoughts about the merits of appealing.  The respondent argued that in these circumstances the applicant had failed to establish that his abandonment was a nullity and his application to treat it as such should be refused. 

Discussion

25.  The legal principles relating to an application to treat an abandonment as a nullity are now well settled.  In a nutshell they are:

(i)   Upon abandonment, an appeal is dismissed and the Court of Appeal becomes functus officio.  The Court of Appeal thereafter has no jurisdiction until the abandonment is set aside.

(ii)   The abandonment could only be set aside and the jurisdiction of the Court of Appeal revived if the Court of Appeal determined that the abandonment should be treated as a nullity.

(iii)   The abandonment would only be treated as a nullity if the Court of Appeal is 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.  The focus was on whether the applicant knew the nature and effect of the Notice of Abandonment he was signing.

(iv)   Where an applicant signed a Notice of Abandonment because of incorrect legal advice as to the prospects of success on appeal, the Notice would not be declared a nullity.  This was because wrong advice as to the merits of an appeal was not advice that went to the nature or to the signing of the Notice of Abandonment.

(v)   The burden was on the applicant to provide credible evidence of facts that would satisfy the nullity test.[3]

26.  Here the Notice of Abandonment was filed almost 6 years ago.  In all his correspondence with the court the applicant has at no stage adverted to his state of mind at the time of signing the Notice or what he believed its effect would be or what he believed its impact would be on the exercise by him at any later stage of his right of appeal.  All that he has said points to him abandoning his right of appeal in response to legal advice on the merits of his appeal and subsequently becoming aware of grounds which he thought might enable him to achieve a reduction in his sentence. 

27.  Furthermore, the long delay in the applicant applying to set aside his abandonment only confirms in our mind that this is simply a case of a person having second thoughts about the merits of appealing.

28.  The applicant has not discharged the burden that he bears to put forward any explanation which satisfies the nullity test.

Conclusion

29.  There being no basis for concluding that the applicant’s abandonment was not the result of a deliberate and informed decision, we refused the application.