HKSAR v. KILIMA YUSUPH ABBAS

CACC 391/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 391 OF 2014

(ON APPEAL FROM HCCC NO 35 OF 2013)

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REASONS FOR JUDGMENT

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

1.  The applicant was the defendant in HCCC 35/2013 of the consolidated sentencing proceedings below. Following his plea of guilty at the Eastern Magistrates’ Court to a charge of unlawfully trafficking in a dangerous drug, namely 970.57 grammes of a solid containing 492.16 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the applicant was committed to the High Court for sentence where, on 6 June 2013, he appeared before Deputy Judge Lugar-Mawson (“the judge”) and was sentenced to 9 years’ imprisonment.

2.  By way of a Form XI, together with an affirmation dated 12 November 2014, both filed on 13 November 2014, the applicant applied for leave to appeal against his sentence out of time “on the basis of further assistance made to the Customs”[1]. On 3 August 2015, the applicant filed a Notice of Abandonment of his leave application, which was formally dismissed on the same day, pursuant to rule 39 of the Criminal Appeal Rules, Cap 221 sub. leg. A.

3.  On 11 November 2016, the applicant filed an affirmation dated 10 November 2016, seeking to revive his leave application by treating his earlier abandonment as a nullity.  He averred that his mind did not go with the act of abandonment.  Indeed, he wrote, inter alia:

“I clearly know that I have applied for cancellation of my appeal against my sentence in case number HCCC 35/2013. However, I now want to re-apply for appeal.”

4.  In a mention hearing on 22 February 2017, at which the applicant appeared in person, Cheung CJHC directed that the matter be set down for hearing.

5.  However, prior to fixing the date of the hearing before this Court, both the applicant and the respondent were invited to advise the Court on the following preliminary matters:

(a) The applicant was required to explain why his previous abandonment was not the result of a deliberate and informed decision.  However, the Court has received no response from the applicant.

(b) The respondent was asked to indicate its position as to the value of the applicant’s purported assistance to the authorities.  The respondent subsequently advised that such information as the applicant provided to the authorities in Hong Kong was of no value at all; the respondent was nevertheless unable to ascertain the value of his purported assistance to the authorities in Tanzania[2].

6.  At the hearing of this matter on 10 November 2017, we refused the application to treat the abandonment of the applicant’s appeal as a nullity and dismissed his appeal, indicating that we would give our reasons in due course.  These are our reasons.

Facts admitted by the applicant

7.  On 23 August 2012, the applicant, a Tanzanian national, arrived at Hong Kong International Airport on a flight from Dubai.  He was intercepted for Customs clearance.  Upon a search of his baggage, 69 packages containing suspected dangerous drugs were found secreted within a pair of shoes and socks, contained in a green fabric bag.  The applicant was arrested and cautioned, whereupon he said “[It] is not mine.  My friend gives me”.

8.  Whilst in the airport, the applicant willingly participated in a controlled delivery in the Arrivals Hall of the Airport, which led to the successful arrest of a Ms Bwanga Amina Khamis (who was the other defendant in the consolidated sentencing proceedings below.  She was subsequently charged with conspiring to trafficking in a dangerous drug, a charge to which she later pleaded guilty).

9.  The applicant was then sent to Queen Elizabeth Hospital, where a medical examination confirmed the presence of foreign objects within his body.  The applicant discharged a further 8 packets, making an overall total of 77 packages in his possession, containing what was subsequently confirmed to be heroin hydrochloride, the subject matter of the charge.  The estimated retail value of the dangerous drugs in question, at the time of seizure, was HK$814,308.13.

10.  In a subsequent record of review, the applicant admitted, inter alia, that:

(a) He came to Hong Kong to do some shopping and deliver the dangerous drugs, which he had received from a male called Shabani;

(b) He had swallowed 9 packets of dangerous drug and secreted the other packets in his shoes and socks before placing them in his suitcase;

(c) He knew that he was carrying dangerous drugs but did not know what kind of drug he was carrying.

(d) Shabani had arranged his trip to Hong Kong and had instructed him to locate an African woman at the Airport called Belinda, who would take him to a hotel where he was to make delivery of the dangerous drugs.  Thereafter, he would receive a reward of US$4,500.

Mitigation

11.  The applicant had received education up to University level in the United Kingdom but was unemployed at the time of the offence.  It was submitted on his behalf that he was “a mere mule” in the commission of the offence.  Furthermore, he had participated in a controlled delivery operation, which had turned out to be successful.

12.  In relation to other purported culprits who were connected to the offence, counsel submitted:

“It was through his girlfriend that he met a lady called “Tino”(?)[3], or his ex-girlfriend, and she told him that she could introduce him to somebody called “Shabani”(?). You’ll see the name mentioned in his -- the non-prejudicial statement and indeed in his interview under caution, and she told him that “he would be able to offer me a well-paid job” while he waited for the results of the job interviews that he was going through at that stage to try and get himself another job consistent with his own qualifications.”

Reasons for sentence

13.  Having noted the relevant sentencing guidelines in respect of unlawful trafficking in heroin hydrochloride, and bearing in mind the aggravating feature that the applicant had brought the dangerous drugs across the border into Hong Kong, the judge arrived at a notional sentence after trial of 18 years’ imprisonment.

14.  The judge noted that the applicant had pleaded guilty and assisted the Customs and Excise Department in participating in a controlled delivery operation, which had resulted in the arrest of Ms Bwanga, who eventually pleaded guilty to conspiracy to traffic in dangerous drugs.  The judge accordingly gave the applicant a 50% discount on his sentence, resulting in a sentence of 9 years’ imprisonment.

Reasons for the abandonment

15.  In his affirmation dated 10 November 2016, filed on 11 November 2016, the applicant explained why he had earlier abandoned his leave application.  He said, inter alia:

“Sorry, my intention and my mind was not in the act of abandoning my appeal was only because of being refused legal representative from Legal Aid Department and Hong Kong Bar Association and also lack of evidence to support my ground of appeal in which now I have full evidence to support my appeal…”

He has given the same explanation to this Court on being asked to explain why he had abandoned his appeal.

16.  In applying to treat his abandonment as a nullity, the applicant stated, in the same affirmation:

“Please I would like to re-apply for appeal against my sentence (out of time) on the ground of further cooperations I made to Customs and Excise Department in Hong Kong which there is successful arrest of my two bosses …”

It seems clear from this affirmation that his original decision to abandon his appeal on 3 August 2015 was a deliberate and informed one, principally as a result of the legal advice he received. Moreover, the subsequent application to treat his abandonment as a nullity arises from the further assistance he claims to have given to the authorities.

Grounds of appeal

17.  The thrust of his application to be allowed to reopen his appeal before this Court, having earlier abandoned it, is that he has allegedly provided further assistance to the authorities, leading to the successful arrests of Shikuba and Christina.

Fresh evidence

18.  The applicant has submitted various letters and documents to the Court concerning his purported assistance to the authorities. On 16 May 2017, copies of the relevant documents were directed to be returned to him, advising him of the procedures with which he had to comply in order to seek to adduce fresh evidence on appeal.

19.  On 12 June 2017, the applicant filed a “Notice of Originating Motion”[4] dated 2 June 2017, together with his affirmation dated 2 June 2017, attaching five letters written by him as well as other documents.  The contents of the five letters are detailed below.

20.  In a 3‑page letter dated 16 June 2015, the applicant stated that he understood that his 50% reduction of the notional sentence after trial acknowledged his co‑operation on the day of his arrest. However, he had thereafter provided information to the Customs & Excise Department by writing two letters to Inspector Fu Yi Crystal (“Inspector Fu”), one dated 25 November 2012 and the other dated 1 December 2012, which had led to the arrest of “two bosses” in 2014[5]. He said he had the proof of their arrests, which he was ready to reveal to the Court at the hearing[6].

(a) In the 25 November 2012 letter to Inspector Fu, the applicant said that he did not know Ms Bwanga until the date of the offence, but nevertheless, while remanded in Lai Chi Kok Reception Centre, he had met “some Tanzanian guy” who told him that Ms Bwanga had been working for two other people (presumably in relation to something illegal).  The name of the first person, who was said to be Ms Bwanga’s boyfriend as well as the “big boss”, was given, as was the name of the second person.  The applicant also gave a specific address in the Mainland where the “big boss” could be found.

(b) In the 1 December 2012 letter to Inspector Fu, the applicant said that he had been told by a follow prisoner in Lai Chi Kok Reception Centre that Shikuba had imported 100 kilogrammes of dangerous drugs from Brazil into Hong Kong by ship.  No other details were provided.

21.  In his 3‑page letter dated 22 February 2017, the applicant said the “two bosses” who were allegedly arrested as a result of the information provided by him were Christina, also known as Tina, and Shikuba.

22.  In his 4‑page letter dated 23 February 2017, the applicant explained that the arrests of the “two bosses” mentioned had taken place in Tanzania, not in Hong Kong.  He re‑iterated that he would produce proof of their arrests at the appeal hearing.  He also referred to the sentence passed upon a fellow prisoner called Paes Martinho Alessander, whose purported assistance to the authorities did not result in any successful arrest, but who had nevertheless been given a further significant discount on his sentence because of his “genuine desire” to assist the authorities[7].  In addition, the applicant stated that he had applied to serve his remaining sentence in Tanzania.  He had also written to the Chief Executive to have his sentence commuted pursuant to Article 48(12) of the Basic Law.

23.  The other documents attached to his affirmation dated 2 June 2017 comprise the following:

(a) A “Notice of consideration of deportation” dated 28 February 2014, issued by the Immigration Department, attaching an explanatory note which he signed.  In the Notice, the applicant was informed that the Immigration Department was considering applying for a deportation order against him, under section 20(1)(a) of the Immigration Ordinance, Cap 115.  He was invited to make representations in opposition within 7 days.

(b) Letters from the Security Bureau dated 17 January 2014 and 25 August 2014 respectively, and letters from the Private Secretary to the Chief Executive dated 15 August 2014 and 16 September 2015 respectively.  In gist, those letters concern the applicant’s application for transfer to Tanzania to continue serving his sentence, made under the Transfer of Sentenced Persons Ordinance, Cap 513.  He was informed that in the absence of any relevant bilateral agreement between the HKSAR and the Government of Tanzania, his application required the consent of all parties.  The most updated position, as stated in the 25 August 2014 letter from the Security Bureau, was that the consent of the Tanzanian authorities was pending.  He would be informed of the application result in due course.

(c) A mitigation letter written by Fr John Wotherspoon dated 3 March 2017, attaching two online news articles, and one newspaper cutting.  In the letter, it was asserted that the applicant had provided information to the Tanzanian authorities, which was used by the anti‑narcotics agency in Tanzania in a successful operation against two of the country’s biggest drug dealers – Shikuba and Christina – who had been arrested.

24.  In a further letter dated 1 September 2017, the applicant said that he did not intend to challenge the sentence of 9 years’ imprisonment; he merely urged the Court to consider the post-sentence assistance he had given to the authorities.  He also invited us to consider his time spent in prison, his good behaviour and his family circumstances.

Respondent’s submissions

25.  Mr Edward Brook, on behalf of the respondent, submits that the applicant has the onus of satisfying the Court that he has given valuable post-sentence assistance.  Credit should only be given for genuine cooperation, which leads to the furnishing of reliable and useful information.  Offenders who simply tell the authorities what the authorities already know about drug dealers, or who give information which is vague or relates to other alleged offenders who are safely outside the jurisdiction, should not expect to receive any reduction in their sentences.

26.  He contends that the information given by the applicant was either too vague or was allegedly provided to a foreign jurisdiction in circumstances to which the Customs and Excise Department were not privy.  He said the respondent was not in a position to know whether the applicant’s alleged assistance had anything to do with any arrests in Tanzania: certainly there has been no request to receive information or evidence from the applicant in Hong Kong by the Tanzanian authorities.  Mr Brook also submits that there exist no special circumstances for this Court now to afford the applicant a greater discount than the 50% discount he has already received.

27.  Further, Mr Brook objects to the motion to treat the earlier abandonment of his application for leave to appeal against sentence (which was itself made 17 months out of time) as a nullity.  He submits that there must be some finality to the appeal process, the facts giving rise the original offence having occurred as long ago as August 2012.  If an applicant believes he has rendered useful assistance to a foreign authority after his case has been disposed of, which he considers is worthy of further consideration, he may always petition the Chief Executive.

Consideration

28.  The applicant was sentenced for this offence on 6 June 2013, well over 4 years ago.  He did not decide to appeal against his sentence until 12 November 2014, by which time he was more than 17 months out of time.  He subsequently abandoned his appeal on 3 August 2015, but then sought to treat his abandonment as a nullity and resuscitate his appeal on 10 November 2016, some 15 months after he had abandoned it.  The result of this protracted chronology is that we are now asked to deal with an applicant, whose offence was committed on 23 August 2012, more than 5 years ago.

29.  We agree with Mr Brook that there must be some finality to the criminal process.  That is only fair to defendants and appellants, who are entitled to have their trials and appeals dealt with without undue delay; to witnesses, who are expected to remember events with reasonable facility; to the community, which requires justice to be done according to law; and to the courts, to whom the community looks to perform that function with efficiency and expedition.  It must be remembered that for every applicant who does not comply with the prescribed time limits but takes up the time of this Court with an unmeritorious application long after the proper determination of his case, there is another applicant who has abided by the prescribed time limits and is patiently awaiting his turn in the Court list to make what may be a meritorious application.  As Yeung JA (as he then was) cautioned in HKSAR v T[8]:

“12. Although a defendant was sentenced on the materials before the court at the time of sentence, the sentencing process did not stop until the appellate court finally dealt with it.

13. On the other hand, for the sake of finality, events that occur after sentence should not normally lead to the re-opening of sentence, otherwise cases may keep coming back to court because of new or changed circumstances, thus creating an extra burden on the already strained judicial resources, and possibly undermining the solemnity and respectability of sentences imposed by the court.”

30.  The judgment of the Court in R v Mak Chan Pui[9] is instructive in the present case.  There the applicant had applied for leave to appeal against his sentence within the prescribed time limit.  Some 9 months later, he abandoned his appeal, following notification to him that his application for legal aid had been refused.  Twenty-eight months later, he applied to treat that abandonment as a nullity on the grounds of assistance he had rendered to the authorities following his abandonment.  The Court, which comprised two future permanent members and one non-permanent member of the Court of Final Appeal, held:

“As this Court has said on a number of occasions when assistance is given to the prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition HE the Governor and not to seek further leave to appeal to this Court. That course is still open to this applicant. There are no grounds upon which this Court ought to allow this application which is refused.” (Emphasis supplied)

We respectfully agree.  It may be noted that in Mak Chan Pui, the appellant had, subsequent to the abandonment of his own appeal against sentence, given evidence for the prosecution “against the mastermind in this series of offences”.  Yet the Court made clear that “the proper procedure” in such circumstances was for him to petition HE the Governor (now the Chief Executive).

31.  There is no basis on which we should entertain this application to treat the applicant’s abandonment as a nullity, he having formally abandoned his appeal following legal advice.  The applicant has been asked by the Court to explain how his mind did not go with his act of abandonment and he has provided no valid explanation, either in writing before the hearing or orally before us.  In any event, the chronology to which we have referred belies such an explanation.  However, even assuming for the sake of argument that there had been subsequent assistance given by the applicant, which had led to arrests in a foreign country, that would not justify this application to treat an earlier abandonment of his appeal against sentence as a nullity.

32.  That is not to say, assuming a necessary link could be established between the assistance given and the arrests, notwithstanding that there has been no conviction and the applicant is not obviously a witness at any trial, that the applicant has no avenue open to him after his appeal has been disposed of: it is simply to emphasise that the function of the Court has ceased.  If the applicant believes he should receive further recognition for such assistance as he has given, the proper procedure is for him to petition the Chief Executive.

33.  In any event, this Court is not in a position to accept the applicant’s claims to have rendered further assistance by causing arrests to be made in a foreign country, to which claimed assistance the respondent is not privy.

34.  For the sake of completeness, there can be no complaint about the notional sentence after trial in this case, nor the generous discount which the applicant was afforded for his assistance to the authorities prior to sentence.  Indeed, the applicant makes no complaint about the mathematics of his sentence.

35.  For these reasons, the application was refused.