HKSAR v. MWENKALLEY SALIM NASSORO

CACC 87/2021

[2021] HKCA 1458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 87 OF 2021

(ON APPEAL FROM HCCC NO 305 OF 2020)

____________________

____________________

__________________________________

R E A S O N S  F O R  J U D G M E N T

__________________________________

1.  This was an application for leave to appeal against sentence which I found was totally devoid of merit and accordingly I refused leave. Because of the nature and circumstances of the application, I entertained consideration as to whether a loss of time order should be made against the applicant. On this issue, I reserved judgment. I now set out my reasons for judgment in refusing the leave application and judgment in ordering loss of time of four weeks.

2.  On 21 December 2019, the applicant, a Tanzanian national, arrived at Hong Kong Airport on an international flight that originated from Entebbe, Uganda.  He was in transit and was booked to travel by ferry to Macau.  However, he was stopped at Customs clearance on suspicion that he had dangerous drugs concealed inside his body.  He was medically examined and it was discovered that he had in his body cavity 70 pellets of cocaine, consisting of a total quantity of 884 grammes of a solid containing 762 grammes of cocaine.  He admitted under caution that the substances inside his body were cocaine and that he consumed the pellets containing cocaine for a reward of US$5,000.

3.  On 30 March 2021, having pleaded guilty to trafficking in the drugs, the applicant was sentenced to 14 years and 10 months’ imprisonment.  The judge in sentencing the applicant applied the relevant sentencing guidelines and gave him a full one third discount for his timely plea of guilty.

4.  The applicant completed a notice of application for leave to appeal against sentence (Form XI) dated 20 April 2021, in which he also stated he was applying for legal aid.  The applicant stated that the basis of his appeal against sentence was that he had been already punished by the authorities in refusing him to enter Hong Kong and by arresting and charging him for this offence instead of deporting him.  He complained that he should have been given a discount to his sentence, which was overlooked by both his lawyer and the judge.  He also complained that the sentence was manifestly excessive and wrong in principle.

5.  On 10 May 2021, the applicant was notified that his application for legal aid was refused. 

6.  On 9 June 2021, the court issued directions in respect of the forthcoming leave application, in which the applicant was notified that if he had retained a private lawyer he should ensure that appropriate notice was filed with the court, otherwise if he intended to proceed with the application on his own he was required to file grounds of appeal and a submission in writing within 14 days of the date of the letter. The respondent was also notified that it was required to file a written reply within 28 days from the date of the letter.

7.  On 23 June 2021, the leave application was set down for hearing on 29 September 2021, and accordingly the applicant was duly served with a notice of hearing.

8.  On 6 July 2021, the court received a hand written letter dated 25 June 2021 from the applicant, in which he said that “after considering all options” he had decided to withdraw his appeal against sentence.  The letter was sent via the post and the postage stamp was dated 3 July 2021.

9.  On 7 July 2021, the respondent filed a written submission together with relevant authorities in response to the applicant’s home-made grounds of appeal as set out in the notice of application for leave to appeal against sentence.

10.  On 9 July 2021, the court in response to the applicant’s letter dated 25 June 2021 made the following directions:

“‘(1) Contents of the applicant’s letter dated 25 June 2021 are noted. Should the applicant intend to abandon the leave application in respect of his sentence, he is required to file Form VII (“Notice of Abandonment”) with the court without delay. The sample Form VII is attached for your reference; and

(2)  On receipt of the applicant’s Notice of Abandonment, the leave application in respect of his sentence will be deemed dismissed under Rule 39 of the Criminal Appeal Rules, Cap. 221A.’

          Applicant be reminded to approach welfare officer for assistance.”

11.  There was no response to the court’s directions and a further letter dated 15 September 2021 was sent to the applicant conveying the following direction from the court:

“I refer to the letter dated 25 June 2021 in which you indicated your intention to withdraw your appeal against sentence. You were directed on 9 July 2021 that if you wished to abandon your appeal, you must do so by way of a Form VII (“Notice of Abandonment”).

The Court has not received a Form VII from you.  As the hearing is on 29 September 2021, do you still intend to abandon your application for leave to appeal against sentence?  If you do, you must file a Form VII as attached in this letter.

You are reminded that a single judge hearing a leave application can order loss of time under section 83W of Cap. 221, should an applicant fail to file a Form VII prior to the hearing.”

12.  There was also no response to this direction from the applicant.

13.  At the hearing of the leave application, the applicant appeared in person.  He was referred to his letter dated 25 June 2021, in which he stated he was withdrawing his appeal against sentence, and to the court’s directions, and he was asked why he did not file a notice of abandonment.  He initially said that he did not understand the court’s directions because they were in English.  After it was established that he had written the letter dated 25 June 2021, which was in English, he said he wrote the letter with the aid of a dictionary.  However, it was clear during the course of the hearing that the applicant had a reasonable level of proficiency in English and would have understood the directions that had been issued to him from the court about the requirement to file a notice of abandonment if he was not proceeding with his application for leave to appeal against sentence.  He then explained that he had changed his mind and wished to proceed with his leave application after he had spoken to the welfare officer on 20 or 25 September 2021.  He claimed the welfare officer told him that if he abandoned his leave application he could not apply again.  On hearing this, he changed his mind about withdrawing his leave application and wrote a letter dated 20 or 25 September 2021 to the court, in which he said he wished to continue with his leave application.  The letter had not been received by the court at the time of the hearing.

14.  The applicant produced at the hearing a handwritten document in English entitled Additional Grounds.  He argued that it was a mitigating factor that he was in transit and not intending to come to Hong Kong.  He said he had been refused entry and was forced to be dealt with in the jurisdiction.  He said he should have been deported.  He complained that he had been arrested and taken to hospital without appropriate authorisation.  He further complained about the prosecution’s submissions and the judge’s treatment of the fact that he had been refused entry into Hong Kong and that the previous cases before the court did not have this as a factor and his case was unprecedented. 

15.  From the grounds of appeal that the applicant advanced in the accompanying letter to the notice of leave to appeal against sentence and in the document entitled Additional Grounds, the applicant’s complaints can be summarised in the following terms.  First, the applicant had already been punished by being refused entry into Hong Kong and should have been deported, rather than convicted and sentenced in Hong Kong.  Secondly, the sentence was manifestly excessive in comparison with other similar cases.

16.  The fact that the applicant was in transit and refused entry into Hong Kong is not a mitigating factor.  The offence of unlawfully trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134, is justiciable against a person who imports a dangerous drug into Hong Kong even if in transit: Secretary for Justice v Lau Suk Han & Another [1998] 2 HKLRD 14.

17.  Defence counsel when presenting mitigation on behalf of the applicant at the sentencing hearing, submitted to the judge that the applicant wanted it known that when he was arrested at the airport he had an onward ticket to Macau and he had been refused entry into Hong Kong.  In the discussion that followed with the judge about this matter, defence counsel acknowledged, as appropriately as he could, given his instructions, that this was not a relevant consideration in respect of sentence.[1]

18.  The judge in her reasons for sentence noted that the applicant’s ultimate destination was Macau, which he never reached because he had been refused entry and arrested for the drugs that he had imported into Hong Kong.[2] She rightly gave no reduction to the applicant’s sentence for the fact that he was in transit and had been refused entry into Hong Kong.  The proposition that the applicant should have been deported instead of prosecuted in Hong Kong for the drugs that he was smuggling is preposterous.  The same applies with the proposition that this was a mitigating factor.

19.  The applicant’s reliance on this ground for a reduction to his sentence was not only misconceived but totally devoid of merit. He was not appealing his conviction, nor did he have any basis to do so.  He pleaded guilty to unlawfully trafficking in a dangerous drug at the transit lounge of the Hong Kong International Airport and agreed a summary of facts outlining the offence.

20.  The other complaint the applicant makes about his sentence is that he received a greater sentence in comparison with other similar cases.  The applicant provided no cases to make good his point.  He instead argued that other cases did not involve a defendant who had been refused entry into Hong Kong as was the situation in his case.  As already noted, this was not a mitigating factor that would warrant a reduction to the sentence.

21.  The judge applied the relevant sentencing guidelines when she sentenced the applicant.  She adopted the correct starting point of 20 years and 9 months’ imprisonment for the quantity of cocaine narcotic involved (HKSAR v Abdallah [2009] 2 HKLRD 347), which she enhanced by 1 year and 6 months for the international element (HKSAR v Chung Ping Kun [2014] 6 HKC 106).  She then reduced the notional starting point by one third for the applicant’s guilty plea to 14 years and 10 months’ imprisonment.  The resultant sentence imposed on the applicant by the judge was in accordance with the relevant sentencing guidelines.

22.  A Single Judge hearing a leave application to appeal is empowered to order loss of time pursuant to section 83W of the Criminal Procedure Ordinance, Cap 221.  See HKSAR v Kofi Frimpong, unrep., CACC 137/2020, 13 August 2021.

23.  When a convicted defendant embarks upon an appeal against conviction or sentence he commences legal proceedings that are governed by the statutory provisions and procedural rules under the relevant legislation.  An appeal is an important and formal set of proceedings with strict rules and procedures that are required to be complied with to ensure that appeal cases are properly and efficiently dealt with by the appellate courts.  It is incumbent on a convicted defendant who initiates an appeal, with or without legal assistance, to ensure that he complies with all the legal and procedural requirements and that he advances reasonably arguable grounds of appeal.  It needs to be stressed that this is not a game that a convicted defendant chances on embarking for the sake of it, for the grounds of appeal must be based on a sensible and informed appraisal of the evidence and the issues, and should be reasonably arguable in that they afford some real chance of success. 

24.  An appellate court has the power to order loss of time and this is in place for the very good reason of deterring unmeritorious applications and appeals, which would otherwise take up time that could be better spent on other cases.  While a degree of latitude is given to applicants in person, if the application is patently devoid of merit or frivolous, consideration will be given to a loss of time order.  Such cases can inflict serious injustice and undermine the criminal justice system by unnecessarily occupying valuable resources and impeding the expeditious disposal of other cases. Nothing of what has been said detracts from the fundamental importance of a person’s right to challenge the correctness of their conviction or sentence.

25.  The applicant was invited to address me on whether loss of time should be ordered.  He said he did not know the law and wanted a reduction in his sentence.  It was pointed out to the applicant that Note 3 in the Form XI, which he completed and duly signed, put him on notice of the court’s power to order loss of time. 

26.  The essence of the applicant’s complaint against his sentence was that he was in transit and had been refused entry into Hong Kong, but this was never a relevant factor that could legitimately be taken into account in his sentence.  This is the same argument that was presented on his behalf with some reluctance by his counsel in mitigation and rejected by the judge.  He was on notice that this was an unarguable point.  Furthermore, the grounds of appeal that he had set out in his original notice were repeated in the Additional Grounds, which essentially concerned that he had been arrested while in transit.  It was in respect of this matter that he had written to the court on 25 June 2021, seeking to withdraw his appeal against sentence.  It appears he changed his mind because if he abandoned his leave application he could not make the application again.

27.  I was satisfied that the applicant’s application for leave to appeal against his sentence was frivolous and I make an order that four weeks of the time he has spent in custody awaiting this hearing shall not be reckoned as part of the term of the sentence he is now serving.

28.  The applicant is reminded that if he wishes to renew his application for leave to appeal against sentence to the Court of Appeal, he should do so within 14 days.  He is also informed that the Court of Appeal has power to make a further order for loss of any time which he has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

[1]  Appeal Bundle, 10M-11H.

[2]  Appeal Bundle, 6P-7A.