HKSAR v. OBI MARTINA NZUBECHUKWU

CAC C 48/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 2012

(ON APPEAL FROM HCCC NO. 271 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung Acting CJHC (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant (Obi Martina Nzubechukwu), a citizen of the Federal Republic of Nigeria, arrived at the Hong Kong International Airport from Nigeria via Cameroon.  She was intercepted and no contraband was found on her person.  However, Customs Officers searched her suitcase with the keys provided by her and found 2.95 kilogrammes of a crystal containing 2.91 kilogrammes of methamphetamine hydrochloride (“ice”) concealed in the false compartment of the suitcase.

2.  The applicant was charged with trafficking in the 2.91 kilogrammes of “ice”.  On 19 January 2012, the applicant pleaded guilty to the charge before Bokhary J (the judge) in the High Court and was sentenced to 17 years and 4 months’ imprisonment.  The judge adopted a starting point of 26 years and reduced it by one-third on account of the guilty plea.

3.  In sentencing the applicant, the judge did not refer to any sentencing guidelines and simply said:

“…These drugs were imported into Hong Kong. All things considered, I adopt a starting point of 24 years, and enhance it by 2 years, making a total of 26 years. Having taken into account everything urged upon me in mitigation on your behalf, there is really no real mitigation apart from your early plea of guilty for which I shall gave you the full one-third discount, reducing the sentence to one of 17 years and 4 months’ imprisonment.”

4.  The applicant sought leave to appeal against sentence and was represented by Mr P V Loughran who was assigned by the Director of Legal Aid to assist the court.  At the end of the hearing on 21 June 2013, we allowed the application.  Treating the application as the appeal proper, we allowed the appeal and reduced the applicant’s sentence to 16 years’ imprisonment.  We indicated that we would hand down our reasons in due course and this we now do.

The applicant’s background

5.  The applicant, aged 36, is single and had no criminal conviction in Hong Kong.  Her 78-year old father is a farmer and 62-year old mother is a housewife.  Very little was said on behalf of the applicant in mitigation by her counsel except her guilty plea and the fact that a long-term sentence would be difficult for the applicant when her parents are far away with no means of visiting her.

Grounds of Appeal

6.  In her letters to the court, the applicant said when she returns to Nigeria (either when she completes her sentence or when she is transferred to serve her sentence there), she would be charged a second time for the same offence with an additional charge of “Bringing the name of Nigeria into disrepute” and that she would be deemed guilty under Nigerian Law.  The suggestion was that she would be put in a “double jeopardy” situation.

7.  The applicant claimed that she has two children aged 10 and below who need her parental guidance, care and love.  She said her aged and sick parents were being threatened by people who she had borrowed money from to support her business which was destroyed in a “bomb-blast”.

8.  The applicant also emphasized that her health had deteriorated since her imprisonment and she needed an operation.

9.  The applicant said she came from a good family background with good education and had not committed any offence either in Hong Kong or in Nigeria.

10.  The applicant said she was sorry for what she did and asked for leniency.

Grounds of Appeal

11.  Mr Loughran pointed out the facts that there was a risk of the applicant being prosecuted again in Nigeria, although he fairly accepted that the question of double jeopardy should be left to possible later court proceedings.  Nevertheless, he suggested that the additional stress and anxiety to the applicant throughout her sentence in Hong Kong arising out of the question of double jeopardy merited a sentence reduction, albeit only to a limited extent.

Discussion

12.  Drug trafficking is a hideous crime and anyone who engages in such an evil business can expect no mercy from the court irrespective of his or her background and the reasons for committing the offence.  It is hoped that with such a firm and tough approach the offence of drug trafficking will be deterred.

13.  It will be many years before the applicant will return to Nigeria.  There is no clear evidence that the applicant will be prosecuted again and if she is indeed prosecuted, she no doubt will be entitled to raise the issue of double jeopardy in the Nigerian court.

14.  A court can only sentence a defendant on the basis of what is known and must leave out future uncertain events as Mr Paul Loughran had fairly conceded. (See the judgment of Stock VP in HKSAR v Sarkuna [2013] 1 HKLRD 17 and also the various cases referred thereto)

15.  In Ubamaka v Secretary for Security[2011] 1 HKLRD 359, it was said that there is conflicting evidence from the Nigerian Authorities about prosecutions and convictions of drug traffickers on their return to Nigeria.  Fok J (as he then was) rejected the suggestion of double jeopardy as a basis of resisting deportation and in his judgment said at para 153 to 155:

“It was submitted on behalf of the applicant that, despite the absence of any decision in which the common law principle against double jeopardy has been applied as a basis for resisting deportation, such conclusion would simply be a further iteration of the established principle that a man should not be tried twice for the same conduct.

I have no hesitation in rejecting that submission. The common law principle of double jeopardy is directed at the competence or fairness of the subsequent criminal proceedings, a matter exclusively for the domestic court,…

Further, it is well established that the principle of double jeopardy is not relevant to extradition proceedings and is instead a matter to be raised at trial in the foreign court…”

16.  The applicant’s suggestion that she will be charged again with the same offence and with an additional one when she returns to Nigeria is not a matter that we can have regard to at this stage and it is not a reason for reducing what is otherwise a proper sentence.

17.  We also agreed with the suggestion of Mr Tam Sze-lok Isaac, for the respondent that

“If during the applicant’s long incarceration, there should emerge a body of evidence or precedents that persons in a similar position to the applicant are being prosecuted, convicted and sentenced in contravention of the principle against double jeopardy and against the protection afforded by ICCPR to which Nigeria was a signatory, there is nothing to prevent the applicant petitioning the Chief Executive for a reduction in sentence by way of either a section 83P (Cap 221) referral to the Court of Appeal, or the mechanism under Article 48(12) of the Basic Law.”

18.  In AG v Ching Kwok-hung [1991] 2 HKLR 125, the Court of Appeal indicated the following tariffs in sentencing after trial for trafficking in “ice”, namely:

“300 to 600 grammes: 14-18 years;

 over 600 grammes: from 18 years upwards.”

19.  The Court of Appeal commented at page 130 of the judgment; “By upwards we mean, as was indicated in Lau Tak Ming, beyond any cut off sentence, but bearing in mind the dangers of a mathematical progression causing injustice.  In coming to this tariff we have in mind the maximum penalty is life imprisonment.”

20.  In HKSAR v Chan Po Wah and Another (CACC 179/2012), the defendants were arrested when they were checking-in for a flight to Australia.  They were each found to be in possession of just over 1.5 kilogrammes of “Ice”.  They pleaded guilty to trafficking in a dangerous drug and were each sentenced to 16 years and 8 months’ imprisonment (a starting point of 25 years less the one-third discount for the guilty plea) based on HKSAR v Abdallah [2009] 2 HKLRD 437 where the Court of Appeal laid down tariff guidelines for the sentencing of persons convicted of trafficking in quantities of heroin and cocaine.

21.  The Court of Appeal, in reducing the starting point to 23 years, pointed out that Abdallah (supra) deals with heroin and cocaine, but not “ice” and that the correct sentencing guidelines for trafficking in “ice” should be those laid down in Ching Kwok-hung (supra).  The Court of Appeal further pointed out that under Abdallah (supra) the appropriate guideline for trafficking in over 600 grammes of heroin/cocaine should range from 20 years upwards whereas the appropriate guideline for trafficking in over 600 grammes of “ice”, under Ching Kwok-hung(supra),should only range from 18 years upwards.

22.  At paragraph 19 of the judgment, McWalters J comments:

“It is unclear whether the judge thought that he could use the heroin guideline for ICE or whether he thought that it applied also to ICE. Either way it was simply an inappropriate guideline to employ when sentencing for this drug. The reason the Court of Appeal devised specific guidelines for ICE was because there were a number of differences between the nature and use of the two drugs which made in inappropriate to apply or adapt the heroin guideline to ICE. Of course, since the guidelines were laid down in HKSAR v Lau Tak Ming [1990] 2 HKLR 370 they have been revisited in Abdallah specifically to cater for amounts above 600 grammes. No such review of the ICE guidelines has occurred and so no revision has been taken place in respect of amounts above 600 grammes. Whether it is now time for this to happen is an issue which will have to be considered on another occasion. As a consequence of the judge’s error in applying the Abdallah guideline it now falls to this court to sentence the applicants in accordance with the correct guideline.”

23.  In the present case, the proper guidelines to follow are those laid down in Ching Kwok-hung and it is not clear, from the judge’s reasons of sentence, that she had such guidelines in mind.  There is a danger that she followed the guidelines laid down in Abdallah (supra).

24.  The quantity involved is 2.91 kilogrammes, almost five times the 600 grammes that attracts an 18-year starting point.  However, a mathematical progression must be avoided.

25.  We bore in mind that a 24-year starting point, 6 years beyond the cut off sentence of 18 years, is itself a very stiff sentence.  We bore in mind also the reminder issued by Stock VP in HKSAR v An Unknown Person alias Stojanovic Milka and Skopljak Sara (unreported CACC 110/2010) that other sentencing decisions of the Court of Appeal can only be of limited value on sentence appeals.

26.  Whilst the judge was entitled to enhance a starting point because of the international element when the drugs were brought into Hong Kong from aboard, we were persuaded that the enhanced starting point of 26 years was manifestly excessive.

27.  We were persuaded that in all the circumstances of the case, including the aggravating feature of an “international” element identified by the judge, a starting point of 24 years’ imprisonment would be sufficient to reflect the applicant’s guilt.  As the applicant had pleaded guilty to the charge, she should be entitled to the customary one-third discount.

28.  We therefore granted leave to the applicant to appeal against sentence.  Treating the application as the appeal proper, we allowed the appeal by reducing the applicant’s sentence from 17 years and 4 months to 16 years’ imprisonment.