HKSAR v. CONDE NASSOU

CACC 427/2014

CRIMINAL APPEAL NO 427 OF 2014

(ON APPEAL FROM HCCC 18 OF 2011)

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

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

_________________________

REASONS FOR JUDGMENT
_________________________

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

Introduction

1.  On 4 July 2011, the applicant appeared in the Court of First Instance before M Poon J (“the judge”) on an indictment containing one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The applicant pleaded guilty to this count and on the same day she was sentenced to 13 years and 4 months’ imprisonment.

2.  By a Notice of Application for Leave to Appeal filed on 10 December 2014, the applicant applied for leave to appeal against her sentence out of time. 

3.  At the hearing of the application we granted the applicant an extension of time in which to apply for leave to appeal and treating the application as the appeal we allowed the appeal.  We quashed the sentence of the judge and in substitution for it we sentenced the applicant to 12 years 4 months’ imprisonment and said we would hand down our reasons for doing so at a later date.  This we now do. 

The facts of the case

4.  The Summary of Facts which the applicant admitted for the purposes of her plea revealed that at about 02:15 hours on 4 July 2010 she arrived at the Hong Kong International Airport on a flight from Kuala Lumpur, Malaysia.  She was refused permission to land and was referred to Customs Officers.  As the applicant was suspected of having concealed drugs in her body, she was sent to the Queen Elizabeth Hospital for a medical check.  An x-ray examination revealed the presence of foreign objects inside the applicant’s body cavity and she was thereupon arrested and cautioned.  She remained silent in response to the caution.  Over the course of 4 and 5 July the applicant discharged from her body 76 pellets which were found by the Government Chemist to contain 741.95 grammes of a mixture containing 504.74 grammes of heroin hydrochloride.  It was admitted in the Summary of Facts that the estimated retail value of this quantity of drug was $585,398.55 at the time of seizure.

5.  In a subsequent cautioned interview on 7 July 2010 the applicant admitted that:

(a) before she took the flight to Hong Kong on 3 July 2010, she met in Kuala Lumpur an unknown African male who gave her the pellets to swallow;

(b) after she swallowed the pellets, the African male accompanied her to buy air tickets and travelled with her to the airport where he took the flight with her;

(c) she was told by the African male that those pellets were medicine; and

(d) she was promised she would receive a reward of US$200 for her services upon arrival in Hong Kong.

6.  The applicant admitted in the Summary of Facts that at the material time she was trafficking in the heroin hydrochloride. 

The mitigation

7.  The applicant, aged 32, is a widow with six children.  She comes from Guinea in West Africa and travelled on a passport of that country.  She had a clear record prior to her conviction for this offence. Her counsel, Mr Martyn Richmond, informed the court that she married at the age of 14 and her husband had been the sole provider of the family before he passed away in 2009.  Then, in mid-2010, the applicant learnt that her sister-in-law in Malaysia was holding US$400,000 that belonged to the applicant’s deceased husband.  It was in order to retrieve this money that the applicant travelled to Malaysia.  However, the applicant was unable to locate her sister-in-law but whilst in Malaysia, she was approached by an African male who asked her to smuggle medicine into Hong Kong for a substantial reward.  Her counsel said that when the applicant was told to ingest this so-called medicine, she realized it was not medicine at all but she was by then committed to the scheme.

8.  In respect of her family, her counsel informed the court that her children were left in the care of the eldest child and that, in her absence, they faced a most uncertain future.  Her counsel asserted that the applicant is a religious person who is deeply remorseful for her conduct, as evidenced by her plea of guilty.

9.  In terms of the appropriate starting point Mr Richmond referred the judge to the relevant sentencing band as laid down by the Court of Appeal in R v Lau Tak Ming & ors [1990] 2 HKLR 370 which is that for between 400-600 grammes of narcotic a sentence of 15-20 years’ imprisonment should be imposed.  The following exchange then took place between the judge and Mr Richmond:

10.  “MR RICHMOND:     …

This lady now stands convicted of possession of 504 grammes.  My Lady, if we take 500 grammes as the midpoint in that sentencing range, the starting point of 17½ years’ imprisonment falls for your consideration as appropriate, and applying the normal dispensation of one‑third discount - one-third being 5 years and 10 months ‑ that would leave a sentence after plea of 11 years and 8 months’ imprisonment, on my calculation, my Lady.

COURT: But time and again, Mr Richmond, it is said that it is not a mathematical calculation.

MR RICHMOND: No, it’s certainly not.

COURT: And also this case is undeniably with an aggravation because of the international factor.

MR RICHMOND: I accept that, my Lady.  But if it had been based on the normal starting point, then a final sentence in the region of 12 years’ imprisonment would be appropriate.

My Lady, unless I can assist you further, I feel there is not anything further I can tell you about her or the circumstances of the case.

COURT: Thank you.”

Reasons for Sentence

11.  After referring to the circumstances of the offence and the applicant’s personal circumstances, the judge said:

“In sentencing the defendant, I have taken into account the nature of the offence, the nature and quantity of the drugs involved and the sentencing tariff, as well as mitigation forwarded.

For trafficking in heroin weighing between 400 to 600 grammes, a starting point between 15 to 20 years is to be adopted. In this case, an international element is present. I adopt a starting point of 20 years’ imprisonment. She is entitled to the full one-third discount for her plea of guilty. She is sentenced to 13 years and 4 months’ imprisonment.”

The application for an extension of time in which to appeal

12.  By a Notice of Motion dated 9 September 2015, the applicant sought leave to adduce her affirmation dated 8 September 2015 at the hearing of the appeal in accordance with the provisions of section 83V of the Criminal Procedure Ordinance, Cap 221.  In her affirmation, the applicant explained that the reason for her not filing her Notice of Application for Leave to Appeal timeously was because, at the time she was sentenced, she had been advised by her legal representatives that the sentence imposed was not manifestly excessive. 

13.  The application for an extension of time is supported by Perfected Grounds of Appeal which, by two grounds, set out the applicant’s complaints.  The first ground complains that the sentence is manifestly excessive and in support of this ground the applicant argues that the final starting point after enhancement for the international element should have been no more than 19 years’ imprisonment.  The second ground of appeal is that post-sentence events have caused great tragedy to the applicant and her family and “the resultant consequences on the current and future welfare of her children and their immediate “carers” merit a reduction of her sentence on “Humanitarian Grounds”.

14.  The humanitarian grounds are based upon the assertion by the applicant that her husband has died and that her family in Guinea has suffered a large number of deaths from the Ebola virus.  The affirmation of 8 September 2015, although it contains an explanation for the delay in applying for leave to appeal, is primarily filed for the purpose of laying a foundation for the application to adduce fresh evidence on appeal.  The fresh evidence is the statement by the applicant’s stepson, Mr Lansana Camara, dated 16 July 2015 which is exhibited to her affirmation and which set out her family circumstances, including the fact that he, Mr Camara had assumed the responsibility of taking care of the applicant’s children. This statement was obtained by the Director of Legal Aid and the applicant sought the leave of the court to adduce it at the hearing of her application.

Grounds of appeal

15.  In his written submissions in support of the first ground, the applicant’s counsel, Mr James McGowan argued that, in view of the quantity of drugs in question, the appropriate starting point should have been less than 18 years.  He drew the court’s attention to several comparative sentencing cases[1], in order to demonstrate the excessiveness of the sentence the judge imposed on the applicant.

16.  It was further submitted that, in the event that the suggested lower starting point had been adopted, the enhancement of that starting point by over 2 years’ imprisonment to allow for the international element would be manifestly excessive.  Mr McGowan referred the court to its judgment in HKSAR v Chung Ping Kun CACC 85/2014, unreported, 2 July 2014, in support of his proposition that an enhancement in sentence for the international element in respect of the quantity of narcotic trafficked by the applicant should not exceed one year.

17.  In respect of the second ground of appeal Mr McGowan relied upon the predicament of the applicant’s children and the heavy burden that has fallen upon Mr Camara.  Mr McGowan submitted that it would be appropriate for this court to reduce the length of the applicant’s sentence so that she could be allowed to resume her maternal obligations.

Discussion

18.  In determining whether to grant an extension of time to appeal, the court will have regard to:

(i) the length of the delay;

(ii) whether the applicant has a reasonable explanation for the delay; and

(iii) whether sufficient grounds of appeal are shown.[2]

19.  In R v Wong Kai Kong & Anor [1990] 1 HKC 279 this court emphasized that what an applicant is seeking from the court is an indulgence, not a right, and before granting an applicant this indulgence “substantial grounds must be shown for the delay”[3] and that “the longer the delay, the more onerous is the duty of the person making application.”[4]

20.  Here the delay is 3 years and 4 months.  It is clear from the applicant’s affirmation that on her case there are two quite different explanations for her delay.  The first relates to her first ground of appeal.  She says that at the time she was sentenced she received legal advice that there was no basis to appeal her sentence.  Now she has received different legal advice. 

21.  In respect of the second ground of appeal there is in fact no delay as this ground relies on post‑sentence events.  For this ground of appeal two issues arise.  The first is whether this court, being an appellate court, should intervene in this applicant’s case and a resolution of this issue involves a consideration of the role of appellate courts in respect of post‑sentence events.  The second question, which only arises once the court has resolved the first issue affirmatively, is whether the facts placed before the court, if accepted, justify the court extending mercy to the applicant as part of a balanced approach to the sentencing of the applicant.[5]

22.  Prior to the hearing of the appeal the court drew the attention of the parties to the judgment of Stock JA in HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395 where he said at 405F-H:

“ The essential function of this court, upon an application which pertains to sentence, is to determine whether the appellant should be sentenced differently for the offence for which he was dealt by the court below (see s 83I(3) of the Criminal Procedure Ordinance (Cap 221)); and the court will not intervene unless it is of the opinion that the sentence was manifestly excessive or wrong in principle. Generally, the court's function is to look at the factors which prevailed at the date of sentence, and not to act as an administrative review, or a supervisory tribunal to take into account factors since sentence. That is not to say that there are never instances in which the court will give weight to developments since sentence, or that the court is precluded from doing so. See, for example, R v Sze Tak-hung [1991] 1 HKLR 109, 112. But the circumstances in which it will give effect to post-sentence events are limited.”

23.  Stock JA recognised that there were exceptions to the general rule that post-sentence events were a matter for the executive, the one most regularly encountered by the Court of Appeal being cases where an offender provided post-sentence assistance to a law enforcement agency or the prosecuting authority.  But the role of the courts in respect of this exception has developed out of public policy considerations.  Other exceptions tend to be case specific and invariably involve unusual circumstances “and are decisions which do not undermine the good sense and rationale of the general rule.”[6]  The rule prevents the Court of Appeal from becoming a court of post-sentence supervision and allows it to remain faithful to its true role of a sentencing review court.

24.  However, there will be cases where the Court of Appeal may, exceptionally, decide to intervene.[7] In considering when, exceptionally, the court should depart from the general rule, the court will bear in mind that other remedies or avenues of redress are available to the prisoner.  The prison authorities may have powers relevant to the circumstances of the prisoner and, of course, the prisoner may always petition the executive.  Given the alternative avenues available to a prisoner, the issue becomes when does a case qualify as an exception to the general rule.  On this issue Stock JA, at 408F-G had this to say:

“Sentencing is, as has often been emphasized, an art, and not a mechanical application of rules or policy to the exclusion of the facts and justice of individual cases. It follows that there will be cases where a court will be moved to take action in an appellant’s favour by reason of post-sentence events because a failure to do so, by that court and at that stage, will defeat the ends of justice and the public interest.”

25.  In response to what was said in this judgment Mr McGowan informed the court that he would not be pursuing the humanitarian ground of appeal but instead the applicant would have recourse to the other remedies available to her.  Notwithstanding that this ground of appeal was not being pursued we have taken this opportunity to remind applicants and their legal representatives of these important judgments by Stock JA on the role of the Court of Appeal in its appellate sentencing jurisdiction and of the role that the exercise of mercy plays in the court’s determination of the sentence to be imposed on an offender. 

26.  The second ground of appeal having fallen away it now becomes necessary for us to consider whether we should grant the applicant the extension of time she seeks in order to pursue her first ground of appeal.  The explanation for the delay that has been advanced in respect of the first ground of appeal does not allege incompetence of counsel or set out in any detail the content of the legal advice provided to the applicant.  In these circumstances the applicant has not discharged the heavy burden that lies upon her to explain the delay.

27.  However, that failure does not mean that her application must be refused.  The court will always look to the merits of a proposed ground of appeal in order to check that if it refused leave it would not be “shutting out a substantial and plainly arguable ground of appeal.”[8]

28.  In the present case the judge adopted a final starting point of 20 years’ imprisonment in respect of a quantity of 504.74 grammes of heroin hydrochloride.  The relevant sentencing band is found in R v Lau Tak Ming & ors [1990] 2 HKLR 370.  For quantities of 400-600 grammes of narcotic the Court of Appeal said the sentencing band is 15-20 years’ imprisonment.

29.  In sentencing drug traffickers the first step to be taken by a court is to identify the appropriate starting point within the relevant sentencing band for the particular type and quantity of drug.  The next step is to determine whether there is any aggravating factor present which would warrant the judge enhancing this starting point.  Here, there is such a factor and it is that the commission of this offence involved the importation of the drug into Hong Kong; what is commonly referred to as being an “international element”.  In HKSAR v Abdallah [2009] 2 HKLRD 437 the Court of Appeal said the enhancement for an aggravating factor should be not less than 2 years’ imprisonment if the amount of narcotic involved was above 1 kg.  The Court of Appeal did not say what the enhancement should be for quantities less than 1 kg but at the time the applicant was sentenced trial courts commonly employed an enhancement of 1 year.

30.  Had the judge enhanced the sentence by one year then her starting point would have been 19 years, which, on its face, is unusually high for this quantity of narcotic.  Of course, it is only necessary to work backwards in this way, to effectively “reverse engineer” the judge’s sentence, because the judge did not identify either her initial starting point or the amount of enhancement. The judge was wrong not to have done so.  Her failure to do so prevented the applicant, and her legal advisers, from being able ascertain how the sentence had been calculated and hinders this court in determining whether the judge erred in the process by which she reached her final starting point.

31.  Ms Ng agrees that it would appear, by way of deduction, that the judge adopted a starting point of 19 years’ imprisonment and increased it by one year to reflect the international element.  This deduction assumes that the amount of the enhancement was one year, an assumption Ms Ng accepts would reflect the then practice of the courts in respect of this quantity of narcotic.  Ms Ng argues that such a starting point is still within the relevant sentencing band of 15-20 years’ imprisonment which was laid down in R v Lau Tak Ming & ors [1990] 2 HKLR 371 for the trafficking in 400-600 grammes of heroin hydrochloride.  Because it is within the relevant starting band it cannot, therefore, be said to be manifestly excessive, although such a starting point is, she accepts, on the high side.

32.  The respondent further submits that the sentence is not a mere mathematical calculation and that the judge retains some sentencing discretion as long as he imposes a sentence that is within the relevant band. 

33.  This is correct, as far as it goes, but it is not the complete picture.  The sentencing bands and for that matter, also the amount of enhancement, are all quantity based and so mathematics will inevitably play a role.  When this court has said that the determination of an appropriate sentence is not solely by reference to a mathematical calculation it has done so to emphasize that the sentencing judge still retains some sentencing discretion, albeit a severely constrained one.  But these statements of the court are not intended to remove mathematics from the calculation of the sentence.

34.  It must be remembered that the reason for having these sentencing tariffs is to promote consistency of sentencing.  The goal of consistency is pursued because of the benefits it brings to the whole of the administration of criminal justice.  They include:

(i) it enables there to be transparency in the sentencing process so that all those affected can readily understand how a particular sentence was arrived at;

(ii) it results in a fairer sentencing process with a lower likelihood of the offender being aggrieved by either the sentencing process or its outcome;

(iii) it makes less likely judicial error and contributes to a reduction in sentencing appeals; and

(iv) by making the likely punishment for the offence more publicly known it contributes to the deterrent character of the sentence.

35.  The importance of consistency of sentencing in drug trafficking cases, and the proper use of the weight based sentencing regime that is employed to achieve it, was emphasized by Stuart‑Moore A/CJHC in HKSAR v Burnales [2000] 4 HKC 636, 639.  He said:

“The policy of this court in relation to trafficking in drugs of these kinds has been to maintain a consistent level of sentencing under the guideline cases … so that potential traffickers, who are frequently couriers or storekeepers, will be deterred from engaging in such activities. Consistency, in this context, is related to sentences which are largely based upon the weight of the drugs being trafficked. If this court were to decide otherwise, the courts at first instance would find themselves endlessly being asked to consider the degree of culpability related to individual couriers and storekeepers. The guidelines, whilst of course not strait-jackets, are there to provide and maintain consistency of sentence between all offenders who traffick in dangerous drugs.”

36.  The more courts depart from sentencing on the basis of the weight of the drug, the less consistency will be achieved.  In the context of such a regime mathematics clearly plays a role in guiding the court to where within the relevant sentencing band it adopts an initial starting point for sentence. 

37.  Because drug trafficking cases, especially those involving international couriers, can have great factual similarity there may be nothing in either the circumstances of the commission of the offence or the background of the offender which calls for the judge to depart from a mathematically determined starting point.

38.  However, where matters are brought to the attention of the judge which engage the exercise of his discretion then he will depart from what mathematics might otherwise suggest is the appropriate starting point within the relevant sentencing band.

39.  But where the discretion is engaged the judge must explain why he has departed from the mathematical starting point, especially where he intends adopting a starting point within the band that is significantly higher than that which mathematics suggests is appropriate.  It is the experience of this court that those sentenced for unlawful trafficking in dangerous drugs are acutely aware of the sentences passed on other defendants.  They are aggrieved to learn that others have been sentenced to lower sentences in cases involving broadly similar amounts of dangerous drugs.  Thus, the bands create an expectation in offenders that, absent any aggravating factors, they will receive a sentence that is reasonably proportionate to the weight of the drugs in which they are trafficking.

40.  In the present case the failure of the judge to reveal the means by which she calculated her sentence prevents us from identifying any particular error in that process.  All the judge said was:

“In sentencing the defendant, I have taken into account the nature of the offence, the nature and quantity of the drugs involved and the sentencing tariff, as well as mitigation forwarded.”

41.  This general comment does not identify any feature in the applicant’s case which would justify adopting a starting point higher than 17½ years or an enhancement greater than 1 year.  Nor can we see any such feature.  Ms Ng suggested that the fact that internal concealment was the method used to import the drugs, and because it is a method more difficult to detect, it could be regarded as an aggravating feature.  However, we are unaware of any appellate authority to support such a proposition and Ms Ng could not direct our attention to any.  In any event, there is no reason to think that this is what prompted the judge to depart from the mathematical starting point.  Consequently, we were driven to conclude that the sentence is manifestly excessive and must have been arrived at through an erroneous process.

42.  That being so we were satisfied there is substantial merit in the applicant’s first ground of appeal and we granted her the extension of time she needed to pursue it.

43.  Treating her application as the hearing of the appeal, we quashed the sentence of the judge.  The applicant then fell to be sentenced afresh by us.  

44.  Mathematics would suggest a starting point of 17½ years imprisonment.  Once this first step is taken it then becomes necessary to determine whether there is anything about the commission of the offence or the background of the offender to depart from this starting point.

45.  Here, the commission of the offence was no different from other international courier offences.  We could find nothing in the commission of the offence to justify increasing the starting point within the band beyond 17½ years.  The applicant is a first offender and there is nothing in her background to justify going above 17½ years.  Likewise there is no reason to go below 17½ years.  The mitigation was effectively no more than great remorse and the prejudicial impact the applicant’s incarceration would have on her children.  However, the fact that her children will be deprived of their mother hardly distinguishes this applicant from other offenders.

46.  We now turn to the enhancement of this starting point to allow for the international element.

47.  Since the decision in Abadallah this court has laid down more detailed guidelines on the amount of enhancement for aggravating factors.  In HKSAR v Chung Ping Kun CACC 85/2014, unreported, 2 July 2014, this court was dealing with cocaine which, for sentencing purposes, is treated identically to heroin.  In that case Cheung JA said at paragraph 9:

“ As a broad guideline for drugs of this kind below 1,000 grammes we will suggest the level of enhancement as follows:

1) Up to 250 grammes	6 months
2) Between 250 and 500 grammes	6 months to 1 year
3) Between 500 and 1,000 grammes	1 year to 2 years”

48.  This judgment confirms that for the present applicant an enhancement of 12 months is appropriate to allow for the international element.

49.  The final starting point after enhancement, becomes 18½ years.  When discounted by one-third to allow for the applicant’s plea of guilty her final sentence becomes 12 years 4 months’ imprisonment and that is the sentence we imposed.

Conclusion

50.  For these reasons we granted the applicant an extension of time in which to apply for leave to appeal and treating the application as the hearing of the appeal allowed the appeal.  We quashed the sentence of the judge and in substitution for it imposed on the applicant a sentence of 12 years’ and 4 months’ imprisonment.

[1] There were HKSAR v Massogoa Nasra Hassani HCCC 234/2013, unreported, 13 August 2013 (a starting point of 18 years’ imprisonment for unlawful trafficking in 0.56 kg of heroin hydrochloride); HKSAR v Muturu Esther Waithira HCCC 322/2013, unreported, 10 October 2013 (a starting point of 17 years’ imprisonment for unlawful trafficking in 550 g of heroin hydrochloride); HKSAR v Feruzi Mariam HarunaCACC 12/2014, unreported, 10 June 2014 (a starting point of 18½ years’ imprisonment for unlawful trafficking in 530 g of heroin hydrochloride); and HKSAR v Joanne Tracy Rayner CACC 16/2014 (a starting point of 18 years and 9 months’ imprisonment for unlawful trafficking in 548.53 g of heroin hydrochloride).  None of these sentences were disturbed on appeal.

[2] See HKSAR v Oh Chun Kit [2013] 1 HKLRD 437

[3] R v Wong Kai Kong & Anor [1990] 1 HKC 279 at 281C-D.

[4] Ibid.

[5] HKSAR v Chan Kin Chung & Anor [2002] 4 HKC 314.  Stock JA, as he then was, at page 326G-H said:

“A balanced approach to sentencing is one that has proper regard to essential sentencing principle and policy, which includes the principle that the adverse effect of imprisonment upon an offender’s family will not normally be taken into account; and is one that has full regard to the seriousness of the crime, although not ignoring credible evidence that may justify a merciful sentence.”

[6] HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395 at 407A.

[7] See, for example, HKSAR v Lau Pang [2004] 3 HKLRD 565.

[8] Per Hunter JA in R v Ip Chung Hang CACC 345/88, unreported, 10 August 1988 and applied in R v Wong Kai Kong [1990] 1 HKC 279, 281C.