HKSAR v. BAGUMA GEORGE

CACC 65/2020

[2021] HKCA 147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 65 OF 2020

(ON APPEAL FROM HCCC NO 189 OF 2018)

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J U D G M E N T

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Introduction

1.  The applicant was sentenced by Deputy High Court Judge Woodcock (the judge) to 14 years and 2 months’ imprisonment on 27 February 2019, following his guilty plea to a single count of trafficking in a dangerous drug, namely 1.12 kilogrammes of a solid containing 864 grammes of cocaine and 5.01 grammes of cannabis, in herbal form, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  On 21 May 2020, nearly 15 months after he was sentenced, the applicant applied for leave to appeal against his conviction out of time.  He offered no cogent explanation for the inordinate delay in filing his application.  Even though he pleaded guilty to the offence, he essentially complained that he was not convinced by his guilt because someone else he alleged was involved in the case had not been prosecuted.

3.  On 7 July 2020, the Court directed that the applicant should submit an affirmation setting out the reasons for the delay in filing the application and the grounds of appeal against conviction with sufficient particulars, given that he had pleaded guilty to the offence.  He filed two letters dated 14 and 23 July 2020 and an affirmation dated 8 October 2020, in which he repeated his complaint that someone else he alleged was involved in the case had not been prosecuted and added that his sentence was not discounted by the judge as much as he was advised it would be by his counsel.

The summary of facts

4.  The summary of facts,[1] to which the applicant pleaded guilty, reveal that on 13 November 2017, the police mounted an anti-drugs operation to observe a flat on the 5^th Floor, No 6 Wah Fung Street, Hung Hom (the flat).  At about 23:38 hours on that day, the applicant was intercepted coming out of the flat holding a black bag in his left hand. 

5.  The police, upon searching the black bag, found one plastic bag containing 1.12 kilogrammes of a solid containing 864 grammes of cocaine and 3 plastic bags of plant material.  One of these bags contained 5.01 grammes of herbal cannabis.  The applicant was arrested and cautioned. Also found on the applicant were four keys, two mobile phones and cash consisting of $8,408. 

6.  The applicant was taken back to the flat, which was a sub-divided unit consisting of three rooms.  The police used the keys found on the applicant to gain entry into Room C.  The police conducted a search of Room C pursuant to a search warrant. 

7.  On a glass table in the living room, there was an electronic scale, a roll of plastic bags and one mobile phone.  Inside a pair of shoes (the left shoe) there was $110,000 in cash.  A rental receipt and a tenancy agreement for Room C were also found.  The purported tenant was “Ririt Anggrani” and the term of the tenancy was from 1 April 2015 to 31 March 2016 with a monthly rental of $5,000. 

8.  In a subsequent video record of interview (VRI), the applicant explained that he had come to Hong Kong in March 2017 and had become acquainted with a man whom he had met at Chungking Mansions, and who would buy him food when he was hungry.  On 12 November 2017, this man took him to his home, Room C, and told him he was to collect a bag of stuff for him which he left on the table in Room C and that he would pay him $8,400. 

9.  On 13 November 2017, in the evening, the man called him again and “told him to go back to his place to retrieve the black bag”.[2] The two men then took a taxi to the man’s place, the man gave him the key to the place and the applicant went up to the flat and collected the black bag.  He said he checked the black bag and saw white substance inside but he did not know what this was.  He said he was then to catch a taxi from downstairs and to call the man who would direct the taxi where to go.  It was at this moment, when leaving the flat, that the applicant was intercepted.  The applicant explained that he had not asked the man what was inside the black bag.  The applicant said he did not know anything about the mobile phone, the electronic scale, nor the money found inside the shoe.  The applicant provided what he said was the telephone number of the man and said that the $8,400 found on him when he was arrested was money given to him by the man.  He did not know the name of this man.

10.  The summary of facts further provided that the tenant of the lease, “Anggranei” rented the room with a man named “Michael” and that Michael would come to the shop of the managing agency on the fifth of each month to pay the rent.  This was on a rolling basis since the expiry of the tenancy on 31 March 2016.  Since December 2017, Michael had not come to pay rent. 

11.  The summary of facts concluded that the applicant “admitted and accepted that at all material times he knew the black bag contained dangerous drugs and he possessed it for the purposes of unlawful trafficking.”[3]

Mitigation

12.  Defence counsel submitted that the applicant had a wife and three children in Uganda and had arrived in Hong Kong on 5 March 2017, but that after 4 April 2017 he had overstayed and become a Form 8 recognizance holder.  It was submitted the applicant had assisted the authorities in two ways.  First, two non-prejudicial statements were provided to the court along with a memorandum prepared by the police explaining that the two non-prejudicial statements led to the arrest of an individual but that the Department of Justice had concluded there was insufficient evidence to prosecute.  Secondly, a letter was submitted written by Father John Wotherspoon outlining the applicant’s assistance in his anti-drug campaign.[4] 

13.  It was contended, nonetheless, that the applicant had at least tried to provide some assistance to the authorities.[5] 

14.  Counsel for the prosecution noted two inaccuracies in the letter from Father Wotherspoon, concerning the fingerprints of someone else identified as Nathaniel and a tenancy agreement.  The prosecution submitted the applicant’s assistance in the form of his two non-prejudicial statements were not truthful or accurate and the applicant was not credible.[6]

Reasons for sentence

15.  Of the applicant’s assistance, the judge stated:

“It is part of the defendant’s mitigation that he provided two non-prejudicial statements to assist the police to arrest the man he says recruited him. He only provided the police with a name and telephone number of that male who gave him the money and those instructions. That man was arrested and it would appear that file was opened and sent to the Department of Justice for legal advice. The legal advice received from the Department of Justice was that there was insufficient evidence to proceed against this man. Mr Arthur urges this court to exercise its discretion and consider a discount for the defendant’s attempt to assist the police.”[7]

16.  Having referred to HKSAR v Abdallah [2009] 2 HKLR 437, the judge adopted a starting point of 21 years and 4 months’ imprisonment, but reduced this to 21 years in all the circumstances.  She did not take into account the herbal cannabis, noting it was of a very small quantity compared to the cocaine.  The starting point was enhanced by 12 months on account of the applicant’s status as a Form 8 recognizance holder, arriving at a notional starting point of 22 years’ imprisonment.  However, this was reduced by 3 months for the applicant’s participation in Father Wotherspoon’s anti-drug campaign, and a further 6 months for his efforts to assist the authorities, resulting in a sentence of 21 years and 3 months.  After a one third discount the applicant’s guilty plea, the resultant sentence was 14 years and 2 months’ imprisonment.[8] 

The applicant’s submission

17.  The applicant, by way of two hand-written letters dated 14 and 23 July 2020, makes the following complaints, all of which appear to revolve around a man whom he suggests was the tenant or occupier of the room and who was instructing him on the day he was arrested.  He identifies this man as Ifdioramma Nathaniel Uchenna (Nathaniel), whom he says has set him up.  The applicant complains that he gave the police Nathaniel’s name and identified Nathaniel in an identification parade.  He says he got the man’s name from an interpreter who heard he had been set up and wanted to help him.

18.  The applicant says Nathaniel was the man who had the drugs inside the room, instructed him, and gave him the keys.  He argues Nathaniel’s name matches the fingerprint the police lifted from Room C.  He further says Nathaniel was the person paying the rent for the room. 

19.  The applicant further alleges that Nathaniel arranged to have money sent to the applicant’s wife so that he would stop telling the police about him.  He attached a copy of a transaction note which he says he received from his wife.  He claims it is a transfer of 30,000 Naira to his wife from the sister of the person who saw him in prison, on behalf of Nathaniel, and who promised him 500,000 Naira and a further 2,000,000 Naira, to stop informing on Nathaniel.  The equivalent of 30,000 Naira is $600 Hong Kong currency.  

20.  The applicant contends that his counsel representing him in the court below explained to him he would receive a 50% reduction to his sentence.  It seems this is also a basis why he is challenging his guilty plea.

The respondent’s submission

21.  Mr Kelvin Tang, for the respondent, notes the application was filed out of time by almost 15 months and submits the applicant has advanced no ground to justify this delay.  He submits the summary of facts, which were accepted by the applicant, provided an unequivocal acceptance of the applicant having trafficked in dangerous drugs.  He contends the evidence against the applicant was overwhelming as he was in physical possession of the drugs when intercepted by the police and that he made a subsequent confession in his VRI.  He submits there is nothing to suggest the applicant’s guilty plea was involuntary and that at the sentencing hearing on 27 February 2019, the judge confirmed his guilty plea made in Eastern Magistracy on 4 June 2018.  He argues there is nothing materially different in the applicant’s letters provided by him for his appeal, and what was said by him in his VRI.  The applicant says he was paid $8,000 by an unknown and unnamed person on 12 November 2017, and that on 13 November 2017 he was told by this person to retrieve a bag from Room C. 

22.  Mr Tang notes that the fingerprint report dated 22 March 2018 attached to the applicant’s letters showed the left palm print of Nathaniel was found on top of a cupboard in Room C, and that it was therefore correct for prosecuting counsel in the mitigation hearing to have submitted that Father Wotherspoon was incorrect in saying in his letter that Nathaniel’s fingerprints were found on the drug parcel.  He points out that this evidence at most proved that Nathaniel had once been present in Room C.  When the applicant was interviewed he said the room had been rented to a female and a male named Michael.  He did not know the name of the man who asked him to collect the black bag from the room. 

23.  Mr Tang finally notes that an Igbo interpreter has been provided to the applicant throughout the proceedings of his case. When he pleaded guilty in the Magistrate’s Court he was represented by counsel.  He admitted the summary of facts and confirmed his plea was made voluntarily. 

Discussion

24.  In R v Wong Kai Kong & Anor [1990] 1 HKC 279, it was held that in considering whether leave should be given to appeal out of time, a court will take into account: (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.  It was open to the court to look at the grounds of appeal to check that by refusing leave to appeal, it was not shutting out a substantial and plainly arguable ground of appeal.  However, the court has to bear in mind that substantial grounds have to be shown for the delay.  As a consequence, the longer the delay, the greater the justification for it.

25.  The applicant provides no plausible explanation for the inordinate delay in filing this application.  He says his lawyer at the time told him not to appeal, and he could not attend to the matter because of health problems.  The information and material that he relies on to support his grounds of appeal have been with him for some time and there is no reason why these grounds could not have been submitted earlier.  But this is a reflection of the basis of his appeal which is not founded on any viable or substantial grounds of appeal.

26.  The applicant seeks by this application to appeal his conviction of trafficking in dangerous drugs on his own plea.  As noted in HKSAR v Nur Mei Lina [2018] HKCA 383, it would be rare indeed for an applicant to succeed in showing that a conviction is unsafe or unsatisfactory where an unequivocal plea of guilty has been properly entered.[9]  An applicant therefore has to establish that there is some overriding factor for an appellate court to disturb his conviction.  In HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125, this Court set out six circumstances where a plea of guilty could be rendered a nullity and none of them apply to the facts and circumstances of this case.  It is clear from the information at hand that the applicant entered an unequivocal plea of guilty, properly founded on the facts admitted, and there is no suggestion that the plea was not the result of a deliberate and informed decision or that there was any other matter that rendered the applicant’s conviction a nullity.  I note in his VRI, when the applicant was asked how many times he had trafficked in dangerous drugs for this man, he answered “Only this one”.[10]

27.  The applicant seeks to have his conviction quashed on two bases.  First, he complains that another person was involved in this offence, in respect of whom he has provided information to the authorities, and yet no prosecution has taken place against this person.  This is not a basis on which to disturb his conviction.  He admitted that he collected a bag containing drugs from Room C, which he was carrying when he was apprehended by the police.  He unequivocally acknowledged his guilt for the offence of trafficking in dangerous drugs and admitted a set of facts that supported the conviction. 

28.  Secondly, he complains that he was led to believe by his counsel that he would receive a discount of 50% to his sentence but instead he received less than that from the judge.  This is also not a basis on which to disturb his conviction.  As stated in HKSAR v Nur Mei Lina, an appellate court would not interfere with an otherwise proper plea of guilty merely because of dissatisfaction with the sentence.  In any event, the sentence imposed upon the applicant was in accordance with the relevant sentencing principles and tariffs, and if anything was relatively generous given the circumstances of the case.[11]

Conclusion

29.  It follows from what I have said that there is no basis to extend time and the application for leave is refused.

30.  The applicant is reminded of his right to renew his application for leave to appeal against conviction out of time to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application. 

[1] Appeal Bundle, pages IV-VI.

[2] Appeal Bundle, page V, paragraph 5. 

[3] Appeal Bundle, page VI. 

[4] Appeal Bundle, pages 2-5.

[5] Appeal Bundle, pages 6-8.

[6] Appeal Bundle, pages 6-8.

[7] Appeal Bundle, page 11L-P. 

[8] Appeal Bundle, pages 11-14.

[9] At paragraph 89.

[10] Video record of interview dated 14 November 2017, at Counter 1269.

[11] At paragraph 85.