HKSAR v. WANJIRU ZUHURA NJAMBI

CACC 91/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 91 OF 2012

(ON APPEAL FROM HCCC NO. 321 OF 2010)

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BETWEEN

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Hon Lunn JA (giving the judgment of the court) :

1.  The applicant, a national of Kenya, seeks leave to treat the abandonment of her application for leave to appeal against sentence out of time as a nullity.

Trial

2.  On 6 January 2011, the applicant pleaded guilty before Deputy High Court Judge P. Li, as he was then, to a count of unlawfully trafficking on 27 April 2010 at Hong Kong International Airport, following her arrival from Addis Ababa in Ethiopia, in 2,620.55 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The judge sentenced the applicant to 17 years and 8 months’ imprisonment.  He did so, having stipulated a starting point for sentence of 26 years and 6 months’ imprisonment.  He stated that he calculated that starting point having regard to the guidelines articulated in the judgment in HKSAR v Abdallah[1] and having noted that the amount of cocaine in which the applicant had trafficked unlawfully fell in the range of 1,200 to 4,000 grammes in respect of which the applicable band of sentence was 23 to 26 years’ imprisonment.  Then, he identified an initial starting point for sentence as being 24½ years’ imprisonment, which he enhanced by 2 years’ imprisonment to reflect the aggravating factor of importation into Hong Kong of the dangerous drug.  Having afforded the applicant a discount of one third for her plea of guilty, the judge imposed sentence.

Application for leave to appeal against sentence

3.  On 7 March 2012, the applicant filed with the court an application for leave to appeal against sentence out of time, dated 6 March 2012, by way of Form XI of the Criminal Appeal Rules, Cap. 221.  She indicated in the form that she sought the grant of legal aid.  She explained in an affirmation filed together with the form that her application was made out of time because she had applied first to be transferred to serve her sentence in Kenya, only to learn subsequently that there was no transfer agreement in place between Hong Kong and Kenya to facilitate the transfer.  Then, she applied for leave to appeal against sentence.  Praying-in-aid her family circumstances, in particular the fact that she was a widow with one child, who was in the care of her ill mother, she asked that her sentence be reduced.   That was the submission repeated orally to this court today.

Notice of Abandonment

4.  On 23 April 2012, the applicant filed with the court a Notice of Abandonment of that application by way of Form VII of the Criminal Appeal Rules.  The form was dated 20 April 2012.  In a note attached to the form, the applicant explained that she did so because she had been refused the grant of legal aid.  That refusal was dated 2 April 2012.  Pursuant to Rule 39 of the Criminal Appeal Rules, her application for leave to appeal against sentence was dismissed on 23 April 2012.

Application for leave to treat the notice of abandonment as a nullity

5.  By an affirmation dated 17 December 2012, the applicant applied for leave to treat the Notice of Abandonment of the application for leave to appeal against sentence as a nullity and to have the application restored.  In support of her application, the applicant asserted :

“ After being sentenced by the Court, I had submitted my application for extension of time in which to give notice of application for leave to appeal against sentence on 6 March 2012 and also applied for Legal Aid on 6 March 2012. However, my application for Legal Aid was refused. Besides, I was waiting for information from my family regarding the woman who involved me in this crime of trafficking in dangerous drugs. But my family failed to get the information at that time that is one of my reasons to abandon my application for extension of time in which to give notice of application for leave to appeal against sentence on 20 April 2012. Now I want to apply to treat my previous abandonment as nullity.

I want you to consider my application for extension of time in which to give notice of application for leave to appeal against sentence again and the reason is stated on the attachment.”

6.  In order to seek to obtain information said to be relevant to the woman alleged to have involved the applicant in the commission of this offence the court adjourned proceedings, first on 6 June and then on 11 December 2013.  No information helpful to the applicant has been forthcoming. 

7.  Once an application for leave to appeal has been dismissed, following receipt by the court of a Notice of Abandonment, save where the matter has been referred to the Court of Appeal by the Chief Executive, pursuant to section 83P of the Criminal Procedure Ordinance, Cap. 221, unless the abandonment falls to be treated as a nullity this court is functus officio.  That is to say it is a service purpose.  It has no statutory or inherent jurisdiction to hear the application.  “There is no inherent jurisdiction to treat an abandonment as a nullity where the abandonment was in truth a deliberate and informed act.”[2]

8.  Nothing has been advanced before us that suggests in any way whatsoever that the abandonment of the application was other than an informed act.

Conclusion

9.  Accordingly, the application for leave to treat the Notice of Abandonment as a nullity is rejected.