HKSAR v. NATUKUNDA AISHAH

CACC 53/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 53 OF 2016

(ON APPEAL FROM HCCC NO. 262 OF 2013)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1. By a Notice of Application for leave to appeal against sentence, filed with the Court on 19 February 2016, the applicant, who was unrepresented having been refused legal aid, sought leave to appeal out of time against the sentence of 13 years’ imprisonment imposed on her by Bokhary J on 27 January 2014, following her conviction on her plea of guilty to one count of trafficking unlawfully on 23 December 2012 in a dangerous drug, namely 528.14 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The facts

2. On 23 December 2012, the applicant, a 29-year-old Ugandan national, arrived at the Hong Kong International airport on a flight from New Delhi via Hyderabad and Singapore.  She was refused permission to land and subject to customs clearance.  Examination of her baggage revealed the heroin hydrochloride, the subject of the count, concealed in six dresses.  On being arrested and cautioned, the applicant admitted that she had purchased the dresses in New Delhi and claimed that those dresses were intended to be worn by her and her maids at her forthcoming wedding in Uganda. 

3. In a subsequent video recorded interview conducted under caution, the applicant admitted, inter alia, a friend called Singh had made all the arrangements for her to travel to Hong Kong to deliver the dresses to a female in Hong Kong, for which she had been promised a reward of US$10,000 upon successful delivery.  In pleading guilty, the applicant accepted that she had knowingly brought the heroin hydrochloride into Hong Kong.

4. The estimated retail value of the heroin hydrochloride was $1,387,330.

Reasons for sentence

5. In sentencing the applicant, the judge said she had taken into account the matters advanced in mitigation, which included the fact that the applicant was a 30-year-old mother of a five-year-old child in Uganda and of previous good character.  Then, the judge stipulated a starting point for sentence of 18½ years’ imprisonment, which she enhanced by one year’s imprisonment to reflect the fact that the applicant had imported the heroin hydrochloride into Hong Kong.  Affording the applicant a one‑third discount for her plea of guilty, the judge imposed a sentence of 13 years’ imprisonment on the applicant.

Application for leave to appeal out of time

6. In an affirmation, dated 18 February 2016, the applicant sought to explain making the application out of time.  She asserted that at the time that she was sentenced she was confused and did not understand much English.  However, since that time she had learnt English and now wished to appeal against her sentence.  At the hearing, the applicant confirmed that she had written in the explanation contained in the affirmation.  It is written in readily understandable English in well formed manuscript.  The applicant confirmed that whilst in Uganda she had been taught English, although she said that her English had become better whilst she was in Hong Kong.

Grounds of appeal against sentence

7. In her written application, the applicant advanced no grounds of appeal against sentence.  At the hearing, the applicant requested an adjournment of proceedings so that she could obtain documents from Uganda.  On enquiry, it turned out that was assistance she was seeking from Uganda in identifying sentences imposed on fellow prisoners for offences of unlawfully trafficking in dangerous drugs in which they had received lesser sentences of imprisonment for trafficking in similar quantities of heroin hydrochloride.  We refused the application and invited the applicant to provide grounds of appeal addressing the issue of why the sentence of imprisonment imposed upon her was wrong.  No such grounds were forthcoming.

The respondent’s submissions

8. In her written submissions Ms Sabra Lo, for the respondent, opposed the application for leave to appeal out of time.  She submitted that the applicant had articulated no good reason for the almost 24-month delay in filing a notice of her application.  In any event, she contended that the starting point for sentence stipulated by the judge, and the enhancement of that starting point to reflect the aggravating factor of the importation of the heroin hydrochloride into Hong Kong, that were adopted by the judge were consistent with the relevant judgments of this Court.[1]  As a result, she submitted that the sentence of imprisonment imposed on the applicant was not wrong in principle or manifestly excessive.

9. The 528.14 grammes of heroin hydrochloride in which the applicant trafficked unlawfully fell within the band of 400 to 600 grammes of that substance, for which the range of the sentence of imprisonment, articulated in the guidelines set out in the judgment of this Court in R v Lau Tak-ming, was 15 to 20 years’ imprisonment.  A purely arithmetic approach to the determination of sentence identified 18 years and 2 months’ imprisonment as the appropriate sentence.  A similar approach to the enhancement of sentence led to the identification of a sentence of about 1 year and 1 months’ imprisonment as appropriate.  So, the resulting total enhanced sentence identified by a purely arithmetic approach to sentencing was about 19 years and 3 months’ imprisonment.  The enhanced starting point taken for sentence identified by the judge of 19½ years’ imprisonment was within the range of sentence available to the judge in her discretion.

A consideration of the submissions

10. It is to be noted that the applicant was represented by Mr Arthur in the lower court, assigned as counsel by the Legal Aid Department.  At the hearing, the applicant confirmed that she and Mr Arthur had the benefit of an interpreter at the hearing at which she pleaded guilty and was sentenced.  No doubt, in the discharge of his duty as the applicant’s counsel, Mr Arthur would have advised the applicant of her right of appeal in respect of sentence.  Be that as it may, it beggars belief that, having been remanded in custody in Hong Kong since her arrest in December 2012, the applicant did not come to learn of her right of appeal in respect of sentence for fully 4 years, 2 years of which were after the sentence was imposed on her. Such reasons as the applicant has advanced for making her application two years out of time are wholly implausible.  Accordingly, not having advanced any reasonable explanation for making the application out of time, the application falls to be refused on that ground alone.

11. In any event, there is no merit in the wholly un-particularised grounds of appeal against sentence.  Whilst the enhanced starting point taken for sentence by the judge is about 3 months’ imprisonment higher than that which would result from a purely arithmetic calculation, clearly that sentence and the sentence of imprisonment actually imposed on the applicant after she was afforded a one-third discount lies within the range of sentence within the discretion of the judge.  Equally clearly, it is not manifestly excessive.

Conclusion

12. Accordingly, the application for leave to appeal against sentence out of time is refused.

[1] R v Lau Tak-ming and Others [1990] 2 HKLR 370; HKSAR v Chung Ping Kun CACC 85/2014 (unreported).