HKSAR v. SAMUEL CHUKWU

CACC 290/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 290 OF 2016

(ON APPEAL FROM HCCC 367 OF 2011)

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

_________________________

REASONS FOR JUDGMENT

_________________________

Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  On 7 October 2011, following his plea of guilty at the Eastern Magistracy, the applicant was committed to the High Court for sentence on a single count of trafficking unlawfully in 1.28 kilogrammes of a mixture containing 0.58 kilogramme of heroin hydrochloride and 0.13 kilogramme of monoacetylmorphine hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 14 March 2012, the applicant was sentenced by Deputy High Court Judge Lugar-Mawson (“the judge”) to a term of 14 years’ and 4 months’ imprisonment.

2.  On 9 September 2016, the applicant filed a Notice of Application for Leave to Appeal (Form XI) by which he sought leave to appeal against his sentence out of time.  

3.  At the hearing of the application we refused it and said we would hand down our reasons for doing so at a later date.  These are our reasons.

The background to the offence

4.  The Amended Summary of Facts admitted by the applicant and used for the purpose of his sentencing revealed that the applicant arrived at the Hong Kong International Airport as an incoming passenger from Bangkok on 4 May 2011.  He was intercepted at the Green Channel of Customs Arrival Hall A of the Hong Kong International Airport for customs clearance.  As internal concealment was suspected, the applicant was escorted to Queen Elizabeth Hospital (QEH) for a medical examination. 

5.  The presence of foreign objects inside the applicant’s body was confirmed and he was arrested.  Between 4 and 7 May 2011, he discharged a total of 87 pellets, later confirmed to consist of a total of 0.58 kilogramme of heroin hydrochloride and 0.13 kilogramme of monoacetylmorphine hydrochloride[1]. 

6.  In a subsequent cautioned interview, the applicant admitted that a Mozambican friend in Bangkok called Nioku Odumodu had suggested to him that he carry the dangerous drugs from Bangkok to Hong Kong and make some profit.  The applicant was given about 1,300 grammes contained in pellet form on 3 May 2011.  He swallowed the pellets in a hotel in Bangkok and expected to sell them in Hong Kong for US$26,000.  He would have to give US$20,000 to Nioku Odumodu and he would be able to keep US$6,000 as his share of the profit.  The applicant said he intended to sell the pellets to a Ghanaian male whom he had met previously at the Mirador Mansion.  However, he denied knowledge of the nature of the pellets he had swallowed.

7.  The retail value of the dangerous drugs was estimated at HK$876,800 at the time of its seizure.  By admitting the contents of the Amended Summary of Facts, the applicant accepted that on 4 May 2011 he had unlawfully imported the dangerous drugs particularized in the count into Hong Kong.

The mitigation

8.  The antecedent statement revealed that the applicant was a Mozambican national and was 37 years old at the time of his sentence.  Mr Allman‑Brown, counsel for the applicant at the sentencing hearing, informed the court that the reason the applicant committed the offence was because of his need to raise money to pay for his father’s surgical operation.  His father had since died.

9.  Mr Allman-Brown referred the court to the previous practice of the Government Chemist not testing the actual nature of monoacetylmorphine hydrochloride.  He submitted that in HKSAR v Masham Deborah James[2], the judge discounted both the starting point of the sentence and the enhancement for the international element to allow for the fact that, as a result of the lax procedure of the Government Chemist, counsel and the defendant had been misled into believing that they had a reasonable prospect of convincing the court not to treat monoacetylmorphine hydrochloride as the same as heroin. Mr Allman‑Brown suggested that in the present case, the judge could adopt a similar approach, also in respect of both the starting point to be adopted and the enhancement of that starting point to allow for the international element.

10.  The judge indicated that he was not persuaded by this submission, saying:

“But we’re not faced with this situation, Mr Allman-Brown. There is a substance which we will call MAM because I cannot get my mouth around the chemical phrase.

It is a product of the manufacture of heroin, formed as a result of the incomplete chemical process. There is one type of it which is inert, and there is one type of it which has exactly the same potency as fully-formed heroin. In this case, we are dealing with the type that has the same potency as fully-formed heroin…

We are faced with a quantity of dangerous drugs in this case, and we know from the government chemist report the potency of that quantity of that dangerous drug.  The fact that part of it are dangerous drugs formed of – result of an incomplete chemical process, as far as I see, is of very little relevance.”

The judge’s Reasons for Sentence

11.  The judge stated that nothing in the applicant’s particular circumstances constituted any meaningful mitigation.  The only mitigating factor that could be taken into account was the applicant’s guilty plea.

12.  The judge confirmed the view that he had expressed in the course of Mr Allman-Brown’s mitigation address in respect of the submission based upon part of the narcotic being monoacetylmorphine hydrochloride.  He said:

“Suffice it to say it is clear to me that the narcotic effect of those drugs was the same, regardless of what the chemical content of part of the consignment was. It would have had the same effect on the person who consumed it. I therefore can take no account of the fact that some of the quantity of dangerous drugs had a different chemical content, when analysed, from the other.”

13.  The judge then noted that there were well-established guidelines in Hong Kong as to how a court should sentence persons who engage in drug trafficking.  He said that had the applicant been convicted after trial then the applicant:

“…following those well-established guidelines, would have been looking at a prison sentence of at least 21 years and 6 months.

That would take into account the international aspect of this case, in particular that 6 months that I have just spoken of …

As I said, you will receive full recognition for your clear record and for your plea of guilty, and therefore the sentence of 21 years and 6 months that you would have received after trial is reduced by one-third to a sentence of 14 years and 4 months.”

The application for an extension of time 

14.  In an affirmation attached to his Form XI, the applicant explained his delay in pursuing his application for leave to appeal. He said:

“It was only in July 2016 following discussion with other inmates, that I come to realise that the courts have for more than one case used a lower starting point. This prompted me to gather information on the cases set out in paragraph 3 above. After collecting such information I applied for legal aid to pursue this appeal immediately.”

The grounds of appeal against sentence

15.  In his initial Grounds of Appeal, attached to his Form XI dated 9 September 2016 and in a written submission filed with the court on 23 March 2017, the applicant referred to three first instance decisions that involved similar quantities of dangerous drugs and in respect of which the court had adopted lower starting points.  These were:

(a) HKSAR v Kagoda Isaac, HCCC 117/2012, which involved 700 grammes of heroin and where the court had adopted 21 years’ imprisonment as a starting point, inclusive of an enhancement of 1 year to allow for the international element;

(b) HKSAR v Charles Gomes O, HCCC 363/2011, which involved 820 grammes of heroin and where the court had adopted 21 years’ imprisonment as a starting point, inclusive of an enhancement of 1 year to allow for the international element; and

(c) HKSAR v Muganda Gervas Anselm Matura, HCCC 336/2013, which involved 710 grammes of heroin and where the court had adopted 21 years’ imprisonment as a starting point (inclusive of an enhancement of 1 year to allow for the international element.

16.  The applicant submitted that these cases demonstrated that appealable error had taken place in his case.  The factual basis on which his argument rested was his understanding of what the judge had said in his Reasons for Sentence.  He has assumed that the judge had adopted a starting point of 21 years and then enhanced it by 6 months to allow for the international element to reach a final starting point of 21 years 6 months’ imprisonment.  This, the applicant submitted was wrong.  The mathematical starting point, as the respondent conceded, was only 20 years 7 months but, he argues, the judge appears to have rounded this figure off by increasing it to 21 years without explaining why he was doing so.

17.  In respect of the international element the applicant submitted that in sentencing the applicant afresh this court should adhere to the judge’s enhancement of 6 months’ imprisonment. 

The respondent’s submission

18.  Ms Rosa Lo, Senior Public Prosecutor, for the respondent, submitted that when considering an application for an extension of time to appeal, the court should have regard to the principles enunciated by the Court of Appeal in its judgment in R v Wong Kai Kong & Anor[3].     

19.  Ms Lo calculated that the length of the applicant’s delay in filing the application for leave to appeal against sentence was about 4 years and 5 months.  She submitted that no reasonable explanation has been provided by the applicant to explain the delay and in this respect the court should bear in mind that the three cases on which the applicant relies were concluded in the years 2011 to 2013. 

20.  However, even if the applicant’s explanation does not reasonably explain the delay the Court of Appeal will always examine the grounds of appeal to see if they are impressive and to ensure that should it refuse the extension of time sought it was not shutting out a substantial and plainly arguable ground of appeal. 

21.  In response to the three cases cited by the applicant in support of his ground of appeal, the respondent relied on what was said by the Court of Appeal in HKSAR v Nwadiuto Samuel Joseph[4], at paragraph 49:

“49. The correct approach, as Ms Chan has submitted by reference to the cases quoted in paragraphs 33 and 34 of this judgment, is to focus on the applicant’s own sentence and to examine that sentence, the route by which it was reached and the reasons that underlie it in order to determine whether the judge who sentenced him has fallen into appealable error. In the absence of appealable error all an applicant can show is that another offender in a wholly unrelated case has been treated more leniently than he. This may well be a source of grievance to the applicant, and understandable grievance at that, but it is not enough reason for this court to interfere.”

22.  Applying this approach to the applicant’s case, Ms Lo submitted that according to the sentencing guideline laid down in HKSAR v Abdallah[5], trafficking in 600 to 1,200 grammes of heroin hydrochloride attracts a sentence in the range of 20 to 23 years’ imprisonment.  On an arithmetic calculation, trafficking in 710 grammes of heroin hydrochloride would attract a starting point of 20 years and 7 months’ imprisonment. 

23.  Ms Lo submitted that as the judge has a discretion to depart from an arithmetically calculated starting point and to adopt a starting point elsewhere within the relevant sentencing band for the particular quantity of drug in which the applicant was trafficking, the starting point of 21 years’ imprisonment could not be regarded as manifestly excessive.

24.  In respect of the enhancement of 6 months’ imprisonment to reflect the aggravating factor of the international element she submitted that it could be regarded as unduly lenient in view of the comments of the Court of Appeal in HKSAR v Rado Mary Litren Adhiambo[6].

25.  Ms Lo submitted that given the absence of any reasonable explanation, coupled with the total lack of merit in his application for leave to appeal against sentence, the application should be dismissed.

Discussion: The application for an extension of time

26.  The importance of appeal time limits and of society’s interest in having finality in the criminal process were emphasized by Li CJ in comments he made in HKSAR v Hung Chan Wa & Anor[7]when he said at paragraphs 21 and 22:

“21. The avenue of appeal is provided for by statute for persons convicted of criminal offences. Various statutory provisions provide for appeals through the hierarchy of the court system. … These provisions lay down time limits for appeals and confer on the courts the discretion to extend time. (In this judgment, the term ‘appeal’ is used to include leave to appeal.) This arrangement is an important feature of any criminal justice system. It is in the interests of society for there to be finality in the criminal process. But the time limits for the purpose of achieving finality are not absolute. The courts have the discretion to relax the time limit where this is considered to be justified in the circumstances of an individual case.

22. While the question, whether time should be extended for an appeal against conviction is essentially a matter of discretion for the courts, it is of course not an unfettered discretion. The burden is on the defendant to justify exercise of that discretion in his favour.”

27.  In exercising this judicial discretion on whether leave should be given to appeal out of time the Court of Appeal will have regard to the principles set out by the Court of Appeal in the Wong Kai Kong case[8] to which Ms Lo referred. 

28.  Applying these principles, the Court of Appeal looks to the period of time which has elapsed between the conviction or sentence and the application, the reasons advanced for the failure to make the application within time and generally the bona fides of the applicant.  The longer the delay, the more onerous is the duty of the person making the application.  In considering the reasonableness of the explanation for the delay the court will bear in mind that substantial grounds must be shown for the delay before the granting of the indulgence of an extension of time.

29.  In explanation for his delay, the applicant said that he was advised by his counsel at the time that he was sentenced that there were no grounds of appeal against his sentence.  However, he came to doubt his counsel’s advice after uncovering other cases from fellow inmates and cited three cases which he submitted provided more lenient sentences for a similar quantity of drugs.  He said it took him time to have the opportunity to communicate with fellow inmates and obtain knowledge of their experiences. 

30.  The applicant’s explanation does not come anywhere near justifying the more than 4 years delay in applying for leave to appeal.  If such a submission was entertained, there would be no end to the appeal process and the important interest of society in having finality in the criminal process would be undermined.

31.  Nevertheless, notwithstanding the lack of merit in the explanation for the delay we shall, as is our practice, examine the submissions being advanced by the applicant in respect of the excessiveness of his sentence in order to ensure that, should we refuse his application for an extension of time, we would not be shutting out a substantial and plainly arguable ground of appeal.

Discussion: The merits of the grounds of appeal

32.  The first step for us is to determine what the correct final starting point for the applicant should have been.  Mathematically, the initial starting point should have been 20 years 7 months unless there were reasons for the judge, in the exercise of his sentencing discretion, to depart from this mathematically determined starting point.  Assuming that initial starting point then the next step is to determine the enhancement that should be made to this initial starting point to allow for the international element.  There is no doubt that this should be 12 months. Indeed, in all the cases on which the applicant relies a 12 months’ enhancement was made by the sentencing judge.    

33.  In the present case the judge adopted a 21 years 6 months final starting point.  So, on its face, there is no excessiveness in the final starting point adopted by the judge.

34.  Nevertheless, the applicant points to three decisions at first instance where lower final starting points were adopted by other judges.  However, as the Court of Appeal has said on many occasions,[9] lenient treatment by other judges of other offenders does not demonstrate appealable error in the applicant’s case.  The cases to which the applicant has referred us do not assist him and are not, in any event, appellate authorities.

35.  However, the applicant submits that the judge erred in adopting a starting point of 21 years.  The question for us is whether that is what he, in fact, did.  The only basis for saying that this is what he did is his comment in respect of his final starting point of 21 years 6 months’ imprisonment.  Without indicating either what his initial starting point was or by what amount he would enhance that starting point to allow for the international element, the judge said:

“That (referring to the 21 years 6 months’ imprisonment) would take into account the international aspect of this case, in particular that 6 months that I have just spoken of.”

36.  This comment must be placed in the context of a sentencing hearing where the judge had been asked to depart from the sentencing guidelines, both in respect of the initial starting point and the enhancement for the international element.  The basis for departing from the guidelines was because part of the narcotic was monoacetylmorphine hydrochloride.  The judge very firmly rejected this submission and made it clear that he would not be departing from the guidelines and would not be following what had been done by the judge in the Masham Deborah James case.

37.  In these circumstances we are not persuaded that this one sentence by the judge clearly indicates an error by him in the adoption of his initial starting point.  However, even if we are wrong in this, any successful appeal by the applicant would not result in a reduction of sentence for him.  As we have indicated, subject to the court departing from a mathematical starting point, the correct final starting point for this applicant is 21 years 7 months’ imprisonment.

38.  We cannot see any merit in the applicant’s grounds of appeal.  

Conclusion

39.  For these reasons we refused the application for an extension of time in which to apply for leave to appeal against sentence.

[1] In the Government Chemist’s second statement dated 9 February 2012, she confirmed that the monoacetylmorphine hydrochloride seized from the applicant was 6-monoacetylmorphine hydrochloride (MAM-6); which has similar potency to heroin hydrochloride in its analgesic or narcotic properties.

[2] HCCC 264/2011, unreported, 16 January 2012.

[3] [1990] 1 HKC 279

[4] HKSAR v Nwadiuto Samuel Joseph, CACC 210/2016, unreported, 25 January 2017.

[5] HKSAR v Abdallah [2009] 2 HKLRD 437

[6] CACC 143/2014, unreported, 12 December 2014.

[7] (2006) 9 HKCFAR 614

[8] R v Wong Kai Kong & Anor [1990] 1 HKC 279

[9] See the passage from HKSAR v Nwadiuto Samuel Joseph quoted in paragraph 21 ante.