HKSAR v. CRISPO VIDA MIJIDE

CACC 358/2018

[2019] HKCA 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 358 OF 2018

(ON APPEAL FROM HCCC 290 OF 2015)

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REASONS FOR JUDGMENT

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1.  On 3 August 2016, the applicant, having been committed for sentence, appeared before Deputy High Court Judge Remedios (“the judge”), as D’Almada Remedios J then was, and confirmed her guilty plea to one count of unlawfully trafficking in a dangerous drug on 29 January 2015, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The dangerous drug was 2.98 kilogrammes of a crystalline solid containing 2.93 kilogrammes of methamphetamine hydrochloride (“Ice”). On that day, she was sentenced by the judge to a term of 16 years’ imprisonment.

2.  On 5 December 2018, the applicant filed a Notice of Application for Leave to Appeal against sentence out of time (Form XI).  The application was first heard on 28 June 2019 and on that occasion I directed the respondent to provide further information regarding the extent of the applicant’s assistance to the authorities and adjourned the matter. When it came on again for hearing on 14 August 2019, the applicant was unable to be present due to illness and so her application was further adjourned to 28 November 2019.  

3.  At the hearing of the application, I refused it and said I would hand down my reasons for so doing in due course. This I now do.

The Summary of Facts

4.  The Summary of Facts, which the applicant admitted and which was used for her sentencing, revealed that on 29 January 2015, at about 12:15 pm, the applicant, a 31 years old female of Kenyan nationality, was intercepted for customs clearance at the arrival hall of Shenzhen Bay Control Point. The Ice that is the subject of the charge was found concealed in two backpacks that were contained in her suitcase. The applicant also had in her handbag US$550, RMB238.8 and two phones. The Ice had an estimated value of HK$1,266,500.

5.  When cautioned at the time of her arrest, the applicant claimed that both backpacks belonged to one “Mary” and that she, the applicant, intended to take them to Chungking Mansions where “Mary” would call her.

6.  In a video recorded interview that was conducted the next day the applicant told Customs Officers that she was living in Guangzhou and whilst there, on 28 January 2015, she had told a woman by the name of “Caro”, whom she had known for about two weeks, that she would be going to Hong Kong the following day. “Caro” asked her to bring the suitcase containing the two backpacks to her sister “Mary” at Chung King Mansions. She said that “Caro” was a white French female.

Post-arrest cooperation

7.  After her arrest the applicant agreed to participate in a controlled delivery operation by officers of the Customs and Excise Department. She had received phone calls from an unknown person on one of her mobile phones and on the instructions of Customs Officers she arranged a meeting with that person at a fast food restaurant in the vicinity of Chungking Mansions. However, this person subsequently changed the location of the meeting to another restaurant but the Customs Officers declined to go to this new location because of security concerns.

8.  On 21 July 2016 the applicant provided Customs Officers with a non-prejudicial statement in which she identified “Caro” as a woman of Kenyan nationality who was called “Ruth Mutinda Mukui”. She also now said that the person who would receive the drugs was a male called “Richie”.

9.  She also supplied Customs Officers with two photographs of Ruth and telephone numbers.

The mitigation

10.  The applicant’s counsel informed the court that the applicant was 33 years of age at the time of sentence and had an infant son in Kenya. She had a clear record in Hong Kong and had engaged in apparel trading in Guangzhou and Africa prior to her arrest.

11.  Her counsel asserted that the fact the controlled delivery was fruitless was through no fault of the applicant, as Customs Officers had refused, for security reasons, to go to a new location requested by the person who had contacted the applicant.

12.  The applicant’s counsel invited the judge to accept that the applicant had made a genuine attempt to supply useful information to the Customs and Excise Department. She had given a non-prejudicial statement to Customs Officers and provided them with two photographs of “Ruth”, two telephone numbers and an address. The applicant’s counsel conceded the latter two pieces of information were not of assistance as the telephone numbers were registered on pre-paid SIM cards and the address provided was no more than the name of a road. However, the full address was on her phone and could be provided once the applicant was given access to it.

13.  A letter written by Father John Wotherspoon (“Father Wotherspoon”) was submitted to the judge. The applicant’s counsel said that although he submitted the letter, which set out the applicant’s participation in Father Wotherspoon’s anti-drug campaign, he did not press the court for a sentencing discount as it had been held by the Court of Appeal in the case of HKSAR v Akinyi Grace Sylvia[1] that letters of this kind should be dealt with by the Executive instead of the trial judge.

14.  The applicant’s counsel invited the judge to adopt a starting point of 25 years, and to enhance it by no more than 2 years to allow for the international element.

The judge’s Reasons for Sentence

15.  Having directed herself in accordance with the guidelines in HKSAR v Abdallah[2], the judge adopted an initial starting point of 24 years and 9 months for the amount of Ice involved, which she then enhanced to 26 years and 9 months to allow for the presence of the international element.

16.  Having considered the judgment of the Court of Appeal in Akinyi Grace Sylvia, the judge refused to give any further reduction for the applicant’s claimed participation in Father Wotherspoon’s campaign.

17.  Nevertheless, the judge accepted that the applicant had provided assistance to the Customs and Excise Department by taking part in a controlled delivery which had failed through no fault of her own. Following HKSAR v Jardin Rodela Maningas[3], the judge allowed an overall sentencing discount of 40% to reflect her assistance and her guilty plea. By this route she reached a final sentence of 16 years’ imprisonment.

The applicant’s grounds of appeal

18.  The applicant was unrepresented on the leave application. She attached to her Form XI an affirmation affirmed on 4 December 2018, in which she gave two reasons to explain her delay in filing her application for leave to appeal. First, she said Father Wotherspoon had told her to wait until he was able to clarify an issue of disparity of sentencing as to why some judges would give a discount for a person’s participation in his campaign but others would not; and secondly, she was awaiting the judgment in HKSAR v Kilima Abubakar Abbas[4]. In addition, she asked to be given a further discount as she had learnt that “Ruth” had been arrested and was currently serving a prison term in Macau.

19.  In a letter filed by her dated 25 March 2019, the applicant said that, although she was aware of the 28 day time limit for appealing, she nevertheless believed that she could still appeal at any time outside that limit. Secondly, she was not aware of the judge’s error in failing to give a further discount as she was not familiar with the court procedure and, thirdly, she was overwhelmed by the length of her sentence. Lastly, she claimed that her counsel’s warning that her sentence could be increased by the Court of Appeal, instilled in her a fear of appealing.  

20.  In this letter, the applicant went on to set out her grounds of appeal. They are:

(i)      the judge erred in not giving her a further reduction of her sentence for her participation in Father Wotherspoon’s campaign;

(ii)     the Customs and Excise Department had not properly responded to her offer to assist them. The woman “Ruth” had been arrested in Macau and had Customs Officers responded expeditiously, positively and competently to her offer of assistance the woman “Ruth” could have been apprehended earlier. In these circumstances, she should be given a greater sentencing discount;

(iii)    the judge erred in enhancing her sentence for the international element as Hong Kong was part of China and so there was no international border;

(iv)    in sentencing her the judge used the guideline tariffs for heroin and cocaine, but not Ice.

21.  On 13 June 2019, the court received a letter from Father Wotherspoon in support of the applicant’s present application. He attached to it the letter written by him that was placed before the judge at the sentencing hearing, a letter written by the applicant complaining about the inaction of the Customs and Excise Department and a photo showing participation in the campaign by the applicant’s family back in Kenya.

The 1^st hearing: 28 June 2019

22.  In the first hearing, in response to my query, Ms Ma for the respondent provided me with a non-prejudicial statement dated 21 July 2016, taken from the applicant one and a half year after her arrest. Ms Ma submitted, as there was insufficient information disclosed in the statement, it was considered of no practical value. Ms Ma also confirmed that they did not make any contact with the authorities from the Mainland and Macau to enquire about Ruth’s arrest in Macau. I therefore requested the respondent to ascertain if “Ruth” was actually arrested in Macau in connection with another drug trafficking offence. I also reminded the applicant that as her present application was lodged out-of-time, she was required to provide the court with a satisfactory explanation for her delay.  

The 2^nd hearing: 14 August 2019

23.  The applicant was absent in the second hearing due to her illness. However, in a letter dated 15 July 2019 to the court, the applicant sought to explain her delay which she attributed mainly to the “errors” of the law enforcement agency in handling the information she was trying to provide. She complained that the Customs and Excise Department was not “paying attention” to what she had said and had failed to retrieve the useful information from her cell phone, despite her repeated attempts to reach out to them. With the assistance of her family, the applicant had also pinned down “Ruth” whose personal particulars and photos were also provided to the Customs & Excise Department but they did not respond to this information at all.

24.  The applicant also said that the Customs and Excise wrongfully refused her request to provide a non-prejudicial statement until she pleaded guilty, which was already one and a half years after she had been arrested. She said the Customs and Excise had done nothing in relation to what she had already told them which had adversely affected the value of her assistance.

25.  She also complained in her letter that her counsel had not acted quickly enough on her instructions and had not properly mitigated on her behalf in bringing to the judge’s attention her ongoing attempt to provide assistance.

26.  In the second hearing, Ms Ma informed me that the authority in Macau had been contacted and they had recently replied that there was no record of the arrest of “Ruth” with reference to the particulars provided by the applicant.  

The hearing of the application

27.  In preparation for this hearing Ms Ma filed a written submission in which she asserted that the failure of the controlled-delivery was through no fault of the Customs Officers and the judge treated the applicant leniently by giving her a 40% discount for her attempt to assist the Customs and Excise Department. Ms Ma informed the court that the details of Ruth had been sent to the Mainland authority who, on 4 November 2019 had replied, saying that the information provided by the applicant was not related to any drug trafficking activity, and was insufficient to lead to further investigation. Similarly, on 12 August 2019, the Macau authority replied there was no arrest of “Ruth”. Ms Ma further informed the court that attempts had also been made to contact the Kenyan Consulate in Hong Kong and the Embassy in Beijing since August 2019 but both to no avail. 

28.  At the hearing of her application the applicant relied on what she had written to the court in her various letters.

Discussion

29.  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[5]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.”

30.  In exercising this judicial discretion on whether leave should be given to appeal out of time it is necessary to look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the applicant.

31.  Because the applicant is seeking an indulgence from the court she bears the onus of placing before the court a satisfactory explanation so as to justify the court exercising its discretion in her favour.  An explanation will only be satisfactory if it reasonably explains the delay. Substantial grounds must be shown for the delay and the longer the delay the more onerous is the duty that is borne by the applicant.[6]

32.  In the present case it has taken nearly 2 years 4 months for the applicant to file her Form XI. This delay is extraordinarily long and requires a substantial and credible explanation for how it came about. To reasonably explain such a long delay the applicant’s explanation must explain the whole of the delay and must do so credibly. 

33.  The applicant was clearly aware of the time limit for appeal but chose not appeal. Her claim that, notwithstanding the existence of the time limit she thought she could appeal at any time is simply not credible. Nor do her other explanations satisfactorily explain the lengthy delay.

34.  Consequently, I am not persuaded that the applicant has provided the court with a satisfactory explanation of her delay, and she is not, therefore, entitled to the indulgence she seeks.  

35.  Nevertheless, I shall examine the merits of the proposed grounds of appeal so as to satisfy myself that by refusing the application for an extension of time I would not be shutting out a substantial and plainly arguable ground of appeal.[7]

36.  In respect of the applicant’s first complaint, it is true that the Court of Appeal did say in its judgment in Kilima Abubakar Abbas that the sentencing judge has a discretion to allow a “token discount” of a maximum of three months for post-sentence participation in Father Wotherspoon’s campaign, but it also adhered to its previously expressed view that this is a matter that the Executive is better equipped to perform. It is not reasonably arguable, therefore, that the judge erred in adopting the stance she did.

37.  The applicant’s assertion that her provision of the two pictures of “Ruth” led to the eventual arrest of this woman in Macau is contradicted by the Macau authorities. The applicant’s assistance to the authorities is not without question marks. When arrested she stated under caution that the backpacks belonged to a woman called “Mary”. The next day in a video record of interview she said that the backpacks had been given to her by her friend of two weeks, a woman called “Caro”, to give to “Caro”’s sister, a woman called “Mary”. “Caro”, she said, was a white French female. But, when she gave her non-prejudicial statement to Customs Officers she informed them that “Caro” was in fact a Kenyan woman by the name of “Ruth Mutinda Mukui” and “Mary” was a male called “Richie”. This history of her cooperation hardly supports her claim to being forthcoming and genuine in trying to assist the authorities. It is not reasonably arguable that there is any basis for her sentence to be further reduced on her account of her assistance to the authorities.

38.  The applicant’s third ground of appeal is misconceived. The “international element” is simply a short hand expression to refer to trafficking across a border. Whether the border separates two sovereign countries or, as in the present case, a Special Administrative Region of China from Mainland China is irrelevant. What matters is that there is an Immigration and Customs border across which the applicant was seeking to traffic.

39.  The applicant’s last ground of appeal, which concerns the judge’s starting point is equally misconceived. The guideline tariffs in Abdallah, which it is true deal with heroin and cocaine, were said by the Court of Appeal in a separate judgment to be appropriate for larger quantities of Ice. This judgment is HKSAR v Tam Yi Chun[8], which came into effect on 9 June 2014. In this judgment the Court of Appeal said that the same tariffs as laid down in Abdallah for over 600 grammes of heroin narcotic should apply to the same quantities of Ice narcotic.

40.  It was also held in Abdallah that the enhancement for the presence of the international element should not be less than 2 years for trafficking in quantities of drugs above 1,000 grammes. The applicant can have no cause for complaint in respect of either the starting point adopted by the judge or the 2 years’ enhancement of that starting point.

Disposition

41.  Having considered the explanations advanced by the applicant in respect of her delay in appealing and having considered the applicant’s substantive grounds of appeal and being satisfied that none of them are reasonably arguable, I was not persuaded that I should grant the applicant leave to appeal out of time and I refused her application.  

42.  I reminded the applicant of her right to renew her application before the Court of Appeal and also reminded her that should she do so, and should the Court of Appeal find no merit in her renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.