HKSAR v. ABDUL KARIM MOHAMED NAINAR

CAC C 215/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 215 OF 2013

(ON APPEAL FROM HCCC NO. 145 OF 2006)

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J U D G M E N T

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

1. The applicant, who appears in person having been refused legal aid and the assistance of the Bar Association, seeks leave to appeal out of time the sentences imposed upon him on 8 November 2006 by Deputy Judge M Poon, as she was then, following his pleas of guilty, in respect of two charges of unlawfully trafficking in ketamine, contrary to section 4 (1) (a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. By Charge 1 it was alleged that the applicant unlawfully trafficked in 4.24 kg of ketamine and by Charge 2, 5.08 kg of ketamine. The judge sentenced the applicant to 6 years and 8 months’ imprisonment in respect of each charge, ordering that the sentences be served consecutively. Accordingly, the total sentence of imprisonment imposed upon the applicant was 13 years and 4 months.

The facts

2. The applicant accepted as the factual basis for the acceptance of his pleas of guilty that the ketamine the subject of Charge 1 was contained in a DHL parcel which, after its interception by officers of Customs and Excise on 16 March 2006, had been delivered to him on the same day in a controlled delivery.  The consignee named on the parcel was Ramaswamy Raja whose address was stated to be Flat C 5, 7/F, Block C, Chung King Mansion, 36-44 Nathan Road, Tsim Sha Tsui.  The applicant produced a photocopy of a passport in the name Ramaswamy Raja, and signed ‘R.Raja’ on the delivery note to accept delivery of the parcel.  Thereafter, he was arrested and cautioned.  A search of his person revealed two keys, one of which was used to open a nearby room at another guesthouse which he had rented, namely Room 2,CI, 15/F Block C, Chung King Mansion.  Under the bed in that room was found the ketamine the subject of Charge 2.

Reasons for sentence

3. In her reasons for sentence the judge noted that the applicant had a “clear record” and that he was a married man with four children, for whom he was the breadwinner.  His family lived in India and the applicant was in Hong Kong to source second-hand mobile telephones, having arrived in Hong Kong on 14 March 2006.

4. In sentencing the applicant, the judge said that the prevailing approach in sentencing for unlawfully trafficking in ketamine was to sentence on the same basis as for ecstasy.  Of that, she said that for amounts of 800 grammes and upwards the starting point for sentence was 8 years and upwards, noting that this Court had said that an arithmetic progression to sentencing was to be avoided.  Sentencing for large quantities of ketamine was in the discretion of the sentencing judge.

Aggravating factors

5. The judge said that a factor of aggravation of the commission of the offence was the importation of the ketamine into Hong Kong.

SENTENCE

Starting point

6. In determining an appropriate overall starting point for sentence, the judge adverted to several judgments of this Court.  She noted that in HKSAR v Suen Yung Yung[1] this Court did not disprove of a starting point for sentence stipulated by the sentencing judge of 20 years’ imprisonment for a conspiracy to import into Hong Kong from Indonesia 9.75 kg of ecstasy.  Next, she observed that in HKSAR v Leung Ka Yin[2] this Court had dismissed an application for leave to appeal against sentence where the sentencing judge had taken a starting point for sentence of 18 years’ imprisonment for unlawfully trafficking within Hong Kong in 7.11 kg of ecstasy, noting that the applicant was a repeat offender for unlawful trafficking in dangerous drugs.  Finally, in HKSAR v Tsang Wai Kei[3] this Court described as lenient a sentence of 8 years’ imprisonment imposed on an applicant for unlawfully trafficking in 4.9 kg of ketamine within Hong Kong, where the judge had taken a starting point of 12 years imprisonment which he had discounted by one-third for the applicant’s plea of guilty.

7. Noting the close proximity in time in the commission of the two offences, the judge said that she had regard to the overall weight of the ketamine in the two charges in determining that the appropriate starting point for sentence was 20 years’ imprisonment.

Discount

8. Having regard to the applicant’s plea of guilty the judge said that she afforded the applicant a discount of one-third from that taken for the starting point.

Sentence

9. Accordingly, the judge determined that the appropriate totality of sentence was 13 years and 4 months’ imprisonment.  Then, she said that she “apportioned” that sentence between the two charges.  In the result, she imposed a sentence of 6 years and 8 months’ imprisonment in respect of each charge, ordering them to be served consecutively.

Application out of time

10. In the applicant’s attachment to Form XI, by which notice was given on 21 June 2013 of the application for leave to appeal against sentence out of time, the applicant acknowledged that he needed to explain the circumstances in which his application was made out of time.  He asserted that at the time of sentence he was “new for these court procedures” and that the imposition of the sentence of 13 years and 4 months’ imprisonment had caused him “a lot of emotion”, so that he did not know what to do and had nobody to help him.  He did not know the procedure.

Grounds of appeal against sentence.

11. In his grounds of appeal against sentence, detailed in Form XI, the applicant submitted that the sentence was “too severe, when compared to other cases”.  Further, he said that in consequence of the sentence of imprisonment his family, whom he was unable to see, had been caused hardship.  He asked that the sentences imposed in respect of the two charges be ordered to be served concurrently.

12. In further grounds of appeal, attached to a Notice of Motion filed on 12 September 2013, the applicant contended: first, that he had been misled into pleading guilty on the advice of his counsel; secondly, that the judge had not considered the fact that the parcels were not addressed to him or to his address; thirdly that the judge ought to have found him guilty of simple possession of the ketamine only; and finally, that the judge had failed to take account properly of the mitigating factors, in particular that he was the breadwinner for his family.

13. In additional grounds of appeal, filed on 27 September 2013, the applicant submitted that the judge had erred in not taking into account the fact that he had no previous criminal convictions.  Next, he asserted that other defendants[4] sentenced in the period 2004/2005 for unlawfully trafficking in larger amounts of ketamine had been sentenced to lesser sentences of imprisonment than that imposed upon him.

DISCUSSION

Application out of time: extension of time

14. As Ms Anna Lai pointed out in her helpful written submission, this court’s approach to an application for an extension of time in which to make an application for leave to appeal against conviction out of time is well-established. In the judgment of this court in R v Wong Kai Kong[5], Silke VP said:

“In considering whether the applicants should be granted the indulgence they seek it is first necessary for us to consider not only the reasons advanced in the grounding affidavits for the failure timeously to make application but also the period of time which has elapsed between the conviction and the application – here, as we have indicated, ten months – and generally the bona fides of the applicant.”

15. Silke VP went on to state that, in addition, the court was alive to the need to have regard to the grounds of appeal, to ensure:

“that by refusing leave to appeal we were not shutting out a substantial and plainly arguable ground of appeal.”

16. Of the approach of the court to its task, Silke VP said:

“In this exercise this Court should bear in mind that substantial grounds must be shown for the delay before the granting of the indulgence. The longer the delay the more onerous is the duty on the person making application.”

17. There is no dispute that the applicant was represented by counsel, instructed by the Director of Legal Aid, at the sentencing hearing.  Undoubtedly, that had come about as a result of the applicant seeking representation through legal aid.  In 2006, although the applicant was a relative stranger to Hong Kong he had managed to avail himself of the assistance given to persons in his position to be represented in criminal proceedings.  The applicant advanced no plausible explanation as to why he was unable to seek such assistance following the imposition of sentences on him by the judge on 8 November 2006 or why it was that fully 6½ years passed before he launched these proceedings, in which he also sought legal aid.  The plethora of documentation which the applicant has served on the court in the few months following his filing of Form X1 in June 2013 evidences a familiarity with the court’s procedures.  We are not satisfied that there is an acceptable explanation for the inordinate delay in seeking leave to appeal out of time.

Notice of motion: fresh evidence pursuant to section 83 V (1) of the Criminal Procedure Ordinance, Cap. 221. 

18.  In addition, we are not satisfied that it is appropriate that this court should receive the additional evidence that the applicant seeks to put before the court today.  That material comprises some medical records and family letters of an intimate nature.  We are not satisfied that the material would assist us in the resolution of this application.

Grounds of appeal against sentence

19. The apposite guidelines for sentencing for unlawfully trafficking in ecstasy in 2006 were those articulated in the judgment of this Court in HKSAR v Lee Tak Kwan[6]. As the judge noted, those guidelines called for unlawfully trafficking in over 800 grammes of ecstasy to be visited with sentences of 8 years and upwards.  Moreover, as the judge adverted to, the court went on to say:[7]

“An arithmetic progression of trafficking in much higher quantities than 800 g should be avoided. The sentence in such cases must be entirely within the discretion of the judge depending on the circumstances.

Some increase in the levels would be justified, for example where there is evidence of importation or manufacture or other aggravating circumstances in which the accused is responsible.”

20. In the Secretary for Justice v Hii Siew Cheng[8] this Court provided new guidelines for sentencing for unlawfully trafficking in both ketamine and ecstasy, effective from the date of that judgment, 6 June 2008.  As the court noted, and as was the case for the respondent in that case who had been sentenced on 12 June 2006, it was the practice of judges to adopt the guidelines for sentencing for unlawfully trafficking in ecstasy, as articulated in Lee Tak Kwan, in imposing sentence for unlawfully trafficking in ketamine.  It is to be noted that HKSAR v Siu Wai Kam[9], in which this Court was concerned with sentences imposed by a judge who had followed that practice in respect of ketamine, Stock JA, as he was then, noted, “It is not suggested by the respondent, for the purposes of this appeal, that that approach was incorrect.”  It follows that, in adopting those guidelines, in sentencing the applicant in November 2006 the judge was following the prevailing sentencing practice.

21. In HKSAR v Siu Wai Kam the defendant pleaded guilty to 2 charges of unlawfully trafficking.  Charge 1 concerned 1.72 kg of ketamine, 33.45 grammes of cocaine and 0.96 grammes of cannabis found in a vehicle which he was driving in Hoi Sing Road in June 2002.  Charge 2 concerned 5.134 kg of ketamine found in his home.  In quashing the sentences imposed by the Recorder, Stock JA said that the appropriate starting point for each of the charges was 15 years’ imprisonment and that, having regard to totality, the overall starting point in the order of 18 years’ imprisonment was appropriate.[10] Of course, as Ms Lai reminded the court in her written submissions, it is to be noted that the circumstances of the commission of those offences did not involve importation into Hong Kong by the applicant.

22. The two cases referred to by the applicant of other defendants sentenced for unlawfully trafficking in large amounts of ketamine, HKSAR v Lee Beng Leong and HKSAR v Toh Hong Chian, were sentences imposed in the Court of First Instance, but not reviewed by this court.  In the former case, on his pleas of guilty, the defendant was sentenced in respect of two charges of unlawfully trafficking in ketamine, found in different hotel rooms in Hung Hom on the same date.  One charge concerned 13.33 kg of ketamine and the other 28.14 kg of ketamine.  Having referred to the judgment of this court in HKSAR v Siu Wai Kam, Beeson J stipulated a starting point for sentence of 21 years’ imprisonment, which she discounted by one-third for the defendant’s pleas of guilty and an additional two years for his cooperation with the authorities and the consequent risks to the defendant, so that the sentence imposed on the defendant was 12 years’ imprisonment.

23. In HKSAR v Toh Hong Chian the defendant was sentenced after his plea of guilty to unlawfully trafficking in 16.7 kg of ketamine found in his hotel room.  Deputy Judge Line, as he was then, said that the defendant’s role was that of a courier, but accepted that the defendant had not been involved in importing the ketamine into Hong Kong.  Having stipulated a starting point for sentence of 20 years’ imprisonment, the judge sentenced the applicant to 13 years’ imprisonment.

24. Although those cases involved unlawful trafficking in greater amounts of ketamine than that in which the applicant trafficked unlawfully, neither case is of assistance to the applicant.  In each case, the aggravating factor of importation of the ketamine into Hong Kong was absent.  In the former case, the applicant had put his safety at risk in cooperating with and assisting the authorities.

25. It is clear that the judge was aware of the clear record of the applicant and the hardship that would be visited to him and his family following his imprisonment.  As this Court has said on numerous occasions the latter factors carry little or no weight in offences of such gravity.  In the judgment of this Court in HKSAR v Hong Chang Chi Stuart-Moore VP said:[11]

“Drug traffickers from abroad, importing drugs into Hong Kong, should plainly understand that they will receive no sympathetic consideration whatsoever on account of their status as foreigners or, as in this case, on account of their incarceration some distance from home. On the contrary, in cases of this kind, the very act of importation from abroad, is an aggravating factor. Those who live outside this jurisdiction, such as the Applicant in the present case, must be disabused of any notion that Hong Kong is anything other than resolute in dealing with such offences.”

26. We are satisfied that the sentences imposed on the applicant, and the order that they be served consecutively, were entirely appropriate.  There is no merit in any of the proposed grounds of appeal raised by the applicant.

Conclusion

27. Accordingly, we dismiss the applicant’s application for leave to appeal against sentence out of time.

Loss of Time

28. Having dismissed the application for leave to appeal against sentence out of time, there being no acceptable explanation for the inordinate delay in making the application and no merit in any of the proposed grounds of appeal, we invited the applicant to address the court as to why it should not invoke its power under section 83W of the Criminal Procedure Ordinance, Cap. 221. In short, he simply asked that the court make no such order.

29. We are satisfied that it is appropriate to invoke our power under section 83W of that Ordinance.  In consequence, we order that one month of the time in which the applicant has been in custody pending determination of his application for leave to appeal against sentence out of time shall not be reckoned as part of the term of the sentence to which he is for the time being subject.

[1] HKSAR v Suen Yung Yung (CACC 509/2001; unreported, 1 August 2003.)

[2] HKSAR v Leung Ka Yin (CACC 145/2005; unreported, 1 September 2005.)

[3] HKSAR v Tsang Wai Kei (CACC 452/2002; unreported, 27 June 2003.)

[4] Mr Lee, prisoner number 299004; Mr Toh Hong Chian, prisoner number 288210; identified by the respondent as HKSAR v Lee Beng Leong (HCCC 249 & 274/2005, 29 May 2006) and HKSAR v Toh Hong Chian (HCCC 168/2005,12 September 2005) respectively.

[5] R v Wong Kai Kong [1990] 1 HKC 279.

[6] HKSAR v Lee Tak Kwan [1998] 2 HKC 371.

[7] HKSAR v Lee Tak Kwan page 378 I.

[8] Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

[9] HKSAR v Siu Wai Kam [2003] 3 HKC 338.

[10] HKSAR v Siu Wai Kam; page 332 F-H, paragraphs 16-18.

[11] HKSAR v Hong Chang Chi [2002] 1HKLRD 486 at page 493G-I, paragraph 22.