HKSAR v. CONDE ABOUBACAR

CACC 508/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 508 OF 2012

(ON APPEAL FROM DCCC 497 OF 2010)

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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 seeks leave to appeal out of time against a sentence of 6 years’ imprisonment imposed upon him by District Court Judge Geiser on 25 October 2010, following his conviction after trial of a charge of trafficking unlawfully in a dangerous drug, namely 20.55 grammes of monoacetylmorphine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The facts

2.  The applicant was detained on his arrival in the evening of 11 February 2010 at Hong Kong International Airport on an Ethiopian Airlines Flight from Bangkok.  He was travelling on a Guinean passport.  On and between 12 and 15 February 2010, whilst detained at the custodial ward of Queen Elizabeth Hospital, he discharged 53 pellets which contained the monoacetylmorphine the subject of the charge.

The trial

3.  The applicant gave evidence at his trial.  His case was that he had a mobile telephone business in Nigeria and had travelled from there to Bangkok in order to buy mobile telephones.  Whilst there he was kidnapped and, in face of threats to the lives of his wife and family, he had been forced to swallow the pellets, the contents of which he was unaware.  He said that he was provided with an airline ticket to Hong Kong and taken to the airport in Bangkok.  He was told someone would pick him up on his arrival in Hong Kong and take him to where he could buy mobile telephones.

Reasons for sentence

4.  In his reasons for sentence the judge noted that the applicant had ingested the pellets prior to his arrival in Hong Kong and found that the applicant had come to Hong Kong for the specific purpose of trafficking in the dangerous drugs found in his person.  He determined the applicant to be “a drug mule who is acting for reward”.  The judge determined that there was a “direct connection” between the US$4,000 found on the applicant and his commission of the offence.

5.  Noting that the guidelines for sentence in respect of heroin provided for a range of sentence from 5 to 8 years for amounts in the band of 10 to 50 grammes, the judge sentenced the applicant to 6 years’ imprisonment.  In addition, he ordered the “confiscation” of $4,000, but did not state pursuant to which power he made that order.

Grounds of appeal against sentence out of time

6.  Although the applicant was convicted and sentenced on 25 October 2010, he did not lodge a notice of application for leave to appeal against sentence out of time in Form XI until 21 December 2012.  In an affirmation filed together with the notice the applicant addressed the issue of the fact that his application was out of time, asserting simply that he was a “foreigner” and that he did not “know exactly the steps for court”. In that affirmation he submitted that the sentence imposed upon him was,

7.  In several letters addressed to the court sent in 2013 the applicant repeated his explanation for making his application out of time.  In a letter dated 27 March 2013, he asserted, “I do not know what to do because from beginning, I am so much confuse how to start my application”.

8.  In a letter dated 16 July 2013 the applicant asserted, in respect of the order that the US$4,000 found upon him be confiscated, that the money had no connection with the offence.  The reward that he had been promised for delivering the dangerous drugs was to be paid after he had finished the job.  The US$4,000 was money that belonged to him and his family and was to have been used to buy goods to do business in Africa.

9.  Today, in his oral address to the court the applicant has addressed both twin issues: he submitted that the sentence imposed upon him was “harsh” and he repeated the contention that the US$4,000 was his and his family’s property and not that the reward for bringing the dangerous drugs to Hong Kong.

A consideration of the submissions

Application out of time

10.  The delay of almost 26 months from the date on which sentence was imposed on the applicant to the date on which he filed a notice of application for leave to appeal against sentence out of time is in no way satisfactorily explained by the applicant.  It is a bare assertion which beggars belief.

Sentence

11.  An arithmetic application of the guidelines for sentence for unlawful trafficking in heroin articulated by this Court in The Queen v Lau Tak Ming[1]suggests that the appropriate sentence to be imposed upon the applicant was about 6 years’ imprisonment.  In addition, the fact that the applicant was importing the dangerous drugs into Hong Kong is a factor of aggravation in respect of sentence[2].  Accordingly, we are satisfied that the sentence of 6 years’ imprisonment was entirely appropriate.

Forfeiture of the US $4,000

12.  In his reasons for verdict the judge noted that the applicant had testified that he had arrived in Thailand with US$5,000, which monies his kidnappers had taken from him, returning US$4,000 together with an airline ticket to Hong Kong.  By contrast, in a record of interview[3] after caution made on 12 February 2010 the applicant said that he had been asked to swallow the pellets in Thailand and was to be rewarded after he handed over the pellets.  In cross-examination, the applicant denied that the specific suggestion that the US$4,000 was his reward or part of his reward for bringing the dangerous drugs into Hong Kong[4].

13.  In his findings[5] the judge noted that in the record of interview the applicant had made no mention of being forced to swallow the pellets, observing of the applicant that he, “admits that he was acting for a reward”.  Of that, he said, “the possession by the defendant of US$4,000 I find to be probative of this fact.”

14.  In the application made by the prosecution for forfeiture of the US$4,000 counsel indicated that the application was made pursuant to section 102 of the Criminal Procedure Ordinance, Cap. 221 and under the Dangerous Drugs Ordinance, Cap. 134 on the basis put to the applicant in cross-examination, namely that the monies were his reward or part of his reward for bringing the dangerous drugs to Hong Kong.

15.  No doubt, it was to that application that the judge referred in his remarks in sentencing when he said[6]:

“ There is an application for the exhibits to be confiscated and dealt with in terms of the application that was made before me this morning. I make an order in terms of that application which includes an order for the confiscation of Exhibit P2 which is the US$4,000 for the reasons that I have already given.”

Earlier, the judge had said[7]:

“ There is no direct evidence that the US$4,000 found on you at the time of your interception was your reward but I found in my reasons for verdict that they are probative of the fact that you were acting for a reward and I have rejected your story that you went to Thailand in order to purchase mobile phones. There is, in my view, a direct connection between the money found in your possession and the offence for which you stand convicted.”

16.  Section 56 of the Dangerous Drugs Ordinance provides that:

“ (1) A court may (whether or not any person has been convicted of such offence) order to be forfeited to the Government-

(a) any money or thing (other than premises, a ship exceeding 250 gross tons, an aircraft or a train) which has been used in the commission of or in connection with;

(b) any money or other property received or possessed by any person as the result or product of, an offence under this Ordinance or a drug trafficking offence within the meaning of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405).”

17.  Section 102 of the Criminal Procedure Ordinance provides:

“ (1) Where-

(a) …;

(b) it appears to a court that an offence has been committed in respect of any property in the possession of the court, the police or the Customs and Excise Service; or

(c) it appears to a court that any property in the possession of the court, the police or the Customs and Excise Service has been used in the commission of an offence,

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section.

(2) Of its own motion or upon application, a court may-

(a) ….; and

(b) in respect of property to which subsection (1)(b) or (c) applies-

(i) …; or

(ii)     make an order for the forfeiture of the property.”

18.  Clearly, the judge had power to make an order of forfeiture pursuant to section 56(1)(b) of the Dangerous Drugs Ordinance or section 102(2)(b)(ii) of the Criminal Procedure Ordinance.  In any event, as counsel for the respondent has pointed out today in oral argument, the judgment of this court in The Queen v Lai Chin Hung[8] makes it clear that section 56(1) clearly envisages an order of forfeiture might be made even though the particular charge in connection with which the money had been seized had failed.  In the judgment of the court, McMullin JA said[9]:

“ Whenever the court has evidence before it sufficient to justify an inference that money or other property, seized in connection with the charge it is asked to try, is connected with an offence, then, whether or not it finds the offence charged has been proved it may, nevertheless make the order. If there is prima facie evidence of such a criminal connection then if no innocent explanation is offered the court may - though it would not necessarily do so - find that the connection with an offence has been established.”

19.  In all circumstances, it was entirely appropriate to make a forfeiture order.

Conclusion

20.  As noted earlier, we are not satisfied that the applicant has advanced adequate reasons for making his application for leave to appeal out of time, such that would justify an extension of time.  However, in any event, as is apparent from the above analysis, we are satisfied that there are no merits in the application for leave to appeal against sentence.  Accordingly, the application for leave to appeal against sentence out of time is dismissed.

[1]  HKSAR v Lau Tak Ming[1990] 2 HKLR 370.

[2] HKSAR v Abadallah [2009] 2 HKLRD 437; at page 450, paragraphs 330-1.

[3] Appeal bundle, page 22.

[4] Transcript, page 79 G - K.

[5] Reasons for Verdict, paragraph 32.

[6] Appeal bundle; page 16, paragraph 4.

[7] Appeal bundle; pages 15- 16, paragraph 2.

[8] The Queen v Lai Chin Hung [1980] HKLR 115.

[9]  The Queen v Lai Chin Hung, page 119.