HKSAR v. RAWE WAIKAMA MAGARYA

CACC 215/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 215 OF 2014

(ON APPEAL FROM HCCC 446 OF 2013)

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

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

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

REASONS FOR JUDGMENT

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

Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1.  On 18 April 2013, the applicant, who is from Tanzania, arrived at the Hong Kong International Airport on a flight inbound from Addis Ababa.  He had heroin concealed within his body cavity which was later discharged by him.  He was subsequently charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The charge alleged that on 18 April 2013 he unlawfully trafficked in 0.81 kilogramme of a mixture containing 0.38 kilogramme of heroin hydrochloride.

2.  The applicant pleaded guilty to this offence in the magistracy and was committed for sentence to the High Court.  On 16 January 2014 he appeared before Madam M Poon J (“the judge”) and was sentenced to 10 years 8 months’ imprisonment.  Additionally the judge ordered that half of US$3,000 found in the possession of the applicant be returned to him and that the remainder be confiscated.

3.  The applicant subsequently applied out of time to appeal the order of confiscation.  On 30 September 2014 Yeung VP granted him leave to appeal and on 25 November 2014 his appeal was heard by the Court of Appeal which allowed the appeal and quashed the order of forfeiture of US$1,500.  On 12 February 2015 the applicant filed with the court another Form XI by which he applies for an extension of time in which to give Notice of Application for leave to appeal his sentence.  By this application he seeks an extension of time in order to appeal against the sentence of imprisonment that was imposed upon him. 

4.  At the hearing of the appeal we refused the application and said we would give our reasons for so doing later the same day.  These are our reasons.

The background to the offence

5.  In a Summary of Facts that was used for the purpose of sentencing, the applicant admitted arriving at Hong Kong International Airport on the flight inbound from Addis Ababa on 18 April 2013.  In the course of Customs clearance he was suspected of internal concealment of drugs and was sent to Queen Elizabeth Hospital where examination of him confirmed the presence of foreign objects in his body cavity.  The applicant was detained at the hospital and subsequently discharged 56 packages containing the dangerous drugs the subject of the charge.  These dangerous drugs had an estimated retail value of HK$652,860.

The sentencing hearing

6.  At the applicant’s sentencing hearing his counsel informed the court that the applicant was then 34 years of age and was married with two young children, aged 2 and 5.  The applicant had a history of running a small business in Tanzania involving the selling of second-hand clothing and the operation of a taxi.  Unfortunately, for a number of different reasons, his businesses collapsed and he found himself in financial difficulties.  He decided to resume his visits to China to buy clothing to get back into that business and was tempted by an offer to make some easy money by smuggling drugs into Hong Kong.

7.  Through his counsel the applicant informed the court that he was offered a reward of US$6,000 for the trafficking but claimed that none of this money had yet been received by him.  It was said that the applicant was to be paid only upon successful delivery of the drugs.  He also, through his counsel, expressed remorse for his actions.

The Reasons for Sentence

8.  After referring to the facts of the case and the personal mitigation of the applicant, and his expression of remorse, the judge noted that the sentence would have to be based essentially upon the weight of the narcotics and the guilty plea.  She referred to the tariff as laid down by the Court of Appeal in R v Lau Tak Ming & ors [1990] 2 HKLR 370 for trafficking between 200 grammes to 400 grammes which is 12 to 15 years’ imprisonment.  As the applicant was trafficking in 0.38 kilogramme of narcotics the judge adopted a starting point of 15 years’ imprisonment.  In accordance with the Court of Appeal’s decision in HKSAR v Abdallah [2009] 2 HKLRD 437 she then enhanced that starting point by one year to take into account the international element.  From that final starting point of 16 years the judge then awarded the applicant the one-third discount for his guilty plea.  By this route she reached a final sentence of 10 years and 8 months’ imprisonment and that is the sentence which she imposed upon the applicant.

The application for an extension of time

9.  The applicant has attached to his Form XI an affirmation in which he said he would “like to request to you ‘assistance’ for initial appeal procedure.”  There is nothing in his affirmation which explains why it is that he has delayed so long in appealing his sentence and no explanation for why he did not raise at the time of his appeal against the confiscation order any complaint he might have had in respect of the sentence of imprisonment that was imposed on him.  However, in a letter to the court dated 28 May 2015 he wrote:

“The reason why my appeal delayed is because in the recommended period for appeal I was not having precedent cases to support my grounds of appeal.”

10.  It is clear from his letter that what he means by precedent cases is examples of fellow prisoners convicted of drug trafficking being treated more leniently than himself.  In this respect he cites the following three cases:

Case name	Case No.	Narcotic weight	Sentence
Mbarak Mohamed Salum	HCCC422/2011	0.28kg of heroin and 0.18kg of cocain	10 years
Abood Yasswer Ali	HCCC543/2013	0.47kg of heroin	10 years
Mohamed Abdulraheem Sadiq Hussein	HCCC544/2013	0.42kg of heroin	10 years
Present case		0.38kg of heroin	10 years and 8 months

11.  Though he accepts that the sentence imposed upon him is in accordance with Hong Kong law he is aggrieved that others who trafficked in greater quantities of narcotic than he have been treated more leniently.

12.  Also in his letter of 28 May 2015 he expresses remorse for what he has done and refers to the suffering and hardship that his family now has to endure as a consequence of his lengthy incarceration.

13.  Before us today the applicant repeated what he had said in his letter of 28 May 2015.  When asked why he did not use the opportunity of his Court of Appeal hearing on 25 November 2014 to raise his complaints in respect of the length of his sentence of imprisonment he said he did not at that time have knowledge of the precedent cases and did not enjoy the advantage of legal representation to assist him.  He also referred us to one more “precedent case”.  It is HKSAR v Zuberi Zuberi Mussa HCCC 146/2012.  That case involved very similar facts to this applicant.  In that case the defendant arrived on a flight from Addis Ababa with 380 grammes of heroin hydrochloride in his abdominal cavity and was sentenced to 9 years’ imprisonment.

Discussion

14.  The applicant is, effectively, a year out of time.  This is a substantial period of time.  The law is clear.  The applicant is seeking an indulgence from the court and he bears the burden of providing substantial grounds that reasonably explain his delay.  The longer the delay the more onerous is the duty on the applicant to show substantial grounds for it.[1]  

15.  In our view the applicant has not produced to us substantial grounds which provide a reasonable explanation for the delay in this matter and for that reason alone we would not be minded to grant him an extension of time.  It is not a sufficient explanation that it has taken sometime to conduct a trawl of the prison population to find examples of more lenient sentences imposed upon other drug traffickers. 

16.  However, there is another important reason why we would not grant him the extension of time he seeks.  This is because the applicant has previously appealed his confiscation order and as an appeal against a confiscation order has always been treated as an appeal against sentence, he has exhausted his right of appeal.  If this is right then the Court of Appeal simply does not have jurisdiction to hear any further appeal against sentence from him. 

17.  The argument that by his confiscation order appeal he has exhausted his right of appeal against sentence is based upon the construction of section 80(1) of the Criminal Procedure Ordinance, Cap 221 which provides:

“‘Sentence’, in relation to an offence, includes any order made by a court in dealing with an offender, including a hospital order.”

18.  If an order forfeiting the property of a defendant, is an “order made by a court in dealing with an offender”[2] then it is part of his sentence.  There is no doubt that this is how this definition provision has been consistently applied.[3] Even the Form XI reflects this understanding as it describes the application as being an application for “Leave to appeal against SENTENCE (CONFISCATION ORDER).”

19.  When an appellant appeals against a sentence then that sentence, and any other sentence imposed on him at the same time for any other offence, are before the Court of Appeal.  That is clear from section 83I(2) of the Criminal Procedure Ordinance which provides:

“Where the court, in dealing with an offender on his conviction on indictment, or in a proceeding to which section 83H(2) applies, has passed on him 2 or more sentences in the same proceeding (which expression has the same meaning in this subsection as it has for the purposes of section 83H), being sentences against which an appeal lies under section 83G or 83H, an appeal or application for leave to appeal against any one of those sentences shall be treated as an appeal or application in respect of both or all of them.”

20.  When the definition of “sentence” is read with section 83I(2) the consequence is that all orders made by a court in dealing with an offender are also before the Court of Appeal when it hears an appeal against sentence. 

21.  Furthermore, all sentences and orders are before the Court of Appeal whether or not the appellant intends to appeal against them.  This is clear from the decision of the Court of Appeal in HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903 where the Court of Appeal considered section 83I(2) of the Criminal Procedure Ordinance and at page 912 paragraph 14, it said:

“14. It is clear by section 83I(2) of the Criminal Procedure Ordinance (Cap. 221), it is not possible to selectively appeal against one sentence where two or more sentences have been passed against the applicant in the same proceedings:

… [Section 83I(2) quoted]

15. By this provision, any application or appeal in relation to one of them will activate a similar application or appeal against the others and the Court of Appeal can review all the appealable sentences whether or not this is desired by the appellant.  See Taylor on Appeals (2000 Ed) paragraph 10–024 citing section 11(2) of the UK Criminal Appeal 1968. The Hong Kong and the English provisions are similarly worded except in Hong Kong under section 83I(3), the Court of Appeal may impose a sentence which is more or less severe than the original sentence while the English section 11(3) prohibits the appellant from being dealt with more severely (taking the case as a whole) than below.”

22.  The effect of section 83I(2) and of the decision of the Court of Appeal in Tran Viet Thanh construing it, is that the sentence of imprisonment which the applicant received in this case was before the Court of Appeal when it came to consider the forfeiture order made by the judge in respect of monies found in this applicant’s possession.  That the Court of Appeal did not consider that sentence is not relevant to the issue of whether it was before the court.  As a matter of law it was before the court and so the appeal in respect of it took place at that time.  A convicted person is not entitled to appeal to the Court of Appeal on more than one occasion[4] and so he has, by virtue of section 83I(2) exhausted his right to appeal in respect of his sentence.

23.  The conclusion that the Court of Appeal no longer has jurisdiction to hear an appeal against sentence from this applicant is based upon an assumption that the earlier hearing by the Court of Appeal in which it quashed the forfeiture order was, in law, an appeal against sentence. Whether that assumption is correct depends upon the construction of the definition of “sentence”. 

24.  We are unaware of any decision by the Court of Appeal where it has pronounced upon the construction of this definition provision after having had the benefit of argument on it.  As the present applicant is unrepresented that is not a benefit which we enjoy either.  That being so we have felt that notwithstanding the past practice of the court in treating forfeiture orders as part of the sentence and an appeal against a forfeiture order as being an appeal against sentence, we shall, nevertheless, consider the merits of the application on the assumption the Court of Appeal has jurisdiction to hear an appeal by the applicant against his sentence.

25.  After a consideration of all of the applicant’s complaints we can find no error by the judge or excessiveness in the sentence.  The applicant’s remorse and the hardship to his family do not provide a proper basis for us to interfere with his sentence. 

26.  That just leaves his complaint of disparity of sentence.  We have obtained the Reasons for Sentence in the three cases to which the applicant has referred in his letter of 28 May 2015 and of the case to which he referred us in the course of the hearing.  In the three cases referred to in his letter the judge was the same and there is no doubt that, in his discretion, this judge extended greater leniency to the offenders before him than other judges might have done.  In the fourth case the judge was different and for different reasons reached a final sentence that was less than that imposed upon the applicant. 

27.  The guidelines laid down by the Court of Appeal in drug trafficking cases consist of sentencing ranges for different quantities of narcotic.  These are designed to guide the judge in his adoption of a starting point.[5] Additionally the Court of Appeal has provided guidance on what should be regarded as aggravating factors and has laid down ranges of periods of imprisonment by which a starting point should be enhanced to take account of the presence of an aggravating factor.[6]  One such aggravating factor that has been identified by the Court of Appeal is that the dangerous drugs have been trafficked across international borders.  This aggravating factor is commonly referred to as the international element.

28.  The purpose of the Court of Appeal’s guidelines are to produce consistency in the approach to sentence; not to produce identical sentences.  They are not intended to deprive a judge of his sentencing discretion even though they may, through the creation of weight of narcotic based tariff sentencing ranges, impose constraints on the operation of that discretion.  There always remains some room for the exercise by individual judicial officers of their sentencing discretion. 

29.  The Court of Appeal has repeatedly emphasized that achieving consistency of approach is a completely different matter from laying down a mathematical formula which takes the judge’s sentencing discretion out of the equation and automatically produces an identical sentence for every offender who traffics in the same amount of narcotic.  The sentencing regime for drug traffickers remains an individualized one.  Consequently, there will inevitably be differences in the sentences imposed on different offenders. 

30.  As the applicant himself acknowledges there is nothing erroneous or excessive in the sentence imposed upon him.  What the applicant has to understand is that a perfectly proper sentence does not become excessive simply because other offenders in completely separate cases have been sentenced more leniently by different judges.[7]

31.  Even if the earlier appeal against the forfeiture order was not an appeal against sentence and the Court of Appeal has jurisdiction to consider an appeal from the applicant in respect of his sentence of imprisonment, an issue on which we make no decision, we would still refuse this application on the basis that the applicant has not placed before the court a sufficient explanation for his delay and there is no merit in any of the complaints which he wishes to advance before the court in respect of his sentence.

Conclusion

32.  For these reasons we refused the applicant his application for an extension of time in which to appeal his sentence.

[1] See R v Wong Kai Kong [1990] 1 HKC 279 and HKSAR v Oh Chun Kit [2013] 1 HKLRD 437.

[2] The contrary argument is that it is an order made by a court in dealing with property found in the possession of an offender.  Such an approach might arguably be more in line with the judgment of the Court of Appeal in Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877 where Bokhary J, in a separate judgment from the court, described an application for forfeiture as a civil proceeding in rem against the thing sought to be forfeited.

[3] See, for example, HKSAR v Shoki Fatuma Ramadhani [2015] 2 HKLRD 696 and indeed the earlier proceedings of this applicant.

[4] See Pinfold (1988) 87 Cr App R 15 where Lord Chief Justice Lane in giving the judgment of the English Court of Appeal said at page 17 that even though there was nothing on the face of the English Criminal Appeal Act 1968 “which says in terms that one appeal is all that an appellant is allowed … in the view of this Court, one must read those provisions against the background of the fact that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings …”

[5] In the present case the relevant Court of Appeal decision is R v Lau Tak Ming & ors [1990] 2 HKLR 370.

[6] See HKSAR v Abdallah [2009] 2 HKLRD 437 as supplemented now by HKSAR v Chung Ping Kun [2014] 6 HKC 106.

[7] See the judgment of the Court of Appeal in HKSAR v Ng Man Yee [2004] 4 HKC 241 for a discussion of the limits on disparity of sentence as a ground of appeal.