HKSAR v. NYIRENDA VINCENT CHIOMBA

CACC 221/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 221 OF 2008

(ON APPEAL FROM HCCC NO. 75 of 2008)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 12 June 2008, the applicant (D2 in the court below) pleaded guilty before Deputy High Court Judge Line to trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  This was the 2^nd count on the indictment.  In the 1^st count, Pua Che Hoong (D1) was charged with trafficking in the same quantity of drugs, namely 2,096.55 grammes of a mixture containing 1,690.12 grammes of heroin hydrochloride.  D1 also pleaded guilty. 

2.  The applicant was sentenced to 15 years and 4 months’ imprisonment against which he now seeks leave to appeal.

3.  In short, D1 was intercepted at Hong Kong International Airport on 14 November 2007 at 11.15 pm and found to be carrying the heroin in a hidden compartment in his suitcase.  The street value of these drugs was $1,398,399.

4.  D1 was a Malaysian passport holder who had flown into Hong Kong from Bangkok.  He agreed to cooperate with the authorities in making a delivery of the heroin in the manner he had intended if he had not been arrested.  Thus it was that he was allowed to make contact with a person called ‘Levit’ in Malaysia once he had rented a room in a guesthouse.  In due course, Levit was given the address where D1 was staying and D1 was later informed by Levit over the telephone that someone would come to collect the suitcase.  During the afternoon, on 15 November 2007, D1 received a local telephone call from a man with an African accent who confirmed D1’s identity.  D1 was also telephoned by Levit.

5.  At 6.10 pm, about nineteen hours after D1’s arrest, the applicant arrived outside D1’s room in the guesthouse asking for D1 by name.  D1 opened the door with the safety chain on and he then pushed the suitcase outside his room.  As the applicant tried to leave with the suitcase containing the heroin, he was immediately arrested.

6.  The applicant identified himself as ‘William Umeh’, and said he was a Nigerian born on 16 July 1960.  He said that ‘Joseph’, a friend of his, had asked him to see D1 to whom he referred as ‘Mr Poon’.  When he was searched, the applicant was found to be in possession of a Republic of Malawi identity card giving his year of birth as 1966.  This had the applicant’s picture on it and it bore the name, Nyirenda Vincent Chiomba, in which the applicant was eventually charged.  It later emerged that the applicant was an overstayer in Hong Kong.

7.  When the applicant was interviewed, he gave the same name as the one on the identity card and stated that he did not wish to answer questions.  In the agreed Summary of Facts, the following is stated:

“He (the applicant) now accepts he believed there were dangerous drugs, i.e. heroin inside the suitcase when he was at [the guesthouse].”

8.  The acceptance of guilt to the charge of trafficking was not only confirmed by the plea itself in conjunction with the facts as admitted by the applicant in court, but it was also confirmed by counsel who mitigated on the applicant’s behalf.  In the course of his speech, counsel attempted to put the applicant forward as a “local courier, not an international courier”.

9.  Not surprisingly, the judge rejected the submission that the applicant should be dealt with as a courier whose offence was purely “local”.  Hence, the same 23-year starting point was adopted for D1 and the applicant who were dealt with together.  D1 was given a 50% discount for his cooperation with the authorities without which the applicant would never have been brought to justice.  The applicant was sentenced to 15 years and 4 months after being given a one-third discount to reflect his timely plea.

10.  Several grounds of appeal were advanced by the applicant.

11.  The version he has now put forward in his 1^st ground of appeal, as to his involvement in this offence, is that he believed he was dealing in semi-precious stones when he collected the suitcase.  There is, however, no application for leave to appeal against conviction and, even if there had been, it would have been doomed to failure.  There are no grounds for allowing a change of plea.  His plea of guilty to trafficking in drugs was unequivocal.  It is abundantly clear that there was no misunderstanding about what it was that the applicant was admitting when he pleaded guilty or in the instructions he gave to his counsel for the purposes of mitigation.

12.  The remaining grounds relate to a variety of complaints by the applicant.  Briefly, these were that he had received a longer sentence than D1; that the authorities had failed to act on the telephone number of the local contact, ‘Joseph’, he had given to them when it was this person, according to the applicant, who had instructed him to collect the suitcase; that he is in poor health; and that his family is suffering as a result of his imprisonment in Hong Kong.

13.  The information given by the applicant produced, we have been informed, no tangible result.  The position regarding cooperation which results in nothing of any substance is covered in a variety of decisions.  One such authority is HKSAR v Bin Kei-chi and Anor, CACC 181/2005, where this court said:

“14.  We take this opportunity to emphasise once more, in the interests of parity in sentencing policy, that co-operation after arrest, where meaningful assistance provided has led to a tangible result, is rewarded by the courts but either an unfulfilled promise or an attempt to assist which is of no significant practical value at the sentencing stage does not carry with it the prospect of a reduced sentence.  If the situation should later change, the Court of Appeal or, as the case may be, the Executive will be in a position then to deal with the matter.”

The applicant received the usual discount for a plea of guilty.  He had no entitlement to a greater discount than this.

14.  Grounds relating to ill-health and family considerations in cases of this gravity are seldom, if ever, matters which will affect the sentence imposed.  This case is no exception although we can add that, in any event, the Senior Medical Officer at Stanley, in a report dated 6 April 2009, stated that:

“Currently, apart from minor ailments which were treated accordingly, [the applicant’s] general health condition was satisfactory.”

15.  None of these grounds had any merit.  Accordingly, this application is dismissed.