HKSAR v. LOUA CECE

CACC 328/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 328 OF 2014

(ON APPEAL FROM HCCC NO. 410 OF 2009)

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the court):

1.  On 11 December 2009, the applicant pleaded guilty before Eastern Magistrate’s Court to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the High Court for sentence and, on 28 January 2010, sentenced by V Bokhary J to 14 years and 8 months’ imprisonment. This result was achieved by discounting the appropriate notional sentence of 22 years’ imprisonment after trial by one third.

2.  He now applies for leave to appeal against his sentence out of time, having filed notice of his intention to seek leave to appeal on 26 September 2014, by which time he was more than 4½ years out of time.

3.  Before examining the reasons for his late application, we should set out the nub of his complaint in relation to the sentence he received, since there is in this case an obvious and particular inter-relation between these issues.

The facts

4.  The facts giving rise to the applicant’s sentence are depressingly familiar.  The applicant, who was 29 at the time of the offence and a Guinean national, arrived in Hong Kong on a flight from Bangkok on 21 April 2009.  Although nothing was found in his luggage or on his person upon arrival, the applicant was found to be acting nervously, as a result of which he was taken to Queen Elizabeth Hospital for medical examination.  When, upon X-ray screening, numerous foreign objects were found in his stomach, the applicant was arrested and cautioned, whereupon he replied “Drugs, I don’t want jail”.  Over the course of the next seven days, the applicant discharged in the custodial ward of the hospital 91 pellets of dangerous drugs amounting to 884.21 grammes of a mixture containing 634.22 grammes of heroin hydrochloride.  During a subsequent record of interview, the applicant confirmed the answer he had given under caution upon his arrest but had nothing further to say.

The grounds of appeal

5.  In his home-made grounds of appeal, the applicant has averred that there are several other cases, both at first instance and upon appeal, where the enhancement for the international element involved in trafficking into Hong Kong of similar quantities of heroin hydrochloride has been no more than one year imprisonment, bearing in mind that this Court in HKSAR v Abdallah [2009] 2 HKLRD 437 has stipulated that the enhancement for this factor for amounts above 1 kilogramme of heroin narcotic should not be less than 2 years’ imprisonment.  Therefore, he says that if the starting point for the quantity of 634.22 grammes of heroin narcotic should have been in the region of 20 years’ imprisonment on the authority of R v Lau Tak-ming and others [1990] 2 HKLR 371, then any enhancement for the international element should not have taken the sentence to more than 21 years’ imprisonment after trial, which after a one third reduction for plea would have resulted in a sentence of 14 years’ imprisonment.

Leave to appeal out of time

6.  In advancing his application for leave to appeal out of time, the applicant points out that it was only recently drawn to his attention when he applied for (and was refused) legal aid that his counsel at trial, Mr Nicholas Adams, had in fact urged the judge to adopt a sentence after trial of 22 years’ imprisonment, duly enhanced for the international factor, which figure the judge had then adopted, resulting in the sentence which was ultimately passed after discount for plea.  He says that he accepted counsel’s advice at the time but it has become apparent to him with the passage of time, and by reference to the cases he has listed, that counsel’s advice and his submission to the judge was wrong and that an inflated figure as the appropriate sentence after trial had been suggested to the judge, which she then wrongly adopted.  In other words, he argues that both he and the judge were misled by Mr Adams’ submissions which at the time he assumed were correct, but which he has since discovered were not.  In the result, he has unwittingly received a higher sentence than was warranted on the facts and, because of what he was advised and accepted, he had not previously sought leave to appeal that sentence.

Consideration

7.  It has often been said that sentencing is an art and not a science and that there must always be a margin of discretion for judges even in cases where there are tariff guidelines.  If it were simply a question of deciding whether a higher than normal sentence fell within the range of sentences open to the judge, we would not have interfered with this sentence, particularly when this application is more than 4½ years out of time.  We would not have been impressed by a simple comparison with other sentences passed by other judges on different occasions in respect of different facts.  Nor would we have countenanced an examination of the legal advice rendered to a defendant, absent a claim of incompetence on the part of his solicitors or counsel.

8.  However, the problem presented in this case is that it is clear from the transcript of proceedings itself that Mr Adams did give the applicant the advice that his sentence after trial should have been about 22 years’ imprisonment, because that is what he told the judge in terms during mitigation; and it is also clear that the judge accepted the correctness of counsel’s submission and adopted the figure Mr Adams advanced.  The transcript of mitigation reads as follows:

“MR ADAMS: My Lady, the accused is well aware, from the advice that's been given by my instructing solicitor and by myself in a subsequent conference, of the tariff for this offence and indeed the enhancements which apply due to the international element. He's looking, therefore, at a sentence starting point, with respect, may I submit, (at) something like 22 years.

COURT:  Yes.”

9.  In her brief sentencing remarks which followed, the judge said:

“I consider that the appropriate starting point for this quantity of drugs to be in the region of 22 years as suggested by your counsel. Having taken into account everything that has been urged in mitigation on your behalf, particularly your early plea of guilty, I shall give you the full one-third discount.

In the result I sentence you to 14 years and 8 months’ imprisonment.” (Emphasis supplied)

10.  The applicant may, therefore, be forgiven for thinking that the sentence he received was correct because that is what his own counsel and solicitor had told him and articulated before the judge, and the judge had thereupon agreed with his counsel.  Yet, if the thrust of the applicant’s complaint as to quantum is correct, Mr Adams had pitched the sentence he was advocating after conviction too high.

11.  It does seem to us, with respect, that the ultimate sentence in this case was manifestly excessive.  The quantity of heroin narcotic should have merited a sentence of around 20 years’ imprisonment as a starting point in accordance with the guidelines in Lau Tak-ming; while the enhancement of that starting point for the international element should also have been in the region of 1 year imprisonment.

12.  Mr David Chan, for the Respondent, has helpfully drawn to our attention a number of recent cases at first instance where courts have enhanced the sentence in respect of heroin narcotic for similar quantities by one year (or less), although he rightly says that this is a matter of sentencing discretion and those cases were not, or have not yet been, the subject of appeal.  In HKSAR v Mateus Da Silva (unrep., CACC 87/2010), the Court of Appeal considered that in respect of 716.66 grammes of heroin narcotic, the enhancement for the international element (in a case where the applicant had flown into Hong Kong from Guinea Bissau) should only have been one year.

13.  On the other hand, in HKSAR v De Bruin Michelle Rosy (unrep., CACC 409/2009), a differently constituted Court upheld a sentence which incorporated a 2-year enhancement for the international element in respect of the importation of 751.90 grammes of heroin narcotic; although we would observe that the level of enhancement was not specifically addressed either by the applicant or the Court.  We also note that the sentencing judge had given a very generous discount of 2 years because of certain admissions of fact the applicant had made during her trial.

14.  In another sentencing appeal decided today, namely HKSAR v Maumba Hassani Rashidi (unrep., CACC 410/2014), we have determined that the appropriate enhancement for the international element in respect of 480 grammes of heroin narcotic should have been 1 year and not 2 years’ imprisonment.

15.  As we have said, every case is different and judges have a margin of discretion in sentencing.  Nevertheless, in our view, the general range of sentences in cases broadly similar to the present case would suggest that the sentence after trial in the present case should have been in the region of 21 years and not 22 years, appropriately reduced for plea to 14 years’ imprisonment.  Regrettably, the case got off to an unfortunate start when defence counsel in mitigation pitched the starting point and the enhancement of that starting point too high, and the judge obligingly agreed with counsel’s figure.  The question now is whether, this is sufficient to allow us to alter a sentence when this application is considerably out of time.

16.  Times limits in criminal appeals are to be taken seriously by practitioners, would-be appellants and the courts.  As this Court has observed in HKSAR v Ma Cheuk Shing (unrep., CACC 507/2012):

“Time limits are important statutory requirements and are there for a purpose, so that cases can be expediently dealt with and finality achieved while the matter is relatively fresh in the minds of all parties involved in a particular case. If, having made a conscious decision not to appeal, an appellant changes his mind, resulting in a successful appeal and the matter having to go back for reconsideration or retrial by a trial court, unfairness might well result to parties involved in the case; for example, witnesses who have to recall events once again in a case which they thought was over several years ago. That may not be the concern in this case since the applicant pleaded guilty to the charges and his appeal is against sentence only. Nevertheless, he maintains that he received and acted upon legal advice, the propriety of which we shall examine, and even his solicitor at the time will have had, by virtue of the delay in the applicant's decision to appeal, to recall oral advice he rendered some 15 months ago.”

The Court went on to say:

“The burden on the applicant is therefore an onerous one, which becomes more onerous the longer the delay: see R v Wong Kai Kong [1990] 1 HKC 279. Although we would not, of course, refuse leave if we thought we were “shutting out a substantial and plainly arguable ground of appeal” (see R v Ip Chung Hang (unrep, CACC 345/1988)), the onus on the applicant is a high one and it is necessary to examine, amongst other things, whether the advice which he received in the lower court was advice which no legal adviser could sensibly have given; and that, by accepting it, the applicant acted to his disadvantage.”

17.  Had it not been for the fact that counsel himself at trial advanced the impugned sentence to his client and to the court and the fact that the court thereafter adopted counsel’s suggestion, we would not have interfered with this sentence just because it was on the high side, given in particular that this application for leave is now so long out of time.  However, we cannot overlook the obvious fact that the applicant must have laboured for some years under the impression that what he was advised by his counsel and solicitor was correct, especially when it was further articulated in open court by his counsel, and then expressly accepted and acted upon by the judge.  We accept, in the circumstances, that it would only have been relatively recently that the applicant would have been caused to wonder whether what he was told, and the basis of his sentencing, was correct in the light of a number of other cases both at first instance and on appeal which suggested that his sentence was too high.

18.  We should say, however, in deference to Mr Adams, that we have not seen fit to enquire about the matter with him, because what he had advised the applicant and articulated before the judge was clearly placed on record and is indisputable.  We think, given that Mr Adams is an extremely experienced advocate, that this may perhaps have been an arithmetical slip when looking at the effects of Lau Tak-ming and Abdullah together, Abdullah having been recently decided at the time this sentence was passed.

Conclusion

19.  Accordingly, we are persuaded, in the very unusual circumstances of this case, that we should grant leave to appeal against sentence out of time, and treating the hearing of the application as the hearing of the appeal, we allow the appeal and reduce the sentence from 14 years 8 months to 14 years’ imprisonment.