HKSAR v. RODRIGUEZ BANDERA JAIME

CACC 14/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 14 OF 2016

(ON APPEAL FROM HCCC NO. 536 OF 2014)

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Reasons for Judgment of the Court) :

Introduction

1.  Following his plea of guilty on 4 November 2015, the applicant was convicted by Deputy High Court Judge R. Lee, SC (“the Judge”) of a single count of unlawfully trafficking in 1.03 kilogrammes of a paste, which upon drying, was found to contain 870 grammes of a solid containing 52.87 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The Judge held a Newton Hearing on the following day to deal with the applicant’s knowledge of the quantity of the drugs involved and his assertion that the drugs were for his own consumption. After the Hearing, the Judge sentenced the applicant to 53 months and 2 weeks’ imprisonment.

2.  On 18 January 2016, the applicant filed a notice of application for leave to appeal against sentence out of time (Form XI). He was about 53 days out of time. After the refusal of his application for legal aid on 16 March 2016, the applicant filed a notice of abandonment on 5 April 2016. Upon filing of the notice of abandonment, his appeal against sentence was dismissed. However, on 11 April 2016 the applicant filed an affirmation, applying to treat his previous abandonment as a nullity and to revive his application for leave to appeal against sentence out of time. In his affirmation, the applicant explained that after he was denied legal aid, he did not know whether he would represent himself in court. After some thoughts, he sought to restore his appeal against sentence out of time.

3.  At the hearing on 23 September 2016, after hearing the parties, we dismissed the applicant’s application to treat the abandonment as nullity. These are the reasons for our judgment.

Admitted Facts

4.  The applicant is a Colombia national. He was born on 30 March 1950.

5.  On 6 May 2014, the applicant left Colombia for Frankfurt where he transited on a flight to arrive at the Hong Kong International Airport on 8 May 2014. He was booked to stay in Hong Kong for one night and travel onwards to Fiji on 9 May 2014. When the applicant was passing through Customs with his suitcase, he was intercepted by Customs Officers for an examination. As a result, a concealed compartment in the applicant’s suitcase was discovered. In the concealed compartment, two packages of suspected dangerous drug in paste form were found. The applicant was then arrested and cautioned. Under caution, the applicant admitted that he packed the suitcase himself but he had no idea as to what was inside his suitcase. The applicant was also found to be in possession of cash US$160 and 9.09 Euros at the time of arrest.

6.  The Government Chemist later confirmed that one of the seized packages consisted of 1.06 kilogrammes of a paste, which upon drying was found to contain 830 grammes of a solid containing a trace of cocaine; and the other package consisted of 1.03 kilogrammes of a paste which upon drying was found to contain 870 grammes of a solid containing 52.87 grammes of cocaine (i.e. the subject matter of the count). The estimated street value of the seized dangerous drug was HK$51,971.21.

Newton Hearing

7.  The applicant asserted that he believed the dangerous drug that he carried weighed only about 25 grammes as he had only paid for 25 grammes of cocaine with US$20; and that the whole of it was for his own consumption. Hence, a Newton Hearing was held. In the end, the Judge ruled that the applicant’s assertion as to the weight of the dangerous drug was not made out. But he accepted that part of the cocaine could have been used by the applicant for his self-consumption.

Mitigation

8.  The applicant was 65 years old at the time of his sentence. Mr Andrew Bullet, counsel for the applicant, below, submitted that the applicant, a Colombian national, was on his way to Fiji to explore possibilities in the tourism business. The applicant was a habitual cocaine user and he brought along the drug for his own consumption during the trip. The applicant had a clear record both in Hong Kong and his home country.

9.  Mr Bullet accepted that for the quantity of dangerous drug involved in the present case, a starting point of 8 years’ imprisonment was appropriate. But he submitted that a starting point of 6 years’ imprisonment would be applicable on the basis that the court accepted the applicant’s assertion of self-consumption. In any event, Mr Bullet urged the court to discount the starting point for the assertion of self-consumption and to give full credit to the applicant’s guilty plea (albeit with a Newton Hearing).

Reasons for sentence

10.  The Judge after hearing evidence given by the applicant, did not accept the applicant’s belief that he had only brought 25 grammes of dangerous drug. The Judge considered wholly implausible that a drug supplier in Colombia would have given the applicant over 50 grammes of cocaine when he had only paid for 25 grammes. However, the Judge considered that part of the amount of dangerous drug in question could have been for self-consumption and ruled that the applicant should be sentenced on the basis of a daily dosage of 3 to 6 grammes of cocaine.

11.  According to R v Lau Tak Ming & Anor [1990] 2 HKLR 370, trafficking in 52.87 grammes of cocaine shall attract a starting point of 8 years’ imprisonment. The Judge further enhanced the starting point by one month to reflect the international element of trafficking. As it was considered that part of the cocaine was for the applicant’s self-consumption, the Judge discounted the enhanced starting point by 16 percent, bringing it down to 80 months and three weeks. Since the applicant was partly successful in the Newton Hearing, the Judge gave the applicant a full one-third discount for the guilty plea and the final sentence passed on the applicant was 53 months and 2 weeks’ imprisonment.

Grounds of appeal against sentence

12.  In his Grounds of Appeal attached to his Form XI, the applicant stated that the judge had not considered the fact that the applicant was a habitual user of cocaine. He said he consumed up to 5 grammes a day and he should have gotten 25 percent discount on his sentence rather than 17 percent. The applicant also stated that he should be fitted in the “10 to 50 grammes” band in the sentencing scale to which he thought should only be 4 to 7 years’ imprisonment.

13.  In his affirmation dated 18 January 2016, which was also attached to his Form XI, the applicant did not explain the reason for his delay in filing the Form XI but in essence reiterated his grounds of appeal against his sentence.

Respondent’s submission

14.  The respondent submitted that in determining whether or not the abandonment can be treated as a nullity, the court must be satisfied that the abandonment was not the result of a deliberate and informed decision. It appeared that, as asserted in his affirmation, the applicant abandoned his appeal in the belief that he could not conduct the appeal on his own without a counsel. The respondent submitted that as it can be seen from the Grounds and affirmation, the applicant indeed had good written English and he should have no difficulty in understanding the contents of the Form XI, which contained nothing to suggest that an applicant could not conduct an appeal without legal aid or without a counsel. However, since the applicant mentioned about the transfer of the serving of his sentence under the Transfer of Sentenced Persons Ordinance, Cap. 513, the respondent submitted that if the applicant was motivated to abandon his Form XI application with a view to transferring the serving of his sentence in his home country, he might not have properly appreciated the effect of what he was doing. Provided that the applicant can discharge his burden to show that his mind did not go with his deed of abandonment, the respondent does not oppose the application to treat the abandonment as a nullity.

15.  Regarding the merits of the applicant’s application for leave to appeal against sentence out of time, the respondent submitted that the starting point adopted by the Judge was entirely appropriate and in line with the guidelines set out in Lau Tak Ming. The Judge had also dealt with the enhancement as leniently as possible by adjusting the starting point upward for only one month to reflect the international element.

16.  The respondent further submitted that the Judge was in fact very generous in giving discount to reflect the self-consumption assertion and the guilty plea. In HKSAR v Law Num Chun [2014] 5 HKLRD 500, it was suggested that a 15 percent discount would be appropriate to reflect the self-consumption cause but the Judge in the present case gave the applicant a 16.6 percent discount. Furthermore, although there was a Newton Hearing the Judge still gave to the applicant a full one-third discount from the sentence, where in Law Num Chun, the discount for guilty plea was reduced to about 27 percent when a Newton Hearing took place. The respondent therefore submitted that the sentence imposed by the Judge was neither manifestly excessive nor wrong in principle and concluded that the application for leave to appeal against sentence out of time should be dismissed.

Discussion

17.   The test to be applied in an application to treat an abandonment as a nullity is as stated in HKSAR v Law Kam Fai [2006] 2 HKLRD 879 at [44] :

...The test to be applied is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, meaning that the applicant’s mind did not go with the act of abandonment. The court does not inquire into the merits of the actual application for leave to appeal at all; nor should it until the said test has been satisfied. In other words, the outcome of an application to treat the abandonment as a nullity does not depend on the validity or cogency of the underlying application whose abandonment is sought to be nullified. How good or bad the underlying application for leave to appeal against conviction or sentence may be, this is irrelevant.”

18.  The applicant initially referred to two matters in his written materials placed before the court. First, he said he wished to serve his sentence in his home country. Second, he was denied legal aid. At the hearing, he told us that he would only rely on the denial of legal aid. After the court’s explanation, the applicant decided to give oral evidence to substantiate his application.

19.  There is no need to dwell on his oral evidence. Two important points emerged from his oral evidence which were determinative of his application.

20.  First, he was given a standard written letter from the Columbian Consul in December 2015 advising him the possibility of serving the sentence in his home country. A representative of the Consul visited him in February 2016 and told him that the paper work for transferring him back to Columbia would take 1 to 2 years to complete. Upon hearing that, the applicant lost interest in pursuing transfer. He reiterated that the matter of transferring back to Columbia to serve his sentence there had no bearing on his present application.

21.  Second, the applicant said that when he was denied legal aid on 16 March 2016, he thought he could not represent himself in court. That was why he abandoned his application for leave to appeal out of time. He was not aware of the gravity of his action. However, when the applicant on 18 January 2016 filed the Form XI which attached his home-made grounds of appeal, he was acting in person. The fact that he was not on legal aid did not prevent him from lodging and taking steps in prosecuting his appeal there and then. When pressed, the applicant admitted that he knew he could represent himself even without legal aid. That answer completely destroyed the whole basis of his application to treat the abandonment as nullity. His application must therefore fail.

Conclusion

22.  For the above reasons, we dismissed the applicant’s application to treat the abandonment as nullity.