HKSAR v. ODIRA SHARON LENSA

CACC 56/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 56 OF 2065

(ON APPEAL FROM HCCC 467 OF 2013)

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REASONS FOR JUDGMENT

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

1. On 1 November 2013, at Eastern Magistracy, the applicant pleaded guilty to one count of unlawfully trafficking in a dangerous drug, namely 0.95 kilogramme of a mixture containing 0.56 kilogramme of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was committed to the Court of First Instance where, on 24 January 2014, she appeared before V Bokhary J (“the judge”) and was sentenced to 13 years’ imprisonment.

2. By way of a Notice of Application for Leave to Appeal in respect of her sentence (“Form XI”) filed on 24 February 2016, the applicant sought leave to appeal against her sentence out of time.

3. At the hearing of the application we dismissed it and said we would hand down our reasons for doing so at a later date.  This we now do.

The facts

4. On 14 May 2013, the applicant, a 22-year-old Kenyan national, arrived at Hong Kong International Airport on a flight from Nairobi. She was refused permission to land and was intercepted for customs clearance.  Nothing illegal was found in her baggage but when she was questioned about her reason for coming to Hong Kong she said she had objects inside her body that needed to be discharged immediately.

5. The applicant subsequently discharged a total of 19 packets containing suspected dangerous drugs.  She was then arrested and cautioned and in response to the caution she said she did not know the nature and number of packages in her body as she had not counted them.  She also said she had not been told what reward she would receive for trafficking these packages into Hong Kong.

6. The applicant was taken to Queen Elizabeth Hospital for a medical examination which confirmed the presence of additional foreign objects inside her body.  Thereafter, the applicant discharged another 77 packages of suspected dangerous drugs.

7. On examination the discharged items were confirmed to be 0.95 kilogramme of a mixture containing 0.56 kilogramme of heroin hydrochloride.  This quantity of dangerous drugs had an estimated value of $761,900.

The mitigation

8. Counsel at trial informed the judge of the applicant’s personal circumstances, namely that she was 23 years old and that before coming to Hong Kong she had worked as a store cashier earning a monthly income of 500 Kenyan dollars.  She had a 5-year-old son whose father had passed away in 2007 and her mother was raising her two young brothers, who were aged 10 and 15 respectively, and had to fund their studies and living expenses.  She said she committed the present offence in order to obtain additional income to help her family.

9. Counsel also handed to the court a letter written by the applicant in which she apologised for her actions and expressed deep remorse for them.  She referred to herself as a victim and asserted that she never, ever again wanted to be used to harm others.  She said she wanted “to create awareness to the society over my experiences and given second chance.”

10. Counsel accepted that the case of Lau Tak Ming[1] laid down the relevant sentencing tariff of 15 to 20 years’ imprisonment for trafficking unlawfully in a quantity of between 400 and 600 grammes of heroin hydrochloride.  The starting point within this band would then have to be enhanced for the aggravating factor of the international element.

The Reasons for Sentence

11. In passing sentence, the judge said she had considered all the circumstances of the case.  She adopted a starting point of 18½ years’ imprisonment, which she then enhanced by one year to 19½ years’ imprisonment to take account of the aggravating factor of the international element.  Affording the applicant a full one‑third discount for her guilty plea, the judge then sentenced her to 13 years’ imprisonment.

The application for leave to appeal out of time

12. In respect of her almost 2-year delay in taking out the present application, the applicant explained in a note she attached to the Form XI that she was not “settled when I got sentence” and “I wasn’t prepared at that moment”.

13. When asked by the court at the hearing of her application if she had anything further to say on the issue of delay, she said that when she was sentenced a lawyer advised her not appeal.  At that time she was, she said, scared, nervous and stressed by prison life and so she did nothing.  Later, she realised she had a right to appeal and after talking with other inmates and sharing ideas with them she thought she had not been treated fairly in the sentence that had been imposed upon her.

The grounds of appeal against sentence

14. The applicant has not filed any grounds of appeal.  However, in a letter to the court, dated 21 August 2016, the applicant complained that when passing sentence the judge had overlooked the purity of the heroin hydrochloride in which she, the applicant, had unlawfully trafficked when adopting a starting point of 18½ years’ imprisonment and an enhancement of 1 year’ imprisonment.  She also said that there were other inmates in the prison with her who had been sentenced for trafficking unlawfully in the same and even greater quantities of dangerous drugs, but who had received sentences less than hers.  In support of her argument she referred the court to the Reasons for Sentence in two Court of First Instance cases, namely HKSAR v Lydia Nakayiza[2], Massogoa Nasra Hassani[3] and HKSAR v Daniel Khutso Makgae[4].

15. She attached to her letter a letter from Fr John Wotherspoon OMI, CSD Chaplain No 51.  In this letter Fr Wotherspoon described a campaign he had launched in 2013 to warn East Africans about the dangers of drug trafficking in Hong Kong and of the contribution the applicant and her family had made to it.  He said:

“Sharon and her family have actively supported my campaign by spreading its message to relatives and friends and the wider community in Kenya. Sharon has been a model inmate, most co-operative with staff, helpful to other inmates, using her spare time to study. She recently took a human resources course for which I was happy to provide the text book.

Especially because of her support for my campaign I hope Sharon can qualify for mitigation by the court, as has happened for a number of other African inmates, recently – e.g. – the case of Millicent Otieno, sentenced May 30, 2016.”

16. The applicant informed the court that she joined Fr Wotherspoon’s campaign in early 2015.  She wrote letters which Fr Wotherspoon would place on his website.  These were open letters which told of how she had been cheated and used and warning others against trafficking drugs into Hong Kong.  She also enlisted the help of her family and encouraged them to spread the message to others not to allow themselves to be used to traffic drugs to Hong Kong.

17. All of this was confirmed by Fr Wotherspoon who gave evidence before us at the applicant’s request.  His campaign has a number of elements to it.  It firstly makes use of inmates’ contact with their families and friends in their home countries.  The inmates write to their relatives and friends and ask them to spread the message of not taking part in drug trafficking.  Secondly, he uses the letters of inmates on his websites to reach a greater number of people via the internet.  Thirdly, he travels to various countries and engages with government officials and the media to obtain further assistance in publicizing his anti-drug trafficking message.

18. One of the countries he visited was Kenya and whilst there he met the applicant’s family.  He held a press conference at the Supreme Court and the applicant’s cousin attended and took part in it.

19. Fr Wotherspoon convincingly claimed that as result of his efforts in Kenya and Tanzania there had been a substantial decrease in drug couriers being recruited from these two countries to traffic drugs into Hong Kong.

The respondent’s submissions

20. In respect of the application being out of time Mr Ivan Cheung, Public Prosecutor, submitted that the applicant had provided no valid reason to justify the lengthy delay in her application.

21. In respect of the applicant’s sentence Mr Cheung argued that it was not manifestly excessive.  He said that 560 grammes of heroin hydrochloride fell within the 400 to 600 grammes sentencing band, for which the range of sentence was 15 to 20 years’ imprisonment.  A purely arithmetic approach to the determination of sentence, would result in a starting point of 19 years’ imprisonment and so the judge’s starting point of 18½ years’ imprisonment for this quantity of narcotic cannot be criticised.  The enhancement of this starting point by 1 year’ imprisonment to allow for the international element was, he said, in accordance with the approach taken in HKSAR v Chung Ping Kun[5].  Mr Cheung accepted that the decision of this court in Chung Ping Kun post-dated the commission by the applicant of her offence but he maintained what was said by this court in that case was nothing new and the effect of the decision was merely to formalise a general practice that had developed in implementing what had earlier been said by this court in HKSAR v Abdallah.[6]

22. Mr Cheung referred to comments by this court in HKSAR v Lee Man Wai[7] where it was said that financial pressure would not generally be regarded as a mitigating factor for the commission of crime.

Discussion

23. The relevant legal principles for the grant of an extension of time in which to appeal are set out in R v Wong Kai Kong & anor.[8] From this case it is clear that the applicant seeking the extension of time bears a burden of advancing an explanation which satisfactorily explains the delay.  In determining whether this burden has been discharged the court considers the length of the delay, the explanation for not making the application within time and, generally, the bona fides of the applicant.  In Wong Kai Kong the Court of Appeal emphasised that substantial grounds must be shown for the delay and said that “The longer the delay, the more onerous is the duty of the person making application …”

24. Notwithstanding that the explanation may not satisfactorily excuse the delay the court will look at the proposed grounds of appeal to ensure that should it refuse the application it would not be shutting out a substantial and plainly arguable ground of appeal.

25. In the present case the applicant’s explanation is essentially one of having to adjust to the stress of prison life and of coming to terms with her lengthy incarceration.

26. However, undermining the credibility of that explanation is the fact that she pleaded guilty at Eastern Magistracy on 1 November 2013 and would have known from that date what the consequences of so doing would mean for her.  Furthermore, she had been in prison on remand since the date of her arrest.  Even if she genuinely needed some time to adjust to the reality of what lay ahead for her, that does not, and cannot, explain a delay as long as two years.

27. In the present case the applicant has not advanced a satisfactory explanation to excuse the very lengthy two year delay in applying for leave to appeal her sentence.  On the basis that she has not satisfactorily explained the delay there is no justification for granting her the extension of time she seeks.

28. However, in order to ensure that we were not shutting out a substantial and plainly arguable ground of appeal we have considered her complaints.  We are satisfied there is nothing in them.  The starting point of 18½ years is clearly not excessive.  As Mr Cheung for the respondent pointed out, on a purely arithmetic basis the judge would have been entitled to have adopted a starting point of 19 years’ imprisonment.[9] However, exercising her sentencing discretion, she extended leniency to the applicant and adopted a lower starting point within the range, as she was clearly entitled to do.

29. The three cases to which the applicant referred in her letter to the court are of no assistance to her in pointing to any error by the judge in calculating the appropriate sentence for her crime or in demonstrating any excessiveness in her own sentence.

30. In the Makgae case Toh J adopted a starting point of 19 years’ imprisonment for 580 grammes of cocaine which she then enhanced by 1 year to allow for the international element.

31. In the Massogoa case DHCJ Geiser adopted a starting point of 18 years’ imprisonment for 560 grammes of heroin which he then enhanced by 1 year to allow for the international element.

32. In the Nakayiza case DHCJ McMahon adopted a starting point of 17 years’ imprisonment for 560 grammes of heroin which he then enhanced by 1 year to allow for the international element.

33. In the cases of Makgae and Massogoa the differences in sentence are quite marginal and variations of this kind are to be expected when the sentencing discretion is being exercised.  In the Nakayiza case it is true that the judge adopted a most lenient starting point for the quantity of dangerous drug but the Reasons for Sentence of DHCJ McMahon do not reveal what prompted him to adopt this particular point within the sentencing band.  However, the fact that he did so does not mean that the starting point adopted by the judge in respect of the applicant was excessive.

34. Because the determination of a just sentence is an exercise of judicial discretion there will always be variations between cases even when the cases involve similar quantities of drugs.  In this respect the comments of this court in HKSAR v Rawe Waikama Magarya[10] are worth repeating:

“ 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.”

35. However, as this Court said in our judgment in HKSAR v Msembo Kilugaja Joram[11]:

“… it may often be of assistance, in affording transparency to the sentencing process, if regard is had, first to an arithmetic calculation and, secondly an explanation is afforded for such reduction or increase as may be appropriate from that starting point.”

36. The reason the starting point is enhanced is because the fact that the unlawful trafficking crosses international borders is regarded as an aggravating factor increasing the seriousness of the trafficker’s conduct.  This was so held by this court in its judgment in Abdallah.  There it was said that where the aggravating factor of an international element was present then the enhancement should be at least two years’ imprisonment for quantities of drugs above 1,000 grammes.  For quantities less than this amount, the enhancement lay within the discretion of the court.

37. In Chung Ping Kun this court provided further guidance to trial judges on how they should exercise their discretion when enhancing a starting point to allow for the aggravating factor of the international element.  The purpose of this decision was not to deprive judges of their discretion but rather, in line with the underlying purpose of the drug trafficking sentencing regime, to achieve greater consistency in the sentences imposed.

38. In sentencing this applicant the judge did not have the benefit of the Chung Ping Kun decision, but nothing said by this court in that case would confer any sentencing advantage on her.

39. Applying the less detailed Abdallah guideline the judge had a discretion to impose an enhancement of anything up to 2 years’ imprisonment.  Relevant to the exercise of that discretion are the following matters:

(i) the primary factor in calculating the amount of the enhancement is the quantity of the drug;

(ii) the range is, in effect 1-24 months for amounts of 1‑999 grammes;

(iii) the applicant imported a quantity, namely 560 grammes, that was just over the mid-way point in that range; and

(iv) there was nothing about the applicant’s background or the circumstances of her offence which particularly distinguished her from other cross-border couriers of dangerous drugs.

40. In those circumstances we are satisfied that the judge did not err in enhancing her starting point by 12 months’ imprisonment to reflect the aggravating factor of the international element.

41. In the letter that Fr Wotherspoon wrote on behalf of the applicant he referred to the sentencing of a Ms Otieno.  We have obtained the Reasons for Sentence of DHCJ Woo in HKSAR v Otieno Millicent Akoth[12] which is a case of importation of 544 grammes of cocaine by a 37 years old Kenyan woman who brought the drug to Hong Kong by means of internal concealment.  The defendant was a widow with three daughters aged 16 years, 8 years and 14 months.  She had also been actively participating in Fr Wotherspoon’s campaign to educate and warn people of Hong Kong’s drug trafficking laws.  Presumably this took place over a period of time that commenced at some stage after her arrest on 4 October 2015 and before her sentencing by DHCJ Woo on 30 May 2016.

42. The Deputy Judge adopted a starting point of 18 years 7 months’ imprisonment which he then enhanced by 1 year for the international element.  His final starting point was therefore 19 years 7 months’ imprisonment.  The judge then said:

“Due to her clear record and to show leniency for the sake of her young children, and especially for her active participation in Father John’s campaign, I am prepared to adopt a reduced starting point of 18 years and 6 months.”

43. This was a significant discount of 13 months and from this discounted starting point the judge then made the normal one third discount for the defendant’s plea of guilty.

44. We were informed by Fr Wotherspoon that he is aware of other cases where judges have reduced a sentence to allow for the fact that an offender has rendered assistance to his campaign. Mr Cheung, for the respondent, took issue with this practice as a matter of principle.  However, this is not the occasion to consider the propriety of such a practice and, if proper, how such a mitigating feature fits into our drug trafficking sentencing regime and what value is to be given to it.  Nor is it necessary to consider the propriety of the practice in order to determine the proper approach by the Court of Appeal when this form of assistance is raised as a post-sentence event.  Merely because pre-sentence conduct of a defendant is taken into account as a mitigating feature by a sentencing judge does not mean that when that same conduct takes place post-sentence the Court of Appeal must have regard to it.  The Court of Appeal, as an appellate court, has a specific role in sentencing matters.

45. In HKSAR v Akinyi Grace Sylvia[13] we had cause to consider that role and whether participation by a prisoner in Fr Wotherspoon’s campaign was a post-sentencing event that is appropriate for the Court of Appeal to have regard to or whether it is a matter that should be left to the executive.  In that judgment we referred to the Court of Appeal decision in HKSAR v Yeung Kwai Kuen [14] where Stock JA, as he then was, examined the role of the Court of Appeal in adjudicating sentence appeals and made the very important point that the Court of Appeal generally looks at factors which prevailed at the date of sentence and does not “act as an administrative review, or a supervisory, tribunal to take into account factors since sentence.”[15]

46. The court does, exceptionally, have regard to post-sentence events and the most commonly encountered exception is that of assistance to the law enforcement and prosecuting authorities.  But that is an exception which exists for very particular public interest policy reasons.  In other cases, such as where an appellant seeks the merciful intervention of the court, the principled approach is that articulated by Stock JA in Yeung Kwai Kuen when he said at page 408:

“Sentencing is, as has often been emphasized, an art, and not a mechanical application of rules or policy to the exclusion of the facts and justice of individual cases. It follows that there will be cases where a court will be moved to take action in an appellant’s favour by reason of post-sentence events because a failure to do so, by that court and at that stage, will defeat the ends of justice and the public interest.”

47. Applying that principled approach in Akinyi, we said at paragraphs 36 and 39:

“ The form of assistance rendered by this applicant does not require the intervention of this court at this stage. The assessment of the value of the applicant’s assistance is something which can be better made by the executive and there is still ample time before the applicant’s release for such an assessment to be made.

…

If such initiatives require the participation of convicted drug traffickers in order for them to be effective and serving prisoners take part in such programmes then it will be a matter for the executive to determine whether such assistance should be rewarded by use of the executive’s power of clemency.”

48. Adopting and applying the same principled approach to the circumstances of this applicant leads us to the same conclusion that there is nothing in her personal circumstances which requires us to act now in order to ensure that the ends of justice and the public interest are not defeated.

49. However, as we indicated in that case, we applaud Fr Wotherspoon’s efforts in disseminating information on Hong Kong’s drug trafficking laws.  Measures such as his that inform and discourage those in third world countries who are vulnerable to exploitation by the international drug trafficking syndicates, are of great benefit to Hong Kong.  Those that participate in such measures are likewise acting in the interests, and for the benefit, of Hong Kong.

50. But, it is apparent from Fr Wotherspoon’s testimony that the participation of an inmate in his campaign may vary from inmate to inmate.  Some may be more involved than others and for many the involvement may be a lengthy on-going one where the relatives of the inmate are enlisted to carry forward the campaign in the inmate’s home country.  At the sentencing stage this may require evidence to be called and an enquiry to be conducted by the sentencing judge in order to properly assess the involvement of the prisoner and the value of that involvement to Hong Kong.  Assessing the value to Hong Kong of the prisoner’s actions, within the framework of Fr Wotherspoon’s campaign, is a task which, in our view, the executive will generally be better equipped than the Court of Appeal to perform.

51. Consequently, we are of the view that the recognition that should be given to a serving prisoner for post-sentencing participation in Fr Wotherspoon’s campaign is a matter that is better determined by the executive.

Conclusion

52. For these reasons we dismissed the application for leave to appeal out of time.

[1] [1990] 2 HKLR 370

[2] HCCC 347/2013, 11 October 2013.

[3] HCCC 234/2013, 13 August 2013.

[4] HCCC 454/2013, 16 October 2015.

[5] [2014] 6 HKC 106

[6] [2009] 2 HKLRD 437

[7] CACC 386/2005, unreported, 13 January 2006.

[8] [1990] 1 HKC 279

[9] As was done for 560 grammes of cocaine narcotic in HKSAR v Anyalechi [2016] 2 HKLRD 20 and approved by this court.

[10] [2015] 5 HKC 438, paragraph 29.

[11] HKSAR v Msembo Kilugaja Joram (CACC 271/2015, unreported, 3 March 2016.)

[12] HCCC 145/2016, unreported, 30 May 2016.

[13] CACC 324/2015, unreported, 22 April 2016.

[14] [2002] 3 HKC 395.

[15] HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395 at 405.