HKSAR v. AGUMA DENNIS

CACC 185/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 185 OF 2015

(ON APPEAL FROM HCCC NO. 484 OF 2014)

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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 14 November 2014, the applicant pleaded guilty before a magistrate to a single count of Trafficking in dangerous drugs, namely, 1,018.46 grammes of a mixture containing 447.32 grammes of heroin hydrochloride and 95.44 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was accordingly committed to the High Court for sentence where, on 12 February 2015, having confirmed his plea, he was sentenced by Deputy Judge Wilson Chan to 13 years’ imprisonment.

2.  By an affirmation and a notice of application for leave to appeal both dated 5 June 2015, the applicant applies for leave to appeal against his sentence out of time.  By the time of his notice of application, he was about 2½ months out of time.

The facts

3.  On 24 April 2014, the applicant arrived at Hong Kong International Airport on a flight from Uganda via Doha, Qatar.  Upon Customs clearance, he was suspected of internal concealment and conveyed to Queen Elizabeth Hospital for examination.  Foreign objects were found to be present inside his body.  He was accordingly cautioned by a Customs officer but had nothing to say.  In due course at the hospital, he discharged from his body a total of 69 pellets of suspected dangerous drugs.

4.  The suspected dangerous drugs were subsequently confirmed by a Government chemist to be the drugs specified in the quantities set out in the indictment, with an estimated retail value of HK$398,937.92 in April 2014.

5.  During a record of interview, the applicant maintained under caution that he had come to Hong Kong for his clothing business.  As he was in need of money for his daughter’s heart operation, he was persuaded by two men, whom he did not know, to carry some pellets of dangerous drugs to mainland China for a reward of US$6,000.  He said he did not count the number of pellets he had swallowed.  He intended to take the pellets to the mainland after doing his business in Hong Kong.  To that end, he was given a SIM card with the contact details of the person he should contact on the mainland.

6.  Initially, he denied knowledge of the dangerous drugs during interview.  However, at trial, he accepted that he was trafficking in the dangerous drugs set out in the indictment.

7.  The applicant had two previous convictions at the same court appearance: one for possession of arms/ammunition without a licence, the other for possession of a restricted article, without lawful authority or excuse, in part of an aerodrome; in relation to which convictions he had been fined $2,000 and $1,000 respectively.

Reasons for sentence

8.  It had been submitted on the applicant’s behalf in mitigation that he had committed the offence because of extenuating personal circumstances, which involved his second youngest daughter’s need for a heart operation.  The applicant had six children, a wife, mother and grandmother, all of whom were dependent on him financially.

9.  The judge disregarded the applicant’s previous convictions which he considered were unrelated to trafficking in dangerous drugs.  He noted that there was no evidence to suggest that a mixture of heroin and cocaine would enhance the effects or harm of the drugs, when compared with the potency of the individual drugs; accordingly, he combined the quantities of the two drugs in the case in order to identity the appropriate starting point for sentence, since the guidelines for trafficking in heroin and cocaine were the same.  See R v Lau Tak Ming [1990] 2 HKLR 370, as applied in R v Pedro Nel Rojas [1994] 2 HKCLR 69.

10.  Under the guidelines in Lau Tak Ming, the starting point for trafficking in between 400 and 600 grammes of narcotic would be 15 to 20 years’ imprisonment.  Accordingly, the judge adopted a starting point of 18½ years’ imprisonment for the quantity of narcotic concerned, namely 542.76 grammes.  He then enhanced that starting point to reflect the international element of bringing more than half a kilogramme of dangerous drugs across the border into Hong Kong, in accordance with guidelines adopted in HKSAR v Chung Ping Kun (unrep., CACC 85/2014); making 19½ years’ imprisonment.

11.  The judge accorded the applicant a full one-third discount for his guilty plea, thus resulting in a sentence of 13 years’ imprisonment.

Reason for lodging appeal out of time

12.  The applicant has submitted that he did not receive proper legal advice as to his ground(s) for appealing sentence, which he considered excessive.  He has also claimed that he was in a total state of shock after being sentenced and needed time to recover and to prepare for the appeal.

Grounds of appeal against sentence

13.  In his home-made grounds of appeal, the applicant complained that he did not see counsel assigned to him by the Legal Aid Department until a few hours before his sentence and thus, despite his guilty plea, there was not enough time to prepare his mitigation.  The judge, therefore, did not properly consider the reason why he committed the offence.

14.  He also disputes the purity of the drugs seized, suggesting that at the point of departure, the drugs should have been 300 grammes of cocaine and 100 grammes of heroin in a mixture.  Had this been brought to the attention of the judge, there may have been a direction to re-weigh the drugs and check the purities of the respective narcotic elements concerned.  He did not have the opportunity to discuss this matter with his counsel.

Respondent’s submissions

15.  Ms Cheuk, for the respondent, argues that no good reason for the late notice of application for leave to appeal against sentence has been given, and submits that the applicant’s state of mind is no reason to grant leave out of time.

16.  In relation to the merits of the proposed appeal, she contends that there can be no valid complaint, since the guidelines for heroin and cocaine are effectively the same.  As to the enhancement of 1 year for the international element, Ms Cheuk submits that, although the facts of the present case took place just over two months before the guidelines in Chung Ping Kun were handed down, that authority did no more than give effect to a practice which had grown up of enhancing sentences for trafficking in about half a kilogramme of heroin or cocaine by 1 year imprisonment.

17.  Accordingly, she submits that the starting point and the enhancement of that starting point adopted by the judge were appropriate.

18.  On the issues raised by the applicant concerning his having insufficient discussions with his counsel prior to confirming his plea in the High Court and his dispute as to the purity of the drugs, the respondent submits that the applicant had all along been legally represented and could have raised the purity issue with the magistrate before plea was taken, or when the charge and summary of facts were read to him.  The respondent directed our attention to a table summarising the applicant’s various appearances before the courts in the present case.  From that, it is clear that on 24 July 2014, the magistrate was advised in the applicant’s presence and hearing that the quantities of narcotic in respect of the seized drugs were 447 grammes of heroin and 95 grammes of cocaine.  The applicant was legally represented at the time, as he was at four further appearances before the magistrate’s court.  At his last appearance on 14 November 2014, when he was represented, the applicant indicated his plea of guilty to the offence of trafficking in dangerous drugs and confirmed the summary of facts, taking no issue with its contents.  Furthermore, no such contention as to the quantities involved was ever raised by the applicant in his hand-written letter of mitigation read to the judge by his counsel, which was then included in the court file.

19.  Ms Cheuk also draws our attention to the fact that in his record of interview, the applicant had stated that he did not know the number of pellets he had swallowed; accordingly, his assertion of a lesser amount of drugs had no evidential and factual basis.

Consideration

20.  In our judgment, no good reason has been advanced by the applicant for his late filing of a notice of application for leave to appeal against sentence.  Shock at the sentence passed, from which the applicant says he needed time to recover, is no reason at all for failing to take the necessary steps required by law to give notice of an intention to appeal.

21.  As for any possible merits in this appeal, there are none.  No issue has ever been previously raised about the quantities of narcotic the applicant thought he was ingesting.  Had it been raised, it would have been discussed with his lawyers, or the magistrate, or the judge at some stage after 24 July 2014, at which stage he first came to know about the relevant quantities.  Nor was it mentioned in his own hand-written letter of mitigation placed before the judge, which we have examined this morning.  Had it been mentioned even then, no doubt the issue would have been addressed and appropriately determined.  This Court is not the place to raise issues of fact which have never been raised before.

22.  In terms of the quantities of dangerous drugs, there can be no complaint about the combining of the two elements of narcotic, which for sentencing purposes are treated as the same in our courts.  Nor can there be any issue about the 1 year enhancement for the international element. The judge’s determination of 19½ years’ imprisonment as the notional sentence after trial is unimpeachable.

23.  Similarly, there can be no complaint about the discount of one-third for plea.  The applicant’s personal circumstances or those of his family cannot amount to any mitigation of an otherwise proper sentence for an offence of such gravity.

Conclusion

24.  The application for leave to appeal against sentence out of time is accordingly refused.