HKSAR v. Nkwo Nnaemeka Darlington

CACC 78/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 78 OF 2015

(ON APPEAL FROM HCCC NO. 101 OF 2014)

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BETWEEN

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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.The applicant pleaded guilty before a magistrate on 7 March 2014 to one charge of trafficking unlawfully in 0.96 kilogramme of a powder containing 0.43 kilogramme of cocaine (“Count 1”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; and one charge of possession of 11.83 grammes of cannabis in herbal form (“Count 2”), contrary to section 8(1)(a) and (2) of the same Ordinance. He was duly committed to the High Court for sentence, where, on 13 May 2014, he was sentenced by Deputy Judge Wright to 10 years and 3 months’ imprisonment on Count 1; and 1 day’s imprisonment on Count 2, both sentences being ordered to run concurrently.

2.The judge further made an order for disposal of exhibits in terms of an application for forfeiture made by the prosecution (“the confiscation order”) on the same day.

3.The applicant filed a notice of application for leave to appeal against the confiscation order out of time on 4 March 2015, and subsequently an application for leave to appeal against sentence out of time on 25 September 2015.  In April 2015, he was refused legal aid to appeal against the confiscation order out of time, but in November 2015 granted legal aid in relation to his appeal against sentence out of time.

4.In a letter to the Court dated 6 June 2015, the applicant explained that he had only found out after some months in prison that his belongings, in particular his wallet and a mobile telephone, had been forfeited.  He refused to acknowledge the forfeiture and therefore lodged an application to appeal the confiscation order out of time.  As for the application for leave to appeal against his sentence of imprisonment, he has explained by way of affidavit dated 3 December 2015 that he thought he could only apply to appeal against the confiscation order or his sentence of imprisonment, but not both.  Hence, the delay in lodging the latter application.

5.As events have transpired, Mr Ross, on behalf of the applicant, indicated before us that he was not pursuing the appeal in relation to the confiscation order and advanced submissions in respect of the sentence of 10 years 3 months’ imprisonment only.  On 10 December 2015, we refused the application for leave to appeal saying we would hand down the reasons for our decision later.  These are our reasons.

The facts of the case

6.On 9 September 2013, at just after midnight, a speedpost parcel from Sao Paulo, Brazil, addressed to one Oppong Kyekyeku Tweneboah (“the consignee”), was opened for customs examination at the airmail centre in the Customs Examination Hall of Hong Kong International Airport.  A carton box inside the parcel was found to contain 24 boxes of tea bags, inside of which was concealed cocaine.

7.At about 16:30 hours on the same day, an attempt was made to deliver the parcel to the consignee at an address in Tokwawan.  However, since the address provided was not valid, a notification card was placed in the post box of the building.

8.At 10:23 hours on 10 September 2013, the applicant appeared at the Tokwawan Post Office in order to collect the parcel.  He had with him the notification card and a passport in the name of the consignee.  He was informed by the Post Office Manager that the parcel could be collected at or after noon that day. At 12:10 hours, Customs Officers arrived at Tokwawan Post Office with the parcel for a controlled delivery operation.

9.At around 13:15 hours, the applicant attended Tokwawan Post Office for the second time and again presented the notification card together with the passport in the name of the consignee. However, the passport was discovered to have expired and he was asked to produce another valid document of identity.

10.At 15:55 hours on the same day, the applicant approached the Post Office again to collect the parcel.  On this occasion, he tendered a copy of a passport in the name of the consignee together with his own Form 8 recognizance, and successfully retrieved the parcel.  At 16:00 hours, the applicant was intercepted by Customs Officers at the entrance to the shopping mall where the Post Office was situated.  Upon arrest and caution, the applicant claimed that he did not know what was inside the parcel since he was merely collecting it for a friend of his named ‘Gaddafi’.  He said that Gaddafi’s phone number was stored in his mobile telephone, and that he would receive $1,000 as reward for delivering the parcel to Gaddafi at Mirador Mansion in Tsim Sha Tsui.

11.At 16:05 hours, the applicant was searched by a Customs Officer and found to be in possession of five packets of suspected cannabis inside his wallet.  Under caution, he said it was for smoking.

12.The applicant then indicated his willingness to take part in a controlled delivery operation.  At 16:35 hours, a telephone call from telephone number 61305917 was received on the applicant’s mobile telephone.  As instructed, the applicant told the caller that he had collected the parcel, which he was delivering to Tsim Sha Tsui. Between 17:35 and 18:00 hours, the applicant made 10 attempts to contact Gaddafi but to no avail.  No further attempt to make a controlled delivery was taken thereafter.

13.The applicant participated in a Video Recorded Interview between 19:35 and 20:45 hours on 11 September 2013.  The gist of his explanation was that he had collected the parcel on behalf of his friend Gaddafi, whom he had known for around 1 year.  Gaddafi had given him the photocopy of an Australian passport and the notification card.  He had no knowledge of the contents of the parcel.  He was to receive a reward of $1,000 following successful delivery but was unsure whether it was United States or Hong Kong currency.  In the latter part of the interview, the applicant said that Gaddafi had told him the parcel contained samples of tea.  He was frightened when arrested and had therefore initially denied knowledge of the contents of the parcel.  He had no suspicion about the arrangement.  Finally, he maintained that the five packets of cannabis inside his wallet had been given to him by a businessman from Nigeria for his own consumption.

14.The street value of the cocaine seized was estimated at $1,045,440, whilst the average retail price of the cannabis seized was $1,537.90 (Total value: $1,046,977.90).

15.Travel Movement Records provided by the Immigration Department showed that the applicant had arrived in Hong Kong at 19:16 hours on 12 June 2011.  He was the holder of a Form No. 8 recognizance issued by the Director of Immigration on 18 July 2012, having lodged a torture claim.

16.By the time of his plea, the applicant admitted and accepted that he had trafficked in the dangerous drugs particularised in Charge 1, which had been unlawfully imported into Hong Kong.

Mitigation

17.The applicant was 29 years old at the time of his sentence.  He came to Hong Kong in June 2011 and overstayed until he was arrested in May 2012.  Whilst being processed by the Immigration Department, he lodged a torture claim that, since his father had been killed by a rival in a land dispute, he had reason to fear for his own life.  He was, accordingly, issued with a recognizance in July 2012.

18.The applicant took the risk of committing the offences for financial reasons, since he was unable to work and was concerned about his future.  He was depicted by his counsel as a vulnerable person easily targeted by unscrupulous drug dealers.

19.As for his possession of the cannabis, it was said that the drug was a gift from a Nigerian businessman, and that smoking herbal cannabis was a common and culturally acceptable form of recreation in his native country.

20.The applicant’s counsel at trial specifically addressed the question of a further discount on sentence for the applicant’s voluntary assistance in the controlled delivery operation, and referred to two authorities in support of his submissions.

Reasons for Sentence

21.The judge in his Reasons for Sentence acknowledged that the applicant had shown a real willingness to assist in the controlled delivery of the parcel, and that it was not his fault that his assistance ultimately came to nothing.

22.Although defence counsel had submitted that a strictly mathematical application of the relevant sentencing guidelines would suggest a starting point of 15 years 9 months’ imprisonment for trafficking in 0.43 kilogramme of cocaine, the judge adopted a starting point of 15 years 6 months’ imprisonment, which he then enhanced by one year for the international element; thus making an overall sentence after trial of 16 years 6 months’ imprisonment.

23.Applying a one-third discount for plea, the judge reduced the sentence to 11 years’ imprisonment.  He then gave a further reduction of 9 months for the applicant’s assistance in the controlled delivery, thus making a final sentence of 10 years 3 months’ imprisonment on Charge 1.

24.As for Charge 2, the learned Judge said it was “trifling by comparison” and that the justice of the matter would be met by a sentence of 1 day’s imprisonment, to be served concurrently with the sentence imposed on Charge 1. The applicant’s overall sentence was, therefore, 10 years 3 months’ imprisonment.

Grounds of appeal against sentence

25.Mr Ross argued a single ground of appeal that the judge erred in giving a reduction of only 9 months’ imprisonment from an overall starting point for sentence of 16 years 6 months for his voluntary assistance in the controlled delivery of the parcel requested by Customs Officers.

26.He referred the Court to two cases where higher discounts have been given for assisting in controlled operations, namely HKSAR v Gopal Muthusamy (unrep., CACC 238/2010), the extra discount for this factor being 7.3% from the starting point; and HKSAR v Jardin Rodela Maningas (unrep., CACC 278/2011), the extra discount being 7.5%.  He further referred to three first instance decisions from the same sentencing court[1], where the judge had adopted a discount of 40% including the discounts for plea of guilty and participation in a controlled operation.  However, the discount accorded the applicant’s assistance in the current case was only 5.2%.  Had the least discount ratio in all of these cases been applied to the present case, the applicant would have received a sentence at least 4 months less than that which he actually received.

27.Mr Ross also invites us to consider setting some guideline percentages for discounts in cases where defendants assist the authorities by participating in controlled delivery operations.

The respondent’s reply

28.Ms Lam takes issue with notion that there is, or should be, a fixed discount or an identifiable range of discounts for participating in a controlled delivery of dangerous drugs.  The circumstances of cooperation will vary considerably and it would be unwise to set down guidelines in relation to an issue which is very much one for the exercise of judicial discretion.  She distinguishes the authorities cited by Mr Ross and cites a further decision of this Court, namely HKSAR v Saavedra Rosamarie Bernado (unrep., CACC 424/2011), which supports the level of discount accorded by the judge in the present case.

29.The respondent further objects to the granting of leave to appeal against sentence out of time, since no good reason has been articulated for giving notice of the applicant’s intention so late: in the case of the confiscation order, 9 months out of time; in the case of the sentence of imprisonment, 15 months out of time.

Consideration

30.We do not consider that any good reason has been provided for the very late giving of notice of the applicant’s intention to seek leave to appeal in this case.  In particular, it seems astonishing that if the applicant had any genuine complaint about his sentence of imprisonment, he should not have raised the matter when he appeared before the Single Judge at the listing of his application for leave to appeal against the confiscation order on 15 September 2015.[2] It was not until 23 September 2015 that he gave any notice of his complaint about his sentence of imprisonment.

31.So far as the complaint about the confiscation order is concerned, we are satisfied that the judge had ample basis for making the order he did, given the obvious connection between the items claimed and the commission of the two offences: see section 56(1) of the Dangerous Drugs Ordinance, Cap 134. Furthermore, defence counsel at trial had endorsed the proposed order.  There is nothing to this complaint and, although Mr Ross has abandoned this aspect of the appeal, we have referred to it in view of the history of the matter, and for the sake of completeness, since a confiscation order is still part of the sentence.[3]

32.So far as the applicant’s sentence of imprisonment is concerned, no issue is taken about the notional sentence after trial adopted by the judge.  Although he reached the overall starting point of 16 years 6 months’ imprisonment by adopting 15 years 6 months in respect of the narcotic quantity plus one year enhancement for the international element, whereas defence counsel had advocated 16 years 9 months for the narcotic quantity plus 9 months enhancement for the international element, the resulting figure was the same.

33.As for any further discount for assisting the authorities in the controlled delivery, we do not accept that there is, or can be, any fixed percentage, or identifiable range of percentage, to be applied to such assistance.  We agree with Ms Lam’s helpful submissions that neither a straightjacket approach nor the application of a percentage discount range is desirable, because the factors to which a sentencing judge should have regard will necessarily vary according to the unique circumstances of different cases.  Such factors would include: (i) the nature and effect of any voluntary participation; (ii) the outcome of the assistance: was it successful in bringing to justice persons who would not otherwise have been brought to justice?; (iii) the degree or extent of assistance which had been provided; and (iv) the degree of risk to which the defendant had exposed himself or his family.  It is a matter within the discretion of judges how these, and other possible, factors affect the discount to be accorded a defendant in a particular case.  Accordingly, we do not accede to the invitation to lay down guidelines for such assistance.

34.Whilst we acknowledge that in the cases referred to by Mr Ross, the range of discount for participation in the controlled delivery was between 7.3% and 7.5% of the starting point, whereas the discount in the present case was 5.2%, the discount in Saavedra Rosamarie Bernado(supra), the authority relied on by the respondent, was 5%.  In that case, although the applicant’s participation in a controlled operation had initially led to the arrest of three other persons, nothing useful ultimately resulted.

35.As we say, every case is different and we do not accept that there can be a fixed percentage discount applied to all, or even similar, cases.  In this particular case, the judge was specifically addressed on this issue in mitigation by reference to two of the authorities on which Mr Ross places particular reliance, namely Gopal Muthusamy (where the discount was 7.3%), and Jardin Rodela Maningas (where the discount was 7.5%) (supra).  In his discretion, however, the judge adopted a discount of 9 months’ imprisonment, which represented a further discount from the normal discount for plea of 5.2%.  We also agree with Ms Lam that the facts in both cases, so far as the nature and extent of cooperation in the controlled deliveries were concerned, went further than the facts of the present case.

36.We do not find any assistance in the three first instance decisions referred to by Mr Ross.  Save perhaps for the first case, their facts were different, as was the nature and extent of participation in the controlled operations, as were the respective results.  If the judge in these cases was applying a uniform 40% discount where there was participation in a controlled delivery which ultimately came to nothing, then with respect we think he was in error.  In any event, as we have said many times before, there is little or no merit in referring this Court to first instance decisions when determining appropriate levels of sentence.

Conclusion

37.The application for leave to appeal against the confiscation order and the sentence of imprisonment out of time was therefore refused.

38.Finally, we should say this.  Mr Ross’s application for leave ultimately amounted to an invitation to this Court to tinker with the sentence of 10 years 3 months’ imprisonment.  Even if his submissions had had any merit, which they do not, we would have been even less disposed to tinker with a sentence when the application for leave to appeal was made so far out of time.

Ms Lam Tak-wing, Winnie SADPP (Ag), of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Peter K.H. Wong & Co, assigned by Director of Legal Aid, for the Applicant

[1] Zervos J in HKSAR v Law Kin Wing HCCC 94/2014; HKSAR v Chan Yuk Yin HCCC 169/2015; and HKSAR v Rodolfo Bardales Tobar HCCC 445/2013

[2] It should be noted that the Single Judge declined to entertain the application for leave to appeal against the confiscation order on the basis that the order formed part of the sentence, which was more than 7 years’ imprisonment: see R v Joyce (1989) 11 Cr App R (S) 253, at 256.  Accordingly, the matter was ordered to be heard at the same time as the application for leave in relation to the appeal against sentence.

[3] See section 80 of the Criminal Procedure Ordinance, Cap 221:

“  80.  Meaning of sentence

(1) In this Part –

“sentence” (刑罰), in relation to an offence, includes any order made by a court in dealing with an offender, including a hospital order…”