HKSAR v. Salehe Abdul Omary

CACC 187/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 187 OF 2015

(ON APPEAL FROM HCCC NO. 274 OF 2008)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.The applicant, who appears in person, seeks leave to appeal out of time against the sentence of 14 years’ imprisonment imposed on him by Bokhary J on 18 February 2009, following his conviction on his plea of guilty at Eastern Magistracy on 14 November 2008 to one count of trafficking unlawfully in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.On 10 June 2015, the applicant filed a Notice of Application for leave to appeal against sentence out of time.

The facts

3.At about 11:45 p.m. on 19 April 2008, the applicant was detained by Customs Officers on his arrival at the Hong Kong International Airport from Dubai.  Following a search of his person, those officers suspected he had concealed drugs in his body so that the applicant was escorted to Queen Elizabeth Hospital for medical examination.  There, an X-ray revealed objects hidden inside his body.  Subsequently, he discharged a total of 124 pellets, which were found to contain 856.81 grammes of heroin hydrochloride, the subject of the charge to which the applicant pleaded guilty.  The heroin hydrochloride had an estimated street retail value of $737,453.

4.In pleading guilty to the charge, the applicant accepted that he knew that he was in possession of dangerous drugs when he entered Hong Kong.

Reasons for sentence

5.The judge said that she accepted the mitigation advanced on behalf of the applicant.  He came from a family of farmers in Tanzania, but he had moved on to work in buying and selling mobile telephones.  He travelled to Dubai to purchase mobile telephones.  There, he had agreed to bring the dangerous drugs to Hong Kong for a reward of US$4,000.

Starting point

6.In sentencing the applicant, the judge stipulated a starting point of 21 years’ imprisonment.  In doing so, she said that she had regard to the judgments of this Court to which she had been referred by counsel for the applicant.[1]

Discount

7.Having regard to the applicant’s plea of guilty, the judge sentenced the applicant to 14 years’ imprisonment.

Application out of time

8.In an affirmation, filed with the court on 10 June 2015, the applicant sought to explain the delay of about 6 years and 4 months in making the application by saying, “I never know about appeal time.” Today, for the first time he claimed that the barrister who had represented him before Bokhary J, namely Mr Michael Arthur, had told him to wait to be contacted by him before mounting an appeal.

Grounds of appeal against sentence

9.In his home-made grounds of appeal, dated 10 June 2015, the applicant asserted that the imposition of such a lengthy term of imprisonment was “…terrifying to me”.  He asked for forgiveness and a reduction in his sentence.  Today, he said that he was a first offender, who had fallen into bad company.  He was not aware of the consequences of his actions.

The respondent’s submissions

10.For the respondent, Ms. Janice Cheuk, SPP(Ag), submitted that the delay in the present case was substantial and not explained acceptably by the applicant.  She submitted that trafficking unlawfully in more than 600 grammes of heroin was to be regarded as falling in the “very large quantities”, for which sentences of over 20 years’ imprisonment were appropriate.[2]

A consideration of the submissions

Application out-of -time

11.We do not accept that the explanations advanced by the applicant in any way explained or justified satisfactorily the fact that the application was made about 6 years and 4 months out of time.

12.Given that the applicant unlawfully trafficked in 856.81 grammes of heroin hydrochloride in circumstances of aggravation, namely by way of importation into Hong Kong, the starting point stipulated for sentence of 21 years’ imprisonment and the sentence of 14  years’ imprisonment imposed on the applicant were clearly not manifestly excessive.

Conclusion

12. For the reasons we have given, we refuse the application for leave to appeal against sentence out of time.

Ms. Janice Cheuk, SPP(Ag), of the Department of Justice, for the respondent

Applicant appeared in person

[1]  HKSAR v. Vaca Mingyao (CACC 164/208; unreported, 1 December 2008); HKSAR v Mohamed Abubakar Nazir (CACC 318/2007; unreported, 3 October 2008) and HKSAR v Garcia Palacios Marco Antonio (CACC 154/2007; unreported, 5 February 2008).

[2] HKSAR v. Lau Tak Ming [1990] 2 HKLRD 370 at page 387 E-F.