HKSAR v. Anyalechi Ugochukwu Gideon

CACC 184/2015

CRIMINAL APPEAL NO. 184 OF 2015

(ON APPEAL FROM HCCC NO. 465 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 24 October 2014, the applicant pleaded guilty before a magistrate to a charge of unlawful trafficking, as a result of which he was committed to the High Court for sentence. On 20 January 2015, the applicant confirmed his plea before Deputy Judge D’Almada Remedios (“the judge”) to a single count of unlawful trafficking in 1.17 kilogrammes of a solid containing 0.56 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced the same day to 13 years and 4 months’ imprisonment.

2.Notwithstanding his plea of guilty, the applicant filed a notice of application for leave to appeal against conviction and sentence out of time (Form XI) on 5 June 2015, by which time he was some 15 weeks out of time.  In his affirmation, the applicant states that the reason for the delay in filing notice of his intention to appeal was that he was shocked, frustrated and disappointed after conviction; secondly, he said he wanted “to wait and send some letters of apology to some of those people related to my case”; and thirdly, he wanted to serve at least 2 months’ imprisonment in order to demonstrate his remorse for his wrongdoing.

The facts

3.The applicant admitted a Summary of Facts following his plea of guilty to the following effect.  He had arrived at Hong Kong International Airport from Addis Ababa on 21 May 2014.  Since internal concealment was suspected by Customs Officers, the applicant was sent to Queen Elizabeth Hospital (QEH) for medical examination.  The presence of foreign objects inside the applicant’s body was confirmed and he was thus detained. During his detention at QEH, he discharged altogether 60 packets, consisting of a total of 1.17 kilogrammes of a solid containing 0.56 kilogramme of cocaine.  The estimated retail value of the dangerous drugs at the time of seizure was HK$1,150,110.  Under caution, the applicant claimed, inter alia, that the substance which had been given to him by a male whom he knew as ‘Pakistan’ in Addis Ababa was semolina; that he would be contacted in Hong Kong for the collection of the substance; and that he was coming to Hong Kong in connection with a clothing business for which his air tickets would be paid.  At the time of plea, however, the applicant admitted that he was trafficking in the seized dangerous drugs.

Mitigation

4.The applicant, who is a Nigerian national albeit living in Cameroon, was 35 years old at the time of sentence with no criminal record.  He is a married man with two young children.  His wife and children both live in the United States, where the wife works as a nurse.  The applicant had been scheduled to join his family on a permanent visa in June 2014.

5.Unfortunately, before he could do so, he succumbed to the temptation to carry drugs to Hong Kong on the promise of a wealthy businessman that he would become the manager of that businessman’s toy company in the United States, as well as the supplier of all bedding and garments required by a particular hotel in Nigeria.  The applicant had pleaded guilty at the earliest opportunity before a magistrate and he requested forgiveness and leniency on his sentence.  To that end, he had himself written a letter in mitigation, which was presented to the judge.

Reasons for sentence

6.In view of the quantity involved, the judge considered the appropriate starting point to be one of 19 years’ imprisonment.  For the international element of bringing the drugs across the border into Hong Kong, the judge enhanced that starting point by 1 year to 20 years’ imprisonment.  She then accorded the applicant a full one-third discount, resulting in a sentence of 13 years and 4 months’ imprisonment.

Grounds of appeal

(Against conviction)

7.In his initial Grounds of Appeal, attached to his Form XI application, the applicant states that he had pleaded guilty to show his regret over his involvement in drug trafficking but that he wished to appeal against his conviction because:

(a) he is genuinely remorseful;

(b) he was a garment trader and had never used, bought or sold drugs to anyone in his life;

(c) the drugs were given to him by a friend he had met in Hong Kong;

(d) he had committed more than US$21,000 into the hands of certain people in respect of a gold business; he was frustrated in seeking to recover his money and ended up in jail as a result; and

(e) he was sorry but claimed he did not know what happened to him.

(Against sentence)

8.In the same Notice, the applicant states that:

(a) his grandmother-in-law had passed away on receiving news of his conviction, and he might also lose his mother too if she eventually finds out that he is in jail;

(b) his wife and children are in need of his care and support;

(c) his business, as well as the education of his children, have been acutely affected by his predicament; and

(d) he is remorseful and asks the Court to consider his past clear record.

Respondent’s submissions

9.Mr Derek Wong, on behalf of the respondent, points out that the applicant has not given any sensible explanation for mounting this application some 15 weeks out of time.  He cites the case of R v Wong Kai Kong [1990] 1 HKC 279 in support of his submission that substantial grounds must be shown for the delay before a court will permit an applicant to appeal out of time.  Furthermore, the longer the delay, the more onerous is the duty on the applicant.

10.Mr Wong accepts that it is possible for the Court to entertain an application to appeal against conviction, even though the applicant has pleaded guilty to the offence, but only on the principles laid down in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125, at paragraph 25:

“25. An unequivocal guilty plea can be rendered a nullity if any one of the circumstances is applicable, according to the cited decisions:

(1) The facts admitted by the defendant do not amount to the offence with which he is charged;

(2) The admitted facts are equivocal as to guilt;

(3) The plea was tendered to a charge which was defective on its face or invalid or unclear;

(4) The plea was tendered involuntarily, e.g., induced by duress or misrepresentation or was not an exercise of free choice;

(5) The plea was induced by fraud or made under a fundamental mistake;

(6) The plea did not result from a deliberate and informed decision.”

11.Mr Wong says none of those criteria can conceivably apply in this case.  On the contrary, the applicant’s Form XI grounds, his affirmation in support of his application for leave to appeal out of time, and the letter he presented to the court in mitigation all plainly and unequivocally acknowledge that he committed the offence of trafficking in dangerous drugs.  Accordingly, there can be no merit in any appeal against conviction.

12.So far as the application for leave to appeal against sentence out of time, the respondent’s position is that the judge’s arithmetical approach to starting point by reference to the quantity of narcotic was unimpeachable.  It was further entirely appropriate for the judge to have enhanced the sentence by 1 year’s imprisonment for bringing more than half a kilogramme of cocaine narcotic across the border into Hong Kong. Even though the guidelines in HKSAR v Chung Ping Kun [2014] 6 HKC 106 only came into effect six weeks after this offence was committed, they did no more than formalise a general practice that was already in operation, with some exceptions, long before the case was decided.

13.In respect of the applicant’s family circumstances, the respondent says that they cannot amount to any mitigation with offences of such seriousness.

Discussion

14.No reason at all, let alone a good one, has been put before us as to why we should entertain an appeal against conviction in circumstances where the applicant, who was legally represented at all material stages of these proceedings, had pleaded guilty before a magistrate on 24 October 2014 and confirmed his plea on 20 January 2015 before the High Court, even producing through his counsel a letter in his own hand to the judge, stating in terms:

“I acknowledge the fact of the charge and have pleaded guilty over it. I hereby bow and kneel before (the court), the Customs Chief and the entire team to apologise over my involvement into this criminal act.”

There can be no basis for this Court to consider an appeal against conviction and the application for leave to appeal out of time is refused.

15.In relation to sentence, the quantity of 560 grammes of cocaine narcotic, which fell within the upper quadrant of the relevant bracket of 400 to 600 grammes under R v Lau Tak Ming [1990] 2 HKLR 370, which guidelines were applied to cocaine by virtue of the decision in R v Pedro Nel Rojas [1994] 2 HKCLR 69, would have merited a sentence of 15 to 20 years’ imprisonment after trial.  There can be no conceivable complaint about the judge’s adoption of a starting point of 19 years’ imprisonment in respect of that quantity.

16.Similarly, there can be no valid issue taken over the enhancement of that starting point by 1 year for the international element.  Accordingly, the notional sentence after trial of 20 years’ imprisonment adopted by the judge was entirely correct.

17.As for the applicant’s family circumstances, they cannot amount to any mitigation of an otherwise proper sentence for an offence of such gravity.  Such circumstances are by no means unique to the applicant.  However, personal circumstances cannot deflect the courts from applying the law firmly and consistently where such serious offences of international drug trafficking are concerned.

18.No good reason having been shown as to why this Court should grant the applicant leave to appeal against an otherwise entirely appropriate sentence out of time, this application is likewise refused.

Conclusion

19.The applications for leave to appeal against conviction and sentence out of time are both refused.

Mr Derek Wong SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person