HKSAR v. Masembo Kilugaja Joram

CACC 271/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 271 OF 2015

(ON APPEAL FROM HCCC NO. 248 OF 2013)

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BETWEEN

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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 sought leave out of time to appeal against the sentence of 12 years’ imprisonment imposed on him on 9 August 2013 by Poon J following his conviction on his plea of guilty to a single charge of trafficking unlawfully in a dangerous drug, namely 0.93 kilogramme of a mixture containing 0.45 kilogramme of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. On his plea of guilty in the Magistracy on 18 June 2013, the applicant had been committed for sentence to the Court of First Instance.

2.The applicant applied for leave to appeal against sentence out of time, supported by his written submission, on 24 August 2015.  On 6 November 2015, he filed an affidavit in support of the application.  It follows that his application for leave to appeal against sentences was made 23 months out of time.

The facts    

3.On 20 December 2012, the applicant, a Tanzanian citizen, arrived at Hong Kong International Airport on a flight from Nairobi.  Having been detained on suspicion of having concealed dangerous drugs inside his body, the applicant was detained in Queen Elizabeth Hospital where subsequently he discharged 65 packets which were found to contain the heroin hydrochloride the subject of the charge.  Having been arrested and cautioned the applicant admitted that he had swallowed the dangerous drugs, in which he was trafficking unlawfully.

Reasons for sentence

4.In her reasons for sentence, the judge acknowledged that the applicant was a married man with two children and that he was of “clear record”.

5.In sentencing the applicant, the judge said :

“ I have taken into account the nature of the offence, the quantity of the drugs involved, the appropriate sentencing authorities and tariffs, as well as the handwritten letter of the defendant in which he offered his apologies…”

6.Then, the judge noted that the appropriate starting point for sentence for trafficking unlawfully in heroin, in the band of 400 to 600 grammes, was in the range of 15 to 20 years’ imprisonment.

The international element

7.Next, she said that “an international element is present which is an aggravating feature calling for enhancement of not less than two years should the narcotics weigh about 1 kg.  In this case, the narcotics are less than 1 kg.”

Starting point for sentence

8.In the result, the judge stipulated a starting point for sentence of 18 years’ imprisonment.

Discount

9.Having afforded the applicant a discount of sentence of one-third for his plea of guilty, she sentenced the applicant to 12 years’ imprisonment.

The application for leave to appeal out of time

10.The applicant asserted in his affidavit that he had not been advised by his legal representatives at the sentencing hearing that there were available to him grounds of appeal against sentence.  In support of that assertion, he exhibited to his affidavit a form entitled ‘Counsel’s Case Report’ signed by counsel representing him before the judge, in which counsel advised the Legal Aid Department that he certified that, “I am of the opinion that there are no reasonable grounds for appeal against sentence.”

11.The applicant went on to assert that in early July 2015 he had learned from his fellow inmates that they had been sentenced to much shorter terms of imprisonment, for trafficking in larger quantities of heroin, than the sentence to which the applicant had been sentenced.  As a result, soon afterwards he had sought the assistance of the Welfare Officer of the Correctional Services at Shek Pik Prison to make an application to appeal against sentence out of time.  On 24 August 2015, he had filed with the Court his notice for leave to appeal against sentence out of time in Form XI, together with a letter dated 11 August 2015 in which he sought assistance to make that application.

Grounds of appeal against sentence

12.On behalf of the applicant, Mr Andy Hung advanced two grounds of appeal against sentence. First, that the judge erred in not stipulating the initial starting point taken for sentence and identifying the level of the enhancement of sentence to reflect the aggravating factor of the international element in the commission of the offence.  Secondly, that, not having applied the guidelines for sentence set out in the judgment of this Court in The Queen v Lau Tak Ming [1] properly, the judge had adopted a starting point for sentence which was too high.  Having regard to the fact that the applicant trafficked unlawfully in only 450 grammes of heroin hydrochloride, in his written submissions he suggested that the appropriate initial starting point was, “just above 15½ years”.  However, it is oral submissions today, he accepted that, in light of the authorities referred to by the respondent, the appropriate initial starting point was 16 years and 3 months’ imprisonment.  Then, in his written submissions, he suggested that the appropriate level of enhancement of sentence to reflect the international element was 6 months’ imprisonment.[2]  However, once again in his oral submissions, in light of the authorities referred to by the respondent, he resiled from that position and accepted that enhancement of sentence for the international dimension of the commission of the offence should be in the range of more than six months but less than one year’s imprisonment.

The respondent’s submissions

13.In his most helpful written submissions, Mr Derek Wong for the respondent conceded that the application for leave to appeal against sentence out of time should be allowed, on the basis that this court did not shut out a substantial and plainly arguable ground of appeal.  He suggested that an arithmetic application of the guidelines stipulated in the judgment of this Court inLau Tak Ming resulted in the determination that the appropriate starting point for sentence for trafficking unlawfully in 450 grammes of heroin hydrochloride was 16 years and 3 months’ imprisonment.

14.He invited the Court to note that in Abdallah, in addressing the appropriate sentence by which the starting point was to be enhanced to reflect the aggravating factor, inter alia, of an international element in the commission of the offence, the sentence of 2 years’ imprisonment and there stipulated related to unlawful trafficking in amounts of above 1 kg of heroin hydrochloride.  He submitted that, albeit that the judgment of this Court in HKSAR v Chung Ping Kun [3] was delivered 11 months after the imposition of sentence on the applicant, nevertheless the guidelines stipulated there reflected the sentencing policy of this court as it had developed since Abdallah.  In HKSAR v Chung Ping Kun the guidelines suggested that the aggravating factor of an international element in the commission of the offence of unlawful trafficking in 250 to 500 grammes of heroin hydrochloride was to be visited with an enhanced sentence in the range of 6 to 12 months’ imprisonment.  For his part, Mr Wong suggested an enhancement of sentence of the starting point of 16 years and 3 months’ imprisonment for the applicant of slightly less than one year’s imprisonment was appropriate.

A consideration of the submission

Application for leave to appeal against sentence out of time

15.For the reasons which are set out hereafter, we are satisfied that there is merit in the application for leave to appeal against sentence.  Furthermore, we are satisfied that, notwithstanding the considerable delay in filing the application for leave to appeal out of time, given the applicant was not advised by those representing him at the sentencing hearing that there was merit in an application for leave to appeal against sentence, that it is appropriate to grant the applicant leave to appeal against sentence out of time.

16.With respect to the judge, she fell into error, first in failing to stipulate the initial starting point taken for sentence and, secondly for failing to stipulate the sentence by which it was enhanced.  Instead, the judge stipulated only the resulting starting point taken for sentence.  The obvious necessity to articulate those simple steps taken in sentencing has been the subject of repeated references by this Court.  In the judgment of this Court in HKSAR v Au Siu Ming [4], in which the Court allowed the appeal, quashed the sentence imposed on the appellant and determined sentence afresh, Stuart-Moore, JA said:

“ Despite the numerous occasions on which this Court has said in cases of this kind, however simple or straightforward they may be, that a starting point should be clearly stated so that the defendant is aware of the extent of the credit accorded to him for matters raised in mitigation, the trial judge has nevertheless failed to give any starting point. A defendant is entitled, as a matter of fairness to him, to know what sentence he would have received following a contested trial so that he can see for himself that he has been given the full discount to which is entitled following his plea, and so that this court can properly review the sentence.”

17.Obviously, the same logic applies to an enhancement of sentence.  In consequence of the judge’s failures, this Court has not been informed properly of the process by which the judge determined the ultimate sentence which she imposed on the applicant.  Accordingly, it is necessary for this Court to approach the sentencing of the applicant afresh.

18.An arithmetic approach to the sentencing guidelines articulated in Lau Tak Ming to unlawfully trafficking in 450 grammes of heroin hydrochloride produces, as Mr Wong calculated, a starting point for sentence of 16 years and 3 months’ imprisonment.  Of course, as the judge stated in an exchange with counsel in the course of mitigation,[5] in sentencing she was not confined to a “mathematical approach”.  She was entitled to have regard, inter alia, to the role of the defendant.  Nevertheless, 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.

Enhancement of sentence

19.The reasons for the sentence given by a judge at first instance relied upon by the applicant are two cases in which Line J sentenced two defendants in separate cases on the same day, namely 3 March 2014.[6]  They were cases in which the defendants had unlawfully trafficked in 470 and 477 grammes of heroin respectively, which they had imported the dangerous drugs into Hong Kong, as a result of which, they had been detained at Hong Kong International Airport.  In each case, having had regard to the statements in Abdallah as to the enhancement of sentence in those circumstances, the judge said that, for amounts of less than 1 kg but in excess of half a kilogram, the courts enhance sentence by one year’s imprisonment.  Then, the judge went on to say that, given that the amounts in which each of them had unlawfully trafficked was just under half a kilogram, he enhanced sentence by 6 months’ imprisonment.

20.In HKSAR v Thomasi [7], this Court rejected the approach taken by Line J.  In the judgment of the Court of Appeal, Poon JA said :[8]

“ …the six-month enhancement adopted by Line J was out of line with the sentencing guidelines and policy underpinning enhancement as a deterrent against international trafficking into or outside Hong Kong. Such departure from the sentencing guidelines for no good reason risks sowing inconsistency of approach into that sentencing policy and engendering feelings by other defendants involved in trafficking in similar quantities of drugs that they may have been dealt with harshly by judges who have properly and faithfully applied the guidelines. It might also spawn unmeritorious applications for leave to appeal or even applications for leave to appeal well out of time, as in the present one. Such unjustifiable departures from the sentencing guidelines should be avoided.”

21.Approaching the matter of sentencing the applicant afresh, first we note that an arithmetic calculation of sentence based on unlawfully trafficking in 450 grammes of heroin would produce a starting point for consideration of sentence of 16 years and 3 months’ imprisonment.  However, there was nothing in the mitigation advanced on behalf of the applicant that would justify a reduction in that starting point.  He was a courier of the dangerous drugs, who had made a very determined effort to deliver them to Hong Kong.  Although he was of a clear criminal record in Hong Kong, that was of little substance given that it was his first visit to Hong Kong.  Having regard to the factor of aggravation in the commission of the offence by the international element, we are satisfied that an enhancement of 9 months’ imprisonment from that starting point is appropriate.  Accordingly, the starting point to be taken for sentence is 17 years’ imprisonment.  There is no dispute that the applicant was entitled to a discount of one-third from that starting point.

Conclusion        

22.In the result, treating the hearing of the application for leave to appeal against sentence out of time as the hearing of the appeal, we allow the appeal, quash the sentence imposed by the judge and in its place impose a sentence of 11 years and 4 months’ imprisonment.

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

Mr Andy Hung instructed by Hampton, Winter & Glynn, assigned by Director of Legal Aid, for the applicant

[1] The Queen v Lau Tak Ming [1990] 2 HKLR 370.

[2] HKSAR v Abood Yasser Ali (HCCC 543/2013; unreported, 3 March 2014).  HKSAR v Mohamed Abdulraheem Sadiq Hussein (HCCC 544/2013; unreported, 3 March 2014).

[3] HKSAR v Chung Ping Kun (CACC 85/2014; unreported, 2 July 2014).

[4] HKSAR v Au Siu Ming [1998] 4 HKC 422, at 423 I - 424 C.

[5] Appeal Bundle, page 15 K-L.

[6] HKSAR v Abood Yasser Ali and HKSAR v Mohamed Abdulraheem Sadiq Hussein.

[7] HKSAR v Thomasi (CACC 192/2015; unreported, 20 November 2015).

[8] HKSAR v Thomasi, paragraph 14.