HKSAR v. Aninwonye Emmanuel Chukwuemeka

CACC 84/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 84 OF 2016

(ON APPEAL FROM HCCC NO. 44 OF 2011)

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BETWEEN

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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.Following his plea of guilty at his committal in the Eastern Magistracy on 11 February 2011 in respect of a single count of trafficking unlawfully on 20 September 2010 in a dangerous drug, namely 0.66 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the applicant was committed to the High Court, where he duly appeared for sentence before Line J (“the judge”) on 7 April 2011. The judge sentenced him on the same day to 14 years’ imprisonment.

2.By way of a notice (Form XI) and an affirmation both dated 21 March 2016, the applicant seeks leave to appeal against the sentence out of time.  He was at the time of filing these documents some 4 years and 10 months out of time.

Prosecution case

3.The facts admitted by the applicant were these.

4.At about 3:10 pm on 20 September 2010, the applicant was intercepted at Hong Kong International Airport on his arrival from Lagos, Nigeria via Doha in Qatar.  Although nothing incriminating was discovered in his luggage by Customs Officers, his behaviour had given them cause for suspicion.  An X-ray confirmed the presence of objects in his body, as a result of which he was conveyed to Queen Elizabeth Hospital for examination.

5.The applicant subsequently discharged 67 pellets, which were found on analysis to contain 0.98 kilogramme of a solid containing 0.66 kilogramme of cocaine, with a street value at the time of some HK$886,900.

6.The applicant admitted during a video recorded interview on the next day inter alia that:

(a)  He was a businessman living in Lagos who, in late July 2010, had come to know a person named “KCANDJJ” whilst he was in Hong Kong;

(b)  The two men had subsequently talked on the telephone after the applicant returned to Lagos;

(c)  Later, “KCANDJJ” gave him some money to purchase a ticket in order to fly to Hong Kong;

(d)  In a hotel room in Lagos, he met a person sent by “KCANDJJ” who instructed him to swallow 67 pellets;

(e)  He was promised a reward of US$4,000 after completion of the task;

(f)  He was instructed to stay in Chungking Mansions and to call “KCANDJJ” to make further arrangements; and

(g)  He was told that the substance inside the pellets was used in the making of medicine.

7.The applicant subsequently admitted in the Summary of Facts that he had trafficked in all of the dangerous drugs in question.

Reasons for sentence

8.The judge adopted a starting point in respect of the quantity of 0.66 kilogramme of cocaine narcotic of 20 years’ imprisonment in accordance with the guidelines laid down in HKSAR v Abdallah [2009] 2 HKLRD 437.  He then enhanced the starting point by 1 year for the international element involved in bringing the dangerous drugs into Hong Kong, arriving at a notional sentence after trial of 21 years’ imprisonment.  He then reduced that notional sentence by one-third for the applicant’s guilty plea, and sentenced him to 14 years’ imprisonment.

Reasons for lodging the leave application out of time

9.In his affirmation attached to his Grounds of Appeal dated 21 March 2016, the applicant said that he had recently met a fellow inmate who had trafficked in a larger quantity of cocaine but was serving a lesser sentence.  In his submissions filed on 7 July 2016, the applicant explained that his application for leave to appeal against sentence had been made out of time because it was only relatively recently, following discussions with other inmates, that he had come to know that there were several cases involving higher quantities of dangerous drugs where lower sentences had been passed.  He identified four particular cases, three of which were decisions at first instance and one of which was a decision on appeal: namely, HCCC 265/2011; HCCC 386/2015; HCCC 440/2015; and CACC 143/2014.

10.In his earlier affirmation, the applicant also set out the circumstances of family hardship, which his family had had to endure since his incarceration.  They are said to be:

(a)  his father and his elder brother, who took care of his wife and child, had both died during his imprisonment;

(b)  his remaining brother was suffering from a mental disorder;

(c)  his elder brother, who had died, was survived by a wife and four children;

(d)  his mother, a housewife, was overburdened with the above family difficulties; and

(e)  he was the breadwinner of his family.

11.He also stated in his affirmation that he had given information to Customs Officers concerning the person who gave him the dangerous drugs; and he believed that this person had been arrested in the Mainland, although he did not know whether this information was true.

12.He further attached mitigating letters from Fr Patrick Colgan of the Missionary Society of St Columban and from his family members and asked for the Court’s leniency.  Mr Simon Kwong, on behalf of the respondent, does not object to this new material going before the Court.

The respondent’s submissions

13.In his submissions, Mr Kwong invited the Court to consider (i) the length of the delay in applying for leave to appeal against sentence; (ii) whether there has been a reasonable explanation for that delay; and (iii) whether sufficient grounds of appeal against sentence have been demonstrated: see HKSAR v Oh Chun Kit [2013] 1 HKLRD 437, at para 3.  He submitted that extenuating family or domestic circumstances are not valid reasons for granting an extension of time: see HKSAR v Masham Deborah James(unrep., CACC 381/2015, 26 May 2016),at para 17.

14.It was argued that the applicant had not provided any reasonable explanation for the substantial delay of 4 years and 10 months such as to justify granting leave to appeal out of time.

15.As for the merits of the appeal, Mr Kwong submitted that there are none.  He argued that the judge had correctly followed the sentencing guidelines for cocaine set out in Abdallah, the relevant band of sentence for600-1200 grammes of narcotic being 20-23 years’ imprisonment.  He contended that if one were being strictly arithmetical in respect of the quantity involved in the present case, 0.66 kilogramme of cocaine narcotic would warrant about 20.3 years’ imprisonment before enhancement.  The judge adopted a starting point of 20 years’ imprisonment, which is unassailable.

16.Mr Kwong further submitted that three of the four cases relied upon by the applicant[1] were all first instance decisions and in no way binding on this Court. Moreover, they are distinguishable on their own facts and circumstances.  Although the remaining case cited by the applicant[2] was the subject of an appeal, Mr Kwong pointed out that the Court had held in that case that the enhancement of only 6 months’ imprisonment for the international trafficking in some 670 grammes of heroin narcotic was too lenient.

17.In respect of enhancements for the international element in drug trafficking, Mr Kwong pointed out that inAbdallah, it had been held that where the weight of the narcotic was above 1 kilogramme, the Court did not envisage that the enhancement would be less than 2 years’ imprisonment.  He suggested that the 1-year enhancement adopted by the judge in the present case for more than half a kilogramme was appropriate, in line with the general sentencing practice at the time and in complete accordance with the subsequent guidelines set out in HKSAR v Chung Ping Kun (unrep., CACC 85/2014, 2 July 2014].  Accordingly, the sentence could not be said to be either manifestly excessive or wrong in principle.

18.As for the applicant’s claim that he had assisted the authorities, Mr Kwong said that the applicant had only provided the nickname and a general description of the appearance of his alleged accomplice, and no further information had been given to enable any meaningful investigation to commence.  Not surprisingly, no one has ever been arrested as a result of this information.  Mr Kwong submitted that the applicant was not entitled to anything greater than a one-third discount for plea.

19.In respect of the family hardship said to have been suffered by the applicant’s family, such claims were by no means unique. Extenuating family circumstances could not amount to any mitigation where serious offences of international drug trafficking were concerned: see HKSAR v Anyalechi [2016] 2 HKLRD 20, at para 17.

Consideration

20.No good reasons have been placed before this Court to explain why it has taken nearly 5 years for the applicant to file a notice of his intention to seek leave to appeal against sentence.  Extenuating family circumstances cannot justify the granting of leave so far out of time and are, in any event, not uncommon with prisoners serving long sentences.

21.As for the reliance on other sentences at first instance, which the applicant says he has only lately come to hear about, and which have not been the subject of appellate consideration, we repeat, yet again what we said in HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, at para 36:

“…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.”

To exemplify why appellate courts adopt this approach, we would point out that in two of the cases referred to by the applicant, namely HCCC 386/2015 and HCCC 440/2015, the sentencing judge accorded each defendant a 40% discount for assistance he had rendered.  By contrast, the discount in the present application was the conventional one-third, since the applicant gave no fruitful assistance to any authority. The circumstances of mitigation in these cases were, therefore, quite different.

22.In relation to the one case cited by the applicant which did result in an appeal, namely HKSAR v Rado Mary Litren Adhiambo (unrep., CACC 143/2014, 12 December 2014) the Court, at para 9, characterised the 6 months’ enhancement adopted by the sentencing judge in respect of the international element for importing 670 grammes of heroin narcotic into Hong Kong as “unduly lenient”.  We are confident that the Court would have said the same thing in respect of the final case referred to by the applicant, namely HCCC 265/2011, had it ever reached the Court of Appeal, since the same 6 months’ enhancement was given in that case in respect of the international trafficking in 659.33 grammes of heroin narcotic.

23.Indeed, it should be noted that when the defendant in HCCC 265/2011 was sentenced, another defendant in HCCC 264/2011 was also dealt with at the same time by the same judge, albeit that the cases were factually unconnected, save that both defendants had brought the same type of dangerous drugs in question across the border into Hong Kong.  The reason for their being dealt with at the same time by the same judge appears to have been that the same point as to the correct classification of monoacetylmorphine hydrochloride for sentencing purposes had arisen in each case.  The sentence of the other defendant in HCCC 264/2011 (in respect of the importation of 516.86 grammes of heroin narcotic) did, however, become the subject of appellate consideration in Masham Deborah James (referred to in another connection supra at para 13), when, like the applicant before us, she applied for leave to appeal against sentence out of time some 3 years and 8 months’ later.

24.It is noteworthy that the Court in Masham Deborah James had this to say of the sentence passed by the judge at first instance:

“20.  Accordingly, but for the matter which the judge said he accepted as “strong mitigation”, the duly enhanced overall sentence in the applicant’s case after trial could have been, on an arithmetical basis in accordance with guidelines, as much as 18½ years’ imprisonment for the quantity of heroin concerned which had been imported into Hong Kong.  The judge’s adoption of 16½ years’ imprisonment after trial, therefore, was a much lower starting point than it should have been, resulting in a sentence after the appropriate discount which was correspondingly unduly lenient.

21.  With great respect, this reduction was not a proper use of judicial discretion.  There is a wider public interest which calls for those who are convicted of international drug smuggling to and through Hong Kong to be dealt with severely and consistently in accordance with sentencing guidelines which have been in existence for many years.  If not severely, Hong Kong will quickly become a destination or transit point for the dissemination of dangerous drugs around the region, where penalties are even more drastic: if not consistently, other defendants will wonder why they are being dealt with more harshly, or seek to justify a reduction of their sentence on appeal by reference to other more lenient sentences, sometimes many years after the original sentence has been passed.” (Emphasis supplied)

25.The Court in Masham Deborah James would appear to have been prophetic.  For the unjustified leniency of an earlier sentence in an unrelated case is precisely what has prompted the application for an extension of time before us today, almost 5 years after the applicant was originally sentenced.  As we have said, in both HCCC 264/2011 and HCCC 265/2011, the sentencing judge had adopted a 6 months’ imprisonment enhancement for the international element, when he should have adopted 1 year.  Yet the applicant relies on what was an unduly lenient enhancement to justify his application for leave to appeal against sentence out of time.

26.There can be no question that the starting point adopted in the present case for the quantity of narcotic concerned was entirely in line with the relevant guidelines.  Furthermore, the enhancement of 1 year for the international element was equally appropriate: anything less would have been inappropriate.  Indeed, we observe that the applicant’s own counsel had in fact urged the judge during mitigation to enhance the sentence by 1 year, to which submission the judge duly acceded.

Conclusion

27.There is no merit whatsoever in this appeal. The application for leave to appeal against sentence out of time is accordingly refused.

Mr Simon Kwong PP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] HCCC 265/2011; HCCC 386/2015; and HCCC 440/2015.

[2] HKSAR v Rado Mary Litren Adhiambo (unrep., CACC 143/2014, 12 December 2014).