HKSAR v. Smit Hector Edward

CACC 163/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 163 OF 2016

(ON APPEAL FROM HCCC NO. 347 OF 2015)

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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 in the Magistrates’ Court on 21 August 2015 to a single charge of trafficking in a dangerous drug, namely 2 kilogrammes of a solid containing 933 grammes 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 for sentence. On 20 October 2015, the applicant was duly sentenced to 15 years and 4 months’ imprisonment by Deputy Judge Beeson (“the judge”).

2.By way of a notice of application for leave to appeal (Form XI) and a supporting affirmation both dated 6 June 2016, the applicant sought leave to appeal against his sentence out of time.  The application was made some 6 months out of time.

Prosecution Case

3.The applicant, a South African national, was intercepted by Customs officers upon his arrival at Hong Kong International Airport from Nairobi in Kenya on 1 January 2015.  A search of his suitcase revealed a concealed compartment, inside which was a plastic bag containing the dangerous drugs, the subject of the charge.  The estimated retail value of the drugs was HK$1,954,000.

4.Upon his arrest and caution for the offence of trafficking in dangerous drugs, the applicant agreed to participate in a controlled delivery.  However, that operation, which lasted for some hours, ultimately came to nothing.

5.In a subsequent video recorded interview, the applicant admitted, inter alia, that:

(a) He had been approached by three men in South Africa who offered to pay him 20,000 South African Rand if he would carry a suitcase to Hong Kong.  The applicant agreed;

(b) He was accordingly supplied with an air ticket to Cotonou in Benin, and the name of a hotel in which he was to stay there;

(c) At the hotel in Cotonou, he was given the wrapped suitcase and told he was not to open it;

(d) He subsequently flew to Hong Kong via Nairobi with the suitcase; and

(e) He did ask what was in the suitcase but was told that it was not for him to know.

6.The applicant subsequently admitted and accepted that he had been trafficking in the dangerous drugs seized.

Mitigation

7.In mitigation, defence counsel pointed to the applicant’s early plea of guilty, his immediate confession, and his cooperation and participation in the controlled delivery.  It was said that he needed money for a leg operation to remove certain metal implants.  As a result, he owed money and had been threatened by loan sharks.  A medical report from Lai Chi Kok Reception Centre confirmed the presence of metal implants in the applicant’s right leg.

Reasons for Sentence

8.The judge noted that the applicant was aged 46, lived with his wife, his step-daughter and his mother, and had a clear record in Hong Kong.  The applicant was unable to work and remained unemployed after being injured in a traffic accident in 2003; he was in debt to the extent of 30,000 South African Rand and under pressure to repay that debt, when he was approached by the men who inveigled him into committing the present offence.

9.The judge acknowledged that the applicant’s medical report had confirmed the fracture of his right hip, femur and fibula, and that an operation had been performed on him.

10.She noted from the guidelines set out in HKSAR v Abdallah^[1] that for quantities between 600 grammes and 1,200 grammes of narcotic, the sentence after trial should be in the range of 20 to 23 years’ imprisonment.  She also had regard to the levels of enhancement of sentence for those bringing substantial quantities of dangerous drugs into Hong Kong suggested in HKSAR v Chung Ping Kun[2] and considered that such enhancement should be at the higher end of the range of 1 to 2 years’ imprisonment for quantities between 500 and 1,000 grammes of narcotic.  The judge adopted a starting point of 22 years’ imprisonment for the quantity of narcotic concerned.  As for the enhancement for the international element of bringing dangerous drugs across the border, she considered that in the exercise of her discretion she should enhance the sentence by 1 year; thus making an overall notional sentence after trial of 23 years’ imprisonment.

11.Allowing a discount for plea of a full one-third from 23 years, the judge sentenced the applicant to 15 years and 4 months’ imprisonment.

Applicant’s reasons for applying for leave out of time and grounds of appeal

12.In his affirmation dated 6 June 2016, the applicant claimed that “the reason why I appeal so late is because I only recently found out that some of the recent inmates that were recently sentenced had lesser sentences than me according to our purities, and then I found it to be unfair after doing thorough research.”

13.In his Form XI of the same date, he made the same point about disparity and further stated that he had provided assistance to the Customs authorities in a controlled delivery, although ultimately it was unsuccessful.  He referred to the reasons for sentence in two first instance cases, namely HKSAR v Stapelberg Nico[3] and HKSAR v Calderon Gutierrez Hector Edisson[4].

Ground of appeal submitted by applicant’s counsel

14.Having conceded that the disparity argument in respect of the two first instance decisions was not a pursuable ground of appeal, Mr Alex Ng, on behalf of the applicant, nevertheless relied upon a single ground of appeal, namely that the sentence was in all the circumstances manifestly excessive, given the quantity of cocaine concerned and the evident steps taken by the applicant to assist the Customs authorities in making a controlled delivery over the course of some 6 hours.

15.Mr Ng referred to HKSAR v Nkwo Nnaemeka Darlington[5] for the factors[6] to which a sentencing judge should have regard in cases of controlled delivery, which would necessarily vary according to the particular circumstances of each case.  He also cited HKSAR v Jardin Rodela Maningas[7], where this Court had said, at para 16:

“It is our view that the applicant ought to have been given some credit for her preparedness to assist in securing the apprehension of the person or persons in Hong Kong to whom the drugs were to be delivered backed up as that agreement was by action on her part. It is important as a matter of principle to encourage arrested persons to assist in this way and in this case there was no empty offer of assistance but a practical engagement in the exercise, the failure of which did not in any way lie at the door of the applicant...”

16.Mr Ng submitted that there was likewise no evidence to suggest that any fault lay at the door of the applicant for the ultimately unsuccessful controlled delivery operation, and the applicant should still be given some credit for his assistance.

17.By way of comparison with the outcome in the present case, he referred to the decision in HKSAR v Riziki Riziki Hamduni^[8], where a starting point of 21 years had been adopted for trafficking in 958.39 grammes of heroin (which, for sentencing purposes, is treated the same as cocaine), which starting point was duly enhanced by 2 years to reflect the international element.  The resulting sentence after discount was also 15 years and 4 months’ imprisonment, yet no controlled delivery had been undertaken by the applicant in that case.

The respondent’s submissions

Application for leave out of time

18.Mr Raymond Cheng, on behalf of the respondent, argued that the only reason the applicant had provided for his 6 months’ delay in seeking leave to appeal was that he had learnt of a perceived disparity between his sentence and the sentences of other prisoners.  That, however, was not a valid ground for delaying his application.

Details of assistance rendered by the applicant

19.In respect of the controlled delivery involved, Mr Cheng detailed the following circumstances:

(a) Following his apprehension on 1 January 2015 at 7:45 pm, the applicant indicated at about 10:30 pm that he was willing to take part in a controlled delivery.  He explained that he had been instructed to make a call to a named person at a foreign telephone number upon his arrival in Hong Kong;

(b) Accordingly, the applicant called that person at 11:58 pm with a mobile telephone provided to him for that purpose.  Upon instructions, the applicant told the person who answered the call that the hotel he was supposed to check into was full and he requested to be picked up at the airport;

(c) At 12:06 am on 2 January 2015, the applicant received a call from the other person informing him that no one would pick him up at the airport.  He then received another call from a local mobile telephone number, in which another person told him to go to the hotel he was originally supposed to check into;

(d) The applicant received several calls from the same local telephone, while being escorted to the said hotel in Sham Shui Po, enquiring as to his whereabouts and telling him to wait at the hotel lobby upon arrival;

(e) The applicant waited in the hotel lobby from 2:50 am.  However, no one approached him, although he continued to receive calls from different telephone numbers telling him to continue waiting; and

(f) At 5:26 am, the applicant received a final call telling him that no one would come to pick him up at the hotel.  The controlled delivery operation was called off by Customs officers at 6:10 am.

Discount adopted by the judge

20.Mr Cheng relied on the following paragraphs in the Reasons for Sentence (with emphasis added) to demonstrate that the judge did take into account the assistance rendered by the applicant in adopting a lower enhancement for the international element:

“As the narcotic quantity is 933 grammes, any enhancement would be at the higher end of the range.

I take account of the mitigation advanced, the most cogent being the plea of guilty. I note too the co-operation of the defendant from the outset, referring to his assistance with the controlled delivery.

I adopt a starting point for sentence of 22 years, and in the exercise of my discretion, I enhance that by 1 year, which makes the starting point of sentence 23 years.”

21.On the assumption that the enhancement of sentence was 2 years, Mr Cheng has calculated that the separate discount afforded for the applicant’s cooperation (beyond that of the discount for plea) was about 4.3% of the notional sentence after trial.

Authorities

22.Mr Cheng has submitted that in HKSAR v Nkwo Nnaemeka Darlington[9], the Court observed that there could not be any fixed percentage or identifiable range of percentage to be applied to assistance in controlled delivery cases.  Neither a straightjacket approach nor the application of a percentage discount range was desirable; every case was different and there could not be a fixed percentage applied to all or even similar cases.  It was a matter within the discretion of the judge, given the particular factors which bore on the discount to be accorded in any particular case.

23.He then compared the discounts given and the assistance rendered by the applicants in the following cases: HKSAR v Nkwo Nnaemeka Darlington(5.2%); HKSAR v Saavedra Rosamarie Bernardo[10](5%); HKSAR v Gopal Muthusamy[11](7.3%); HKSAR v Jardin Rodela Maningas[12](7.5%); and HKSAR v Chan Oi Hing[13](6.7%).  He emphasised that, unlike the circumstances in HKSAR v Gopal Muthusamy, for example, the controlled delivery in the present case did not result in the arrest of any accomplice, nor was the applicant required to meet his accomplice in person.

24.Mr Cheng also reminded us that the Court of Final Appeal in Z v HKSAR^[14] had endorsed a practice of giving a 40% discount (including the one-third reduction for the plea of guilty itself) to a defendant who had provided valuable assistance to authorities resulting in a conviction but without having had to testify in court; therefore, the component for such assistance could be quantified as an extra 6.7% discount from the starting point.  Accordingly, save in exceptional circumstances, the discount to be given for participation in a fruitless controlled delivery operation should be lower than 6.7%.

25.Mr Cheng further submitted that in the present case, the applicant’s assistance did not result in an accomplice being arrested or indentified, nor was there evidence to suggest that it involved any exceptionally high level of risk or danger.  The 4.3% further discount afforded by the judge could not, therefore, be faulted for being inadequate.

Discussion

26.We must begin with a consideration of the starting point for the narcotic element of cocaine concerned.  The judge adopted a starting point of 22 years’ imprisonment in respect of 933 grammes of cocaine narcotic.  If one were to approach the quantity of dangerous drugs in purely arithmetical terms within the applicable sentencing range, as many sentencing judges do with quantities below 1 kilogramme, the starting point would have been 21 years and 7 months’ imprisonment.  The judge evidently rounded the starting point upwards by 5 months.  A departure from a strict arithmetical starting point is not, by itself, objectionable, but where it is significant it should be explained.

27.In respect of the enhancement for the international element involved, the judge specifically stated that in the exercise of her discretion she was enhancing the starting point by 1 year, having noted that for a quantity of 933 grammes of cocaine narcotic, “any enhancement would be at the higher end of the range” of 1 to 2 years’ imprisonment.  It would appear, therefore, that the judge reduced what the enhancement might otherwise have been because of the applicant’s participation in the controlled delivery operation.

28.The problem with the judge’s approach is that we do not know by how much the judge would have enhanced the starting point had there been no participation in a controlled delivery operation.  Thus, we cannot know with certainty what the real notional sentence after trial would have been, nor what the ultimate discount would have been.  Mr Cheng has assumed that the judge would have imposed a 2-year enhancement on top of the starting point for the quantity concerned and, from the overall figure of 24 years’ imprisonment, has worked out on the basis of that assumption that the discount for the applicant’s participation in a controlled delivery would have been 4.3%, in addition to the one-third discount for plea.  However, the judge said no more than that the enhancement should be at “the higher end of the range” of 1 to 2 years’ imprisonment: she did not say it would have been 2 years’ imprisonment.  So, Mr Cheng’s assumption may not be correct.

29.The proper course for the judge, with respect, would have been to assess the starting point for the quantity of narcotic concerned in accordance with the guidelines in HKSAR v Abdallah, enhance the starting point for the international element in accordance with the guidelines in HKSAR v Chung Ping Kun, and then discount the overall notional sentence after trial by one-third for his timely plea.  Since the starting point has been rounded up by 5 months, and since we do not know what the enhancement would have been had it not been apparently reduced for the applicant’s cooperation in the controlled delivery operation, we think it appropriate to approach sentence again in the more methodical way we have suggested.

30.Having done so, we consider that the starting point for sentence in respect of trafficking in 933 grammes of cocaine as a courier should have been 21 years and 7 months’ imprisonment.  For the international element of bringing this quantity of dangerous drugs across the border into Hong Kong, we would enhance the sentence by 21 months’ imprisonment.  Accordingly, the notional sentence after trial becomes 23 years and 4 months’ imprisonment.  Given the applicant’s plea at the earliest available opportunity, together with the fact that for some 6 hours the applicant participated in a controlled delivery operation by establishing and playing along with his contacts, we would reduce the sentence to 14 years and 6 months’ imprisonment.  The overall discount, therefore, represents 37.85% from the appropriate sentence after trial.

31.In the circumstances, we grant the application for leave to appeal against sentence out of time.  We reduce the sentence of 15 years and 4 months’ imprisonment to 14 years and 6 months’ imprisonment.

Mr Raymond Cheng ADPP (Ag), of the Department of Justice, for the Respondent

Mr Alex Ng, instructed by Director of Legal Aid, for the Applicant