HKSAR v. Maftah Nuru Shebe

CACC 189/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 2016

(ON APPEAL FROM HCCC NO. 358 OF 2012)

____________

BETWEEN

____________

________________________

J U D G M E N T

________________________

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 13 years’ imprisonment imposed on her by V. Bokhary J on 12 December 2012, following her plea of guilty on 12 October 2012 in the Eastern Magistracy, to a single charge of trafficking unlawfully on 25 March 2012 in a dangerous drug, namely 544.63 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.The applicant gave notice of her application for leave to appeal against sentence by filing Form XI and her affirmation with the Court on 27 June 2016.  Accordingly, the application was made 3 years and 5 months out-of-time.

The facts

3.On 25 March 2012, the applicant, a 40-year-old Tanzanian lady, was intercepted at the Arrival Hall of the Hong Kong International Airport by customs officers on her arrival from Doha.  A search of her revealed 20 packets of heroin hydrochloride, contained in sanitary napkins found in her underpants. Whilst detained in custody she discharged 42 packets of heroin hydrochloride.  The total of 544.63 grammes of heroin hydrochloride had an estimated retail value of $712,938.24.

4.The applicant accepted that she was trafficking unlawfully in those dangerous drugs.

Reasons for sentence

5.In sentencing the applicant V. Bokhary J stipulated a starting point for sentence of 18½ years’ imprisonment.  For the aggravating factor of the importation of the dangerous drugs into Hong Kong, the judge enhanced that starting point by one year’s imprisonment.

Discount

6.Having determined that “there is really no real mitigation apart from your plea of guilty”, the judge afforded the applicant a discount of one-third from the resulting total sentence of 19½ years’ imprisonment.  Accordingly, the judge sentenced the applicant to 13 years’ imprisonment.

Application for leave to appeal out-of-time

7.In so far as the applicant advanced reasons for making her application for leave to appeal against sentence out-of-time, she stated in her affirmation :

“ I have discovered some reasons as to why I should appeal. Attached is the letter with full details.”

8.In the attached letter, the applicant explained that she had given birth to a baby whilst in custody.  The baby was now taken care of by a foster family.  Also, she asserted that whilst in custody she became aware of some cases in which defendants had been sentenced to lesser periods of imprisonment, notwithstanding that they had trafficked unlawfully in greater amounts of dangerous drugs.[1]

9.Today, the applicant explained that she had waited until her baby was old enough to be taken into the care of foster parents before giving notice of her application for leave to appeal against sentence.

Grounds of appeal against sentence

10.Clearly, although she did not state so specifically in her written communication with the Court, the applicant invited the Court to have regard to the sentences imposed on others as evidencing the fact that the sentence imposed on her was too high.  Also, she invited the Court to reduce her sentence so that she could return to Tanzania to look after her baby.  However, today the applicant acknowledged “My sentence is right, but I want to come out earlier to take care of my child.”

The respondent’s submissions

11.Mr Simon Kwong, for the respondent, submitted that having regard to the length of delay in making the application for leave to appeal against sentence, the explanation provided by the applicant and the grounds of appeal this Court should determine that there was no reasonable explanation for the delay and refuse her application for leave to appeal out‑of-time.[2]

12.MrKwongsubmittedthatnoneofthegroundsadvancedbytheapplicantwouldjustifyareductioninsentence.  He said that an arithmetic calculation of the appropriate starting point to be taken for sentence, identified the sentence as 18.6 years’ imprisonment.  Further, having regard to the judgments of this Court in HKSAR v Abdallah Anwar Abbas [3]and HKSAR v Chung Ping Kun [4], the enhancement of that sentence by the judge of one year’s imprisonment was entirely appropriate.

13.Mr Kwong submitted that the applicant’s reliance on the sentences imposed in the two cases to which she made reference in her affirmation was misplaced.  In HKSAR v Kwendo Jane Nelly Awour, in sentencing the defendant, Deputy High Court Judge ST Poon said, in affording the applicant a discount of 50% from that taken as the starting point for sentence, that there were “special circumstances peculiar to the defendant that justified a further reduction in sentence”.  Also, Mr Kwong pointed to the fact that the judge clearly accepted mitigation advanced on behalf of that defendant that she had assisted Father Wotherspoon’s successful campaign to persuade women in Tanzania not to succumb to the temptations offered by those who trafficked unlawfully in dangerous drugs. 

14.Of the sentence imposed in HKSAR v Massogoa Nasra Hassani, Mr Kwong invited the Court to note that in its judgment in HKSAR v Feruzi Mariam Haruna [5] this Court had observed of that case that the judge had stipulated a starting point for sentence that was considerably less than that which resulted from an arithmetic calculation and that the eventual sentences were generous.

A consideration of the submissions

15.The applicant has failed to advance any cogent explanation for the fact that the application for leave to appeal against sentence out‑of‑time was filed 3 years and 5 months out‑of‑time.

16.It is to be acknowledged that in the two cases to which the applicant has referred this Court the sentences imposed on the defendants were apparently disproportionate to the sentence imposed on the applicant.  No doubt, it is that apparent disparity that has caused the applicant to harbour a grievance and to launch this application out‑of‑time.  However, as Mr Kwong has pointed out the judge who imposed sentence inHKSAR v Kwendo Jane Nelly Awour said that there were special circumstances which justified affording the defendant a discount of 50% from that taken as the starting point for sentence.  Similarly, as Mr Kwong pointed out, the sentence imposed by the judge inHKSAR v Massogoa Nasra Hassani was described by this Court as “generous”. In context, that is to be taken as meaning that there was no obvious justification for that sentence.

17.Even if a judge in another case has been unjustifiably lenient in the sentence imposed on a particular defendant or even if the sentence was plainly wrong, it does not necessarily enure to the benefit of an applicant in this Court.  As this Court has said on repeated occasions, first and foremost regard is to be had to whether or not the sentence of imprisonment imposed on the applicant was the appropriate sentence.  The applicant was correct to acknowledge that the sentence imposed on her was “right”.  For the reasoning advanced in the written submissions of the respondent, which we accept, we are satisfied that the sentence of 13 years’ imprisonment imposed on the applicant was entirely appropriate.

Conclusion

18.In the result, whilst this Court has sympathy for the applicant’s family circumstances, there being no reasonable explanation for the applicant’s application for leave to appeal against sentence being out‑of‑time by 3 years and 5 months, and there being no merit in the grounds of appeal, we refuse the application.

Mr Simon Kwong, SPP(Ag.), of the Department of Justice, for the respondent

The applicant appeared in person

[1] HKSAR v Kwendo Jane Nelly Awour (HCCC 401/2014) and HKSAR v Massogoa Nasra Hassani (HCCC 234/2013).

[2] HKSAR v Oh Chun Kit [2013] 1 HKLRD 437.

[3] HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.

[4] HKSAR v Chung Ping Kun [2014] 6 HKC 106.

[5] HKSAR v Feruzi Mariam Haruna (CACC 12/2014; unreported, 10 June 2014 at paragraph 10).