HKSAR v. Kisamo Diana Semali

CACC 43/2018

[2018] HKCA 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 43 OF 2018

(ON APPEAL FROM HCCC NO 307 OF 2015)

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Before :  Hon Pang and Zervos JJA in Court

Date of Hearing : 16 November 2018

Date of Judgment :  16 November 2018

Date of Reasons for Judgment:  23 November 2018

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R E A S O N S   F O R   J U D G M E N T

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Hon Pang JA (giving the Reasons for Judgment of the Court) :

1.On 24 September 2015, the applicant was convicted on her own plea of one count of ‘trafficking in a dangerous drug’, namely 1.25 kilogrammes of a solid containing 702 grammes of cocaine.  She was sentenced by Deputy Judge Wilson Chan, as Wilson Chan J then was (“the Judge”), to 14 years and 6 months’ imprisonment.  Acting in person, the applicant sought leave to appeal against her sentence out of time, which application we dismissed after hearing submissions.  These are our reasons.

BRIEF FACTS

2.The applicant is a Tanzanian national.  She arrived in Hong Kong on a flight from Bujumbura, Burundi via Addis Ababa, Ethiopia on 18 February 2015.  She was stopped at the Green Channel of Customs Arrival Hall B of the Hong Kong International Airport.  Having had her baggage examined by customs officers with nil result, she was escorted to North Lantau Hospital where foreign objects were detected inside her body.  Under caution, the applicant admitted to having swallowed an unspecified drug in Bujumbura and, for secreting that drug into Hong Kong, she would receive a reward of US$6,000.  In North Lantau Hospital and, later, Queen Elizabeth Hospital, the applicant discharged a total of 80 packets of dangerous drugs comprising all the cocaine in question, with a street value then of HK$1,236,250.  She refused to answer any question in a subsequent video recorded interview.

MITIGATION & SENTENCE

3.The following is what the Judge said in respect of the applicant’s background, and the mitigation made on her behalf :

“ By way of personal background, the defendant is 45 years of age. She was born in Tanzania in December 1969. She has received education up to college level. She is a widow with a son. Prior to her arrest, she was a business woman trading in clothing.

The defendant has a clear record.

By way of mitigation, Mr Oliver Davies urged upon the court to take into account her guilty plea, which was entered at the earliest opportunity, and that the defendant has been co-operative ever since her arrest.

Mr Davies also gave detailed background information concerning the defendant and the reasons for her committing the present offence.

In essence, Mr Davies submitted to the court that the defendant committed the present offence out of desperation. The death of her husband left her in a very difficult position financially. She had to raise an extended family of five children. She became heavily in debt.

A mitigation letter from the defendant has been handed up to the court.

However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant offer little mitigation in a serious case of drug trafficking, where severe deterrent sentences are warranted in order to protect the public.”

4.Then applying the tariff case of HKSAR v Abdallah [2009] 2 HKLRD 437, and noting what was said in HKSAR v Chung Ping Kun [2014] 6 HKC 106 about enhancing a defendant’s sentence to take account of the international element of his or her offence, the Judge pronounced :

“ In my view, following the principles set out above and based on the quantity of the narcotic involved, the proper initial starting point for sentence in the present case should be 20 years and 6 months’ imprisonment. 1 year and 4 months should be added to that by way of enhancement for the international element. This will take the starting point up to 21 years and 10 months’ imprisonment.

Finally, I shall give the defendant the full one-third discount for her guilty plea, which was entered at the earliest opportunity at the Magistrates’ Court.

The defendant is accordingly sentenced to 14 years and 6 months’ imprisonment.”

GROUNDS OF APPEAL

5.In an affirmation attached to her Form XI, or Notice of Application for Leave to Appeal dated 13 February 2018, the applicant stated that :

(a)  Back in 2015, upon leaving Queen Elizabeth Hospital after discharging all the dangerous drugs in her body, she was approached by some officers who “promised her a discount in sentence” provided she would supply them with “information that would bear fruit”.

(b)  As a result, she had given the authorities the name, the mobile telephone number and the photograph of a woman “CD”[1], who was subsequently arrested for drug trafficking and is now detained in one of Hong Kong’s prisons.

(c)  She was also a committed participant in Fr Wotherspoon’s campaign to warn Africans about bringing dangerous drugs into Hong Kong.  Newspapers and magazines in Tanzania had been using her story to warn others against following her footsteps.

(d)  Fr Wotherspoon’s campaign was so successful that, over the years, there had been a significant drop in the number of Africans trafficking drugs into Hong Kong.  As in HCCC 145 of 2016, this was a factor which many judges recognised when passing sentence in the High Court.

(e)  That notwithstanding, her counsel in 2015 “did not make enough effort” to notify the Judge of either her cooperation with the authorities or her active participation in Fr Wotherspoon’s campaign.

(f)  She wished the Court of Appeal would take into account the two above-stated considerations and reduce her sentence to enable her to return to her suffering family in as short a time as possible.

6.In a letter dated 29 August 2018, the applicant gave the following explanation for her delay in applying for leave to appeal :

(a)  Her counsel in 2015 had said that her sentence was “normal”, in fact “minimum”, for the quantity of drugs in which she trafficked, and that she should not appeal.

(b)  She herself was also “[too] nervous to appeal”.

(c)  Her mind was, at the time of writing this letter, “back to normal” and, on reflection, she believed her counsel was wrong not to inform the Judge of her involvement in Fr Wotherspoon’s campaign.  She had discovered from other inmates in prison that her involvement in the campaign should earn her some discount.

7.In the same letter, the applicant repeated what she had previously said about this person, “CD”.  She also made reference to one Tanzanian and one Kenyan male whom she had allegedly met in the Burundai Airport, and about whom she had informed the authorities upon being arrested in North Lantau Hospital.  Her version was that although these men were intercepted at the Hong Kong International Airport, the customs officers were unable to find any drugs on them and were about to let them go when, acting on her information, they took a different course and escorted these men to North Lantau Hospital for an internal examination.

8.By a letter dated 10 March 2018, Fr Wotherspoon himself wrote to this Court and stated :

(a)  The applicant joined his campaign not long after her arrest in 2015.  Her efforts consisted of writing home to her family and the Tanzanian authorities to warn people about trafficking dangerous drugs to Hong Kong.

(b)  As evidenced by two on-line articles in 2015, he, Fr Wotherspoon, was in frequent contact with the then head of Tanzania’s Anti-Drug Unit, Godfrey Nzowa.

(c)  As evidenced by two emails in 2015, he had relayed to Mr Nzowa a message from the applicant naming “X”, a man of “Y” nationality whose drugs it was that the applicant had carried, and who was “sending people every day to Hong Kong”.

(d)  Upon her arrest, the applicant had offered to take part in a sting operation at a named address, in the room booked for her by “Z”, but the customs officers were not interested.  He, Fr Wotherspoon, surmised it was because “Z” was a customs informer.

(e)  Upon her arrest, and as a result of her information, two other drug mules who were travelling on the same flight as the applicant, namely one Tanzanian and one Kenyan male, were taken to North Lantau Hospital for examination.

9.By a letter dated 16 September 2018, the applicant attached for the Court’s perusal a letter purportedly written by one Fr Patrick Asenterabi, informing members of the Ntirini Parish in Moshi, Tanzania, of the perils of trafficking dangerous drugs to Hong Kong.  Written in 2015, this letter was said to be illustrative of the applicant’s contribution to Fr Wotherspoon’s campaign as directed to her hometown.

RESPONDENT’S POSITION

10.By their written submissions dated 2 November 2018, the respondent informed the Court of the following :

(a)  Upon her discharge from Queen Elizabeth Hospital on 23 February 2015, the applicant did provide a name “C” or “C1”[2] but not “CD” to the customs officers.  She did not make available this person’s telephone number or photograph, nor did this information result in any arrest or prosecution.

(b)  On a specified date in late 2017, no less than two years and nine months after the applicant’s arrest, a Tanzanian female named “ABCD” was arrested for drug trafficking at the Hong Kong International Airport.  This person’s arrest had nothing to do with the applicant.

(c)  Upon her arrest, the applicant did not offer to partake in any sting operation or controlled delivery.

(d)  On the day of the applicant’s arrest, three other cases of internal concealment of dangerous drugs were detected at the airport.  All of them involved passengers travelling on the same flight as the applicant.  Of the three, two were indeed men of Kenyan and Tanzanian nationalities.  Their interception, however, had nothing to do with the applicant.  The applicant did not inform the customs officers about these men, nor did she identify them in North Lantau Hospital or anywhere else.

11.The above information was subsequently confirmed with full supporting details by Customs Inspector Chan Po-lung, Customs Senior Inspector Mak Wai-ming and Customs Superintendent Lam Kam-wing vide their statements of 8 November 2018 (Chan and Mak) and 12 November 2018 (Lam).  Unlike Inspector Chan and Senior Inspector Mak, Superintendent Lam was not involved in, hence independent of, the investigation of this case.

ORAL SUBMISSIONS

12.In her oral submissions, the applicant did not go beyond repeating what was already stated in the above documents.  On the contrary, she agreed that being detained in hospital, she could not have taken part in any sting operation: she had only given customs officers the name and telephone number of “Y”, she said.  Upon our further enquiry, however, the applicant agreed that even on her account, it was the customs officers who always took the initiative to debrief her, and if she had given any information, they would have carefully recorded it.  She said she could think of no reason why the customs officers should lie about receiving her help.  She accepted that whatever she might or might not have done, the customs officers could already have formed their suspicion of the Tanzanian and Kenyan men at the airport, and that they were only taking their time to escort them to the hospital for internal examination.  The applicant was asked if she had any supplements to what was stated in her, or Fr Wotherspoon’s, correspondence, including the consequences of her providing information through different channels, and her answer was “no”.

DISCUSSION

Participation in Fr Wotherspoon’s Campaign

13.Dealing first with the applicant’s participation in Fr Wotherspoon’s campaign, this Court has for some time been of the view that determining the value of any individual involvement in the programme is “a task for which the executive would generally be better equipped than the Court of Appeal to perform”: HKSAR v Odira Sharon Lensa [2016] 5 HKLRD 249, at paragraph 50.

14.In giving the judgment of the Court in HKSAR v Ndungu Rahab Wanjiru CACC 64/2016 (7 December 2016, unreported), having cited Odira and the earlier case of HKSAR v Akinyi Grace Sylvia CACC 324/2015 (5 May 2016, unreported) with approval, Macrae JA, as Macrae VP then was, added :

“ 21. We are bound by these decisions ….. Any recognition of the applicant’s efforts in support of Fr Wotherspoon’s campaign must be a matter for the executive.”

15.In the recent case of HKSAR v Kilima Abubakar Abbas CACC 143/2016 (18 September 2018, unreported), this Court reiterated the difficulty of tasking judges to assess the value of an individual’s participation in Fr Wotherspoon’s campaign.  Of the three constituting members, one (Macrae VP) commented that the campaign had become a “bandwagon”. By a majority (Lunn and Macrae VPP), it was held that, as a matter of absolute discretion, sentencing judges are permitted (but not required) to give a reduction in sentence on this account which, in any event, should not exceed 3 months.[3]

16.Even for McWalters JA, who constituted the minority and who took the view that “meaningful contribution” to Fr Wotherspoons’ campaign should be rewarded by a discount of 6 months to 1 year for those who are serving “very lengthy sentences”[4], the need to establish such meaningfulness remains cogent.  He said :

“ 225. …… In my view a court called upon to sentence a drug trafficker who seeks a sentencing discount for this form of assistance should first decide whether the actual assistance provided, over the time it has been provided, enables him to confidently form the view that the defendant has contributed meaningfully to Father Wotherspoon’s campaign ……

226. If the judge forms the view that the defendant has made a meaningful contribution to Father Wotherspoon’s campaign then he should reward the defendant for the assistance he has provided to date.

227. This will always be a matter of discretion for the sentencing judge.  In exercising that discretion the judge will take into account the nature and extent of the applicant’s participation in Father Wotherspoon’s campaign, whether that participation has exposed him, or members of his family in his home country, to any risk of harm and the benefit that has flowed to Hong Kong from the campaign.  This is not intended as an exhaustive list of the relevant considerations.”

17.Based on the material before us, we do not think it can be said with confidence that the applicant has made a meaningful contribution to Fr Wotherspoon’s campaign.  There was no attempt to quantify her efforts either by stage or cumulatively and, as pointed out by us during the hearing, except for the reference “Diana” at the bottom, the name of the applicant was not mentioned in the body of Fr Asenterabi’s letter, the only document she had put forward as evidence of her personal effort to warn the people of her hometown of the perils of being involved in drug trafficking.  There was also not the slightest hint, not to mention credible evidence (as opposed to bare assertions) that, as a result of her effort, the applicant or the applicant’s family was exposed to any risks.  As far as we are concerned, all that the applicant has done was to let her case be known in her home country, not unlike many others who were caught in the same situation: the proverbial bandwagon.

18.Whatever was the advice she received at the time of her sentence, and whether that advice was correct generally or at that stage, there is no justification for granting the applicant any discount in sentence on the ground that she has participated in Fr Wotherspoon’s campaign.

Assistance to the Authorities

19.Under this head, the applicant’s various claims were almost entirely at odds with what the respondent and the Customs Department posited as the correct position.

20.We accept the truth of the customs officers’ statements, and would echo what Macrae VP said in Kilima Abubakar Abbas, as follows.  Mutatis mutandis, these remarks must for the same reasoning apply to the situation where some bald assertion of assistance offered is denied by the authorities, wholesale :[5]

“ 83. In my judgment, one must have a measure of faith and trust in the relevant authority in Hong Kong - absent an allegation of mala fides - that the information is or is not of any actual or potential assistance, if that is what the authority says, whatever the defendant may think or have hoped for. Otherwise, the courts will be drawn into endless debates with the authority concerned, and futile wrangling between defence and prosecution, as to whether information was or was not of any actual or potential assistance, how it was treated or how it should have been treated. Far from that being a normal line of enquiry for judges to make, it should not be one for the courts at all because it is fraught with problems if the courts step out from their role in trying cases to managing the way the police or the Customs & Excise department do their job.

……

85. In my judgment, if the authority concerned forms the view that the information was of no actual or potential assistance, then, unless the papers clearly suggest otherwise, that should normally be the end of the matter.  A defendant is of course always entitled to take the matter up with the Department of Justice but, again, once the view is expressed that the information or assistance was of no actual or potential assistance, then it is not for the courts to embark on an enquiry as to the cogency and validity of that decision.”

21.We also find the following observations by McWalters JA helpful.  They appear later in the same judgment.  Given that the materials put forward by the respondent were Sivan-compliant (see paragraph 12 above), these observations are again mutatis mutandis indicative of how the conflicting positions between the applicant and the respondent in this case can be judiciously resolved :[6]

“ 203. However, a problem arises when the law enforcement agency assesses the assistance as being of no practical value and the defendant disputes this. As we have not heard argument on how such disputes should be resolved it is not appropriate that we now lay down any particular regime for doing so. However, it seems to me that there are two matters which, if applied conscientiously, should significantly reduce the risk of such disputes occurring.

204. The first matter is that the Sivan procedure is employed as a platform for placing before the judge the assessment of the law enforcement agency. It is not clear whether the Sivan procedure has, in the past, always been employed when a dispute arises. It appears that on occasions the prosecutor has simply asserted from the bar table the unfavourable view of the law enforcement agency. In my view, where the defendant persists in seeking a discount for his assistance to the authorities then the Sivan procedure should be employed, even if there is no need for confidentiality. The check and balance provided by the involvement of an independent senior officer is a significant factor which lends credibility to the assessment by the law enforcement agency of the value of the assistance provided by the defendant. Furthermore, if the Sivan documents explain the reasons why the assessment is unfavourable to a defendant then that should also contribute to reducing the risk of a dispute occurring.

205. The second matter that should reduce the risk of disputes occurring is if the prosecutor assumes responsibility for the view taken by the law enforcement agency …...

……

208.   …… the prosecutor, in presenting the Sivan documentation to the court, is not acting in an adversarial capacity but rather in his capacity as a Minister of Justice, seeking to assist the court to reach a just sentence.  In performing this duty, in this capacity, it is only right that the court should be able to assume that the prosecutor has satisfied himself, before he has tendered the Sivan documents, that he can properly invite the court to act on them.”

22.In Kilima Abubakar Abbas, the information offered was the name and passport details of a courier who was expected to arrive in Hong Kong with drugs.  Although this tip-off never materialised, a person travelling on that passport but under a different name was caught trafficking drugs into Guangzhou and the defendant was regarded as having provided useful information.  This is readily distinguishable from the applicant’s offer of the name “C/C1”.  Without more, one simply cannot be sure that this and “ABCD” were the same person.  “ABCD” or, in short, “CD” could well be someone that the applicant had chanced on in prison.

23.Accepting that Godfrey Nzowa was a former head of Tanzania’s Anti-Drug Unit, the only information provided to him by the applicant was the name “X”, and that this man was of a certain nationality.  There was zero indication of what came of this information.  There is no telling whether that information was true.

24.There is no justification to grant the applicant any reduction in sentence on account of her claimed assistance to the authorities, local or overseas.

CONCLUSION

25.There was a substantial delay of two and a half years in bringing the applicant’s application for leave to appeal against her sentence.  We were not satisfied that there was any good reason for this delay.  Lest we might shut out a meritorious application on that ground alone, however, we had considered the applicant’s substantive grounds of appeal but concluded that they were not made out.  We should add that, in substituting the names and locations mentioned by the applicant with letters of the alphabet, we are not suggesting that the relevant information was true: we do so only in response to the applicant’s expressed sensitivity to the same.[7]

DISPOSAL

26.For the above reasons, the applicant’s application for an extension of time to apply for leave to appeal against her sentence was denied, and her appeal dismissed.

Applicant, in-person, present

Mr Gary Leung, SPP(Ag), of Department of Justice, for the Respondent