HKSAR v. Manengelo Amry Abdulrahman

CACC 240/2018

[2019] HKCA 633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 240 OF 2018

(ON APPEAL FROM HCCC NO 486 OF 2012)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.This is an application for leave to appeal against sentence out of time, which was filed on 16 August 2018, some 5½ years after the applicant was sentenced.

2.On 26 February 2013, following his plea of guilty to one count of trafficking in a dangerous drug, the applicant was sentenced to 14 years’ imprisonment by Toh J (the judge).

3.The facts outlined to the judge and admitted on behalf of the applicant can be briefly stated as follows.  On 21 June 2012, the applicant, a Tanzanian national, arrived in Hong Kong on a flight from Johannesburg, South Africa via Nairobi, Kenya.  He was searched by Customs officers who found either in bags he was carrying or in his body cavity a total of 64 pellets, which concealed a total of 1098.85 grammes of a solid containing 765.9 grammes of cocaine narcotic.  The estimated market value of the drugs at the time of the seizure was $1,098,850.

4.At the time he was sentenced, the applicant was 27 years of age, and it was submitted on his behalf that he committed the offence because he needed the money to pay for his father’s medical expenses.

5.The judge adopted a starting point of 20 years’ imprisonment which she enhanced by one year for the international element of the offence to 21 years’ imprisonment.  She reduced the starting point by one third for the applicant’s guilty plea, and sentenced him to 14 years’ imprisonment.

6.In his appeal papers, the applicant states that he was unfairly sentenced compared to other cases.  He also states that he misses his family and has had few contacts with them since his imprisonment. He complains that his personal circumstances had not been taken into account by the judge and he asks for a reduction of his sentence.  He also complains about the sentencing regime in Hong Kong being based on the quantity of narcotic involved without regard to the role of the offender.  The complaint about the sentencing regime in relation to drug trafficking was recently addressed by this Court in HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88 which reaffirmed the sentencing guidelines in relation to trafficking of heroin and cocaine and their application to drug couriers and storekeepers.

7.The applicant provides no explanation as to why his application is 5½ years out of time, except to say that he read a newspaper article in March 2018 about the sentencing guidelines for drug trafficking and their application to drug couriers.  Even then, he waited until August 2018 to file his application for leave to appeal out of time.

8.He complains that there are similar cases to his where the sentences imposed were more lenient and that his personal circumstances were not taken into account when he was sentenced.  His complaint about his sentence is without foundation.  First, his personal circumstances and reasons for committing the crime did not provide meaningful mitigation to warrant a reduction to his sentence.  Secondly, we have repeatedly stated that seldom is there much utility in comparing sentences in other cases, because no two cases are alike, and in any event, the task of an appellate court is to ensure that the sentence imposed was properly determined.  The judge applied and was guided by the sentencing authority of HKSAR v Abdallah [2009] 2 HKLRD 437 which sets out the sentencing guidelines for trafficking in over 600 grammes of cocaine and the level of enhancement to a sentence for the aggravating factor of an international element.  The judge adopted a starting point of 20 years’ imprisonment which was slightly lower than an arithmetic calculation of the sentencing guidelines of 20 years and 9 months’ imprisonment.  She enhanced the starting point by one year for the international element which was in line with authority. 

9.We observe that the correct starting point and the enhancement for the international element as well as the lack of any meaningful mitigation were properly acknowledged by defence counsel when mitigating on behalf of the applicant.  A transcript of the sentencing proceedings was provided to the applicant following his application for leave to appeal against his sentence and he was clearly aware of these matters as he referred to them in subsequent letters to the Court. 

10.In light of the lack of any merit whatsoever in the application and the inordinate delay to its filing, we refuse the application for an extension of time to file a notice of application for leave to appeal against sentence and dismiss the appeal.

11.This application was without merit and a serious drain on public resources. We therefore requested the applicant to address us on whether we should order loss of time.  We point out that it has been held that section 83W (1) of the Criminal Procedure Ordinance, Cap 221, applies to applicants for an extension of time for leave to appeal: HKSAR v Wong Lin Hung (2016) 19 HKCFAR 578.

12.When the applicant filed the Form XI on 16 August 2018, he indicated that he was applying for an extension of time, leave to appeal against sentence and legal aid.  A note to the application reminded him of the power of the Court of Appeal under section 83W to order loss of time.  On 27 September 2018, the Director of Legal Aid issued a notice refusing his application for legal aid.  The receipt of the appeal papers, including a transcript of the sentencing proceedings, and notification of the refusal of legal aid, should have warranted a reconsideration by the applicant of his application but it seems he did not do so.  He did however acknowledge in his latest letter to the Court that he was unlikely to succeed in his application. We have come very close to making an order of loss of time in this case but have, with considerable hesitation, decided not to take that course in view of the peculiar circumstances of the applicant’s case which plainly show that he has been seriously affected by the loss of his father while he has been in custody.  This seems to have significantly added to his personal distress and confusion about his predicament. 

13.However, we wish to make it clear that applications for leave which are wholly without merit, particularly when they are made outside the prescribed time limits for appealing, will normally attract orders for loss of time.

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

The applicant appeared in person