HKSAR v. Mohamed Twaha Seif

CACC 381 /2018

[2019] HKCA 866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMININAL APPEAL NO 381 OF 2018

(ON APPEAL FROM HCCC NO 329 OF 2017)

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J U D G M E N T

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1.On 4 September 2017, the applicant pleaded guilty to a charge of trafficking in a dangerous drug, namely 1.44 kilogrammes of a solid containing 1.23 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”) in the Eastern Magistracy. On 22 January 2018, he confirmed his plea before Remedios J (“the judge”) in the Court of First Instance. On the same day, the judge made an order in terms of the prosecution’s application for disposal of exhibits, which included the forfeiture of US$1,205 in cash. With the agreement of both parties that the hearing be adjourned, the applicant was not sentenced by the judge until some 9 months later on 12 October 2018, when he was given a sentence of 16½ years’ imprisonment for the trafficking offence.

2.On 28 December 2018, the applicant filed a Form XI Notice applying for leave to appeal against the forfeiture order only, but not the term of imprisonment.  Such application was made some 1½ months out of time.

The facts admitted by the applicant

3.On 22 January 2017, the applicant, a Tanzanian National, arrived in Hong Kong from South Africa, via Dubai.  He was intercepted by Customs Officers at the arrival hall of Hong Kong International Airport.  He had in fact entered Hong Kong on seven previous occasions since 2013.

4.Nothing irregular was found in his personal belongings, amongst which were found a mobile telephone, two Tanzanian passports (of which one was valid, the other expired), US$1,905 in cash, and some other currencies of a less significant amount.  Nevertheless, since he was suspected of having internally concealed illegal substances in his body, he was escorted to the North Lantau Hospital for medical examination.  When an X-ray scan was conducted on the applicant, foreign objects were detected inside his body.  The applicant was thereupon arrested and cautioned, following which he admitted that the foreign objects inside his body were dangerous drugs, and that he had swallowed 90 packets.  He said that since he was poor, he had been attracted by the reward of US$5,000 for carrying the objects.

5.The applicant was subsequently transferred to Queen Elizabeth Hospital, where between 23 and 25 January 2017 he discharged from his body a total of 90 packets of suspected dangerous drugs, which were later confirmed to be 1.44 kilogrammes of a solid containing 1.23 kilogrammes of cocaine, with a total retail value of HK $1.3 million.

6.In pleading guilty to the offence, the applicant accepted that he was unlawfully trafficking in the cocaine particularised.

Forfeiture of US$1,205

7.The prosecution made an application for forfeiture pursuant to section 56(1) of the Ordinance.  Although the applicant had originally been found in possession of US$1,905, prosecuting counsel nevertheless informed the judge at the hearing on 22 January 2018 that the parties had reached an agreement in respect of the forfeiture of the money.  He said[1]:

“Some will be forfeited. Some will be returned. US$700 will be returned to the defendant whilst the remaining 1,200‑something will be forfeited, and that’s by consent.”

When the judge asked defence counsel to confirm the proposed arrangement, he responded[2]:

“I agree with it, my Lady.”

8.A list of disposal of exhibits[3] was duly submitted to the judge.  It will be seen from that list that Exhibit P12 (US$1,905) was divided into Exhibit P12 (US$700) and Exhibit P12A (US$1,205), the former being ordered “to be returned to defendant”, the latter being ordered “to be forfeited”.  Since the forfeiture order was made by consent, the judge duly made the order in terms on the same day.

Mitigation and sentence

9.Since no issue is taken by the applicant with the term of imprisonment imposed, I shall briefly refer to the sentencing proceedings.  The applicant was single and 37 years of age at the time of his sentence.  It was submitted on his behalf during mitigation that his mobile telephone business had run into financial difficulties, as a result of which he committed the present offence[4]. 

10.The judge adopted a starting point of 23 years’ imprisonment.  Noting that the cocaine had been brought across the border into Hong Kong from a foreign country, the judge enhanced the starting point by 2 years’ imprisonment.  She accorded the applicant a one-third discount for his plea of guilty, resulting in a sentence of 16 years and 8 months’ imprisonment.

11.The judge then considered the applicant’s contribution to what was termed the “campaign” of Father John Wotherspoon, for which he had written two letters to be published on a website in order to discourage other foreign would-be traffickers from coming to Hong Kong.  For this contribution, the judge gave the applicant a further discount of 2 months’ imprisonment, thus reducing the ultimate sentence to 16 years and 6 months’ (or 16½ years’) imprisonment.

Application made out of time

12.In his affirmation attached to his Form XI application, the applicant says that he did not apply for leave to appeal against the forfeiture order earlier because he was not aware of its terms until 14 December 2018, when US$700 was returned to him in prison; nor had he been informed by his former legal representatives that only US$700 of the US$1,905 would be returned to him.  In respect of this application being out of time, Ms Lisa Go for the respondent, takes no issue.

Grounds of appeal

13.In his Form XI Notice, the applicant states that he told his legal representatives that all of the US$1,905 was his own money, which had nothing to do with drug trafficking.  He claims that he was surprised to learn that the prosecution would only return US$700 to him.  However, he needed the remaining US$1,205 to support his family.

14.By a letter dated 18 June 2019 but received by the Court on 26 June 2019, the applicant sought to adduce new evidence to show that the US dollars were not related to the proceeds of his trafficking activities.  He maintained that he would need a period of 4 months to contact a person who might be able to get hold of new evidence and asked for an extension of time to file his written submissions after the lapse of the 4-month period.

15.By a further letter dated 8 July 2019 but received by the Court on 12 July 2019, the applicant said that he was looking for his business registration document, taxpayer number and business licence with a view to showing that he had been running a genuine business.

16.The applicant was subsequently granted a slightly extended deadline to file written submissions by 19 July 2019.  However, nothing further has been received from him.

Respondent’s submissions

17.Ms Go submits that there can be no complaint against the forfeiture order, which was made by the judge with the consent of both parties.  She points out that the applicant, on his own admission, was supposed to be in financial difficulties when he decided to traffic in dangerous drugs from South Africa to Hong Kong.  Yet, he was in possession of a significant amount of US dollars at the time, which was obviously designed to assist him in entering Hong Kong by appearing to be a legitimate businessman.  She asserts that there is sufficient evidence to show that the money was connected with the offence committed by the applicant[5].

Consideration

18.The applicant now complains that the forfeiture order was made without his knowledge, as well as contrary to the instructions he gave to his legal representatives.  However, I note that the proceedings before the judge were at all times conducted in the presence of a Swahili interpreter.  On the face of the transcript, there is nothing to show that there was any issue of inaudibility or misunderstanding on the part of the applicant.  The applicant has accepted before me that he had been provided with a Swahili interpreter but says that the main focus of his attention at the hearing was on the sentence of imprisonment.  In any event, he did not at any stage voice his concern about the order that was made on 22 January 2018.  Nor did he make any complaint about the matter between 22 January 2018 and 12 October 2018 (some 9 months later) when he was actually sentenced.  Indeed, it was not until 27 December 2018 that he said anything about the forfeiture order which had been made in open court and in his presence on 22 January 2018.

19.The applicant is ordinarily bound by the conduct of his counsel, who in this case was well-experienced in the conduct of criminal trials.  It is very unlikely that counsel would have agreed such an unusual order with prosecuting counsel without discussing the matter with his client and seeking his approval. Certainly, the record of proceedings does not assist the applicant’s claim, given that the terms of the forfeiture order were clearly and openly discussed between counsel and the judge in his presence and hearing on 22 January 2018. Furthermore, the agreement reached on the applicant’s behalf was extremely generous, given that the prosecution could have applied in the circumstances to forfeit all of the money.

20.The application for leave to appeal is refused.  I advise the applicant that he has the right to renew his application for leave to appeal to the Court of Appeal.  However, I should also give him this warning if he does so.  An applicant who chooses to appeal against only part of the sentence passed upon him is treated, by virtue of section 81I(2) of the Criminal Procedure Ordinance, Cap 221 as appealing all of the sentence to which he is subject.  An order for forfeiture is part of that sentence: see HKSAR v Nkwo Nnaemeka Darlington[6], at paragraphs 31-32.  Accordingly, if the applicant renews his application for leave in respect of the forfeiture element of his sentence only, the Court is obliged to consider the rest of the sentence as well, which includes the sentence of imprisonment.

21.In those circumstances, I should therefore warn him that, whilst he has the right to renew his application for leave to appeal in respect of the sentence, or any part thereof, to the Court of Appeal, one of the consequences of so doing is that the Court may make an order for loss of any time which the applicant has already spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.  That risk is increased if the Court considers that allegations made against trial counsel or solicitors are unfounded.

Ms Lisa Go PP, of the Department of Justice, for the Respondent

The Applicant appeared in person