HKSAR v. Omogo Stephen Okuta

CACC 66/2019

[2020] HKCA 457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2019

(ON APPEAL FROM HCCC 323 OF 2015)

------------------------

------------------------

Before:  Hon McWalters JA in Court

Dates of Hearing:  30 August, 6 December 2019 and 4 June 2020

Date of Judgment:  4 June 2020

Date of Reasons for Judgment: 4 June 2020

__________________________

REASONS FOR JUDGMENT

__________________________

1.The applicant pleaded guilty to a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 18 February 2015, at Hong Kong International Airport, the applicant unlawfully trafficked in 1.12 kilogrammes of a solid containing 626 grammes of cocaine. On 8 October 2015, he was sentenced by Deputy High Court Judge Beeson (“the judge”) to 14 years’ imprisonment.

2.On 28 February 2019 the applicant applied for leave to appeal his sentence out of time.  By then he was more than 3 years and 3 months out of time.  At the hearing on 30 August 2019, I requested the respondent to make inquiries into matters raised by the applicant and adjourned the matter to 6 December 2019.

3.On 6 December 2019 the application was further adjourned as more time was needed by the respondent to complete its enquiries. At the resumed hearing of the application on 4 June 2020 I granted it and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The background to the offence

4.The Summary of Facts, which the applicant admitted for the purpose of his sentencing, revealed that on 18 February 2015, the applicant, a 52-year-old Kenyan male, arrived at the Hong Kong International Airport on a flight operated by Ethiopian Airlines from Addis Ababa, Ethiopia.  He was intercepted for customs clearance and X-ray examination of his body confirmed the presence of foreign objects inside his body.  Under caution, he stated that he had swallowed 72 pellets and he would be paid US$3,000 after he expelled them from his body.  He subsequently discharged 71 pellets which contained the cocaine that is the subject of the charge.  The estimated value of this cocaine at the time of its seizure was about HK$1,107,680.

The judge’s Reasons for Sentence

5.Based on the narcotic content of the cocaine, the judge adopted a starting point of 20 years’ imprisonment which she then enhanced by 12 months for the international element.  By reason of his timely guilty plea, a full one-third discount was given to the applicant which resulted in a final sentence of 14 years’ imprisonment.

6.The judge was aware that the applicant had attempted to provide assistance to the authorities in the form of a non-prejudicial statement but this was assessed by the Customs and Excise Department as being of no practical value.

The grounds of appeal

7.The applicant was unrepresented at the leave hearing. In a document attached to his Form XI he explained that he was not complaining about the propriety of the sentence.  Rather, he hoped the Court of Appeal could award him a small discount for his efforts to assist the authorities. He said he had been unsuccessfully campaigning for such a discount since being sentenced.  He also filed with the court an affirmation in support of his application for an extension of time in which to appeal.  However, this document said no more than that, unlike another defendant, he had not been granted any sentencing discount for the information he provided to the authorities.

8.Before the hearing on 30 August 2019 commenced, the court received a letter from Father Wotherspoon with attachments which set out the applicant’s participation in his campaign to deter international drug trafficking activity by African drug mules into Hong Kong, as well as information on the applicant’s recruiters and accomplices that he had referred to in his non-prejudicial statement.  I requested Ms Hermina Ng, for the respondent, to make inquiries into those matters and reminded the applicant that, in addition to setting out his grounds of appeal, he was also required to provide reasons for the delay in applying for leave to appeal. 

9.On 9 September 2019, the applicant filed a letter setting out the reasons for his delay in applying for leave to appeal.  He explained that the delay was due to his lack of knowledge and legal advice, and he had no one to approach about the merits of his appeal.

Discussion

10.The applicant’s application for leave to appeal sentence was more than 3 years and 3 months out of time and he has not advanced what, in my view, is a satisfactory explanation for this delay.  That being so, there was no basis for this court to grant him the extension of time which he needed in order to apply for leave to appeal.

11.Nevertheless, I enquired into his complaint in order to satisfy myself that should I refuse his application I would not be shutting out a substantial and plainly arguable ground of appeal.  

12.The applicant did not complain about the sentence imposed upon him and I was satisfied that there is no basis for him to do so.  His sentence is neither manifestly excessive nor wrong in principle.

13.I turn now to his claim that he has been wrongly denied a sentencing discount for his assistance to the authorities.  I was informed by Ms Hermina Ng, who appeared for the respondent, that the applicant’s pre‑sentence assistance was limited to giving one non-prejudicial statement which he gave to Customs Officers on 29 September 2015.  His sentencing hearing did not take place until 8 October 2015 and so his counsel relied on the applicant’s assistance as part of his mitigation and his non-prejudicial statement was placed before the judge.

14.In this non-prejudicial statement the applicant referred to a person who was heavily involved with drug mules. Unfortunately, it is only now clear that this information was not properly investigated and so neither the applicant’s counsel nor the prosecutor appear to have been in a position to properly evaluate its utility as intelligence to law enforcement.  This prevented the applicant’s counsel from being able to portray the assistance as very helpful.  His counsel informed the judge:

“… And my final point, my Lady, he has endeavoured to assist the authorities.

There is a not very helpful, I would say, a not very helpful non-prejudicial statement that he gave to the Customs to – in his endeavour to assist the authorities and there is no question as part and parcel of this remorse in this case, he want to have a clean break of it all. But the information that he is able to give, if I may say so, is sketchy at best.

…

So you would not be surprise, my Lady, that the authorities cannot make much out of this one. But out of that, I would urge your Ladyship can, in that attempt of his, also give him credit for it.”[1]

15.Not surprisingly, the judge gave no credit to the applicant for his assistance to the authorities, saying of it in her Reasons for Sentence:

“… He has also attempted to give some assistance to the authorities by making a non-prejudicial statement, telling what he knows about the people who recruited him. Sadly, the information of the non-prejudicial statement is too vague to be of any real assistance to the authorities. It probably just confirms what they already know.”[2]

16.This proved to be incorrect in two respects. Firstly, it did not confirm what law enforcement already knew and secondly, it was not so vague as to be incapable of being of practical value to law enforcement.  Consequently, the judge, through no fault of her own, erred in her assessment of the applicant’s assistance to the authorities and in so doing deprived the applicant of a further sentencing discount for this assistance. 

17.As the assistance was rendered by the applicant prior to his sentencing and as the applicant was deprived of a sentencing benefit through an error in the judicial process, I was satisfied that it was reasonably arguable that the applicant had a substantial and plainly arguable ground of appeal and so I granted him leave to appeal notwithstanding that I was not persuaded that he had provided a satisfactory explanation for his delay in appealing.

Disposition

18.For these reasons I granted the application for an extension of time to file a notice of application for leave to appeal against sentence and granted the applicant leave to appeal.  I also granted the applicant an Appeal Aid Certificate so that he would have the benefit of counsel at the hearing of his appeal.  

Ms Hermina Ng ADPP (Ag), of the Department of Justice, for the respondent

The applicant appeared in person

[1] Appeal Bundle, page 12E-H, L-M.

[2] Appeal Bundle, page 6Q-S.