HKSAR v. Kanfune Bashiri Rajabu

CACC 493/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 493 OF 2012

(ON APPEAL FROM HCCC 366/2011)

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BETWEEN

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J U D G M E N T

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Hon Beeson J (giving the judgment of the court):

1.The applicant pleaded guilty on 7 October 2011 to one charge of trafficking in dangerous drugs. The drug was 1.15 kilogrammes of a mixture containing 0.45 kilogramme of heroin hydrochloride and 0.17 kilogramme of monoacetylmorphine hydrochloride (a salt of an ester of morphine). He was sentenced to 14 years’ imprisonment. He seeks leave to appeal out of time and, if leave is granted, wishes to appeal against sentence.

FACTS

2.The applicant was intercepted by customs officers at the Customs Arrival Hall of the Hong Kong International Airport after his arrival from Dar es Salaam, Tanzania via Doha.  He was searched but no contraband was found in his luggage. Inside his luggage was a bottle of Vaseline lubricant; customs officers suspected the applicant was carrying drugs internally.  The applicant was taken for a body cavity search at Queen Elizabeth Hospital and an x-ray showed foreign objects in his gastro-intestinal tract.  The applicant was arrested and cautioned.  He made no admissions. 

3.Between 5 April 2011 and 13 April 2011, while in hospital, the applicant excreted 92 pellets of suspected dangerous drugs. 

4.In a subsequent Record of Interview the applicant admitted that he came from Tanzania via Doha to Hong Kong.  His friend, Father Pamba, had asked him to deliver the pellets for him, he knew now the pellets were heroin.  He was to be paid US$8,000 for delivering them.  He had swallowed the drugs in a hotel in Dar es Salaam.  He had expected a man to collect him at the Hong Kong airport.  He did not have the contact details of Father Pamba. 

5.Analysis by the Government Chemist confirmed the quantity and type of the drugs as in the particulars of charge; they had an estimated street value of $750,950.  The Government Chemist advised that monoacetylmorphine hydrochloride is a narcotic analgesic with a similar potency to heroin hydrochloride.  Both substances can be termed salts of esters of morphine. 

6.In mitigation defence counsel relied on the applicant’s plea of guilty, the possibility of a further reduction in sentence because of his cooperation with the authorities and the appropriate degree of enhancement of sentence as discussed in HKSAR v Abdallah [2009] 2 HKLRD 437.  Sentencing was adjourned at defence counsel’s request so the court could receive information about the differences, if any, between monoacetylmorphine hydrochloride and heroin hydrochloride.  It was agreed at the resumed hearing that there was no difference in the nature of the substances which would justify a discount. 

7.The court was advised that the applicant had given information such as telephone numbers and names to the Customs and Excise, who later advised the applicant that the information was of no value.  Nevertheless, defence counsel submitted that perhaps in the future some benefit might come from it. 

SENTENCE

8.The judge noted that the guideline sentence in Abdallah for a narcotic quantity of 600 grammes to 1,200 grammes was in the range of 20 to 23 years and was aware of the recommendation that for a quantity of narcotic in excess of 1 kilogramme, in cases where there was an international element, a sentence should be enhanced by not less than 2 years’ imprisonment.  The narcotic quantity here was less than 1 kilogramme.

9.The judge took a starting point at the lowest end of the range and enhanced it by one year to 21 years.  In sentencing the judge stated:

“That is in fact the figure [14] your counsel had put before me he recognises that is the least sentence I can pass (14 years). That was realistic of him I had taken into account your early plea and your attitude to this. I am not going to give you a separate discount for information given but I have taken that into account in passing the least sentence I possibly can.”

After granting the full discount for plea and his “attitude to this”, (by which we assume the judge refers to the cooperation) he sentenced the applicant to 14 years’ imprisonment.

EXTENSION OF TIME

10.The applicant, who had been legally represented since his first appearance in the Magistracy on 15 April 2011, was sentenced on 7 February 2012.  Section 83Q Criminal Procedure Ordinance, Cap 221 requires notice of appeal to be given within 28 days from the date of sentence, but it was only about 9 months later (10 December 2012) that the notice of appeal was filed.

11.The applicant’s explanation for the delay amounted to his saying he was upset by his lengthy sentence; felt isolated and was unable to cope with presenting his appeal.  He had applied for legal aid which was refused on 29 January 2013 and his application to the Hong Kong Bar Association’s pro bono legal assistance scheme was unsuccessful as his proposed grounds of appeal did not impress as substantial or arguable.

12.The application for leave to appeal is therefore significantly out of time, but because of the lengthy sentence and because the applicant is unrepresented we will consider the merits of his application before deciding whether to grant leave to appeal out of time.

GROUNDS OF APPEAL

Personal background

13.The applicant told of his difficult life because he was separated from his family and also the difficulties his family faced without his support.  He was married and was the father of two young children; he was the sole breadwinner of his own family, as well as for his parents.  His father was out of work; his mother was a housewife.  The applicant had never seen his second daughter aged 1 year 2 months, because his wife was 5 months pregnant when he was arrested.  His elder daughter is 5 years old and at school, so needs help with school fees.

14.The applicant sought a further reduction in sentence for helping Customs and Excise by supplying information.  He said he had tried his best to show good cooperation from the time he was arrested. 

15.In particular he asked customs officers to help him by printing phone numbers from his mobile telephone so as to provide two contact numbers for the trafficking organisation.  One number was that of a man in Hong Kong who was supposed to meet him at the airport and send him on to China.  The second was the Mainland China number of the man to whom his journey was directed.  He believed this information may have been of some use.

16.The applicant referred the court to HKSAR v Choi Wing Kuen [2008] HKC 519 and HKSAR v Lee Yat-fan CACC 414/1999 (unreported).  Those are not cases which assist the applicant as they deal with the quantum of discount for major assistance given by convicted defendants against co-conspirators.

17.It is well established that if meaningful assistance is given to the authorities a greater discount on sentence can be given.  The court must consider the nature and quality of such assistance – only if the information is valuable, not vague; goes beyond providing material already known to the authorities; and/or there is a tangible result, will a sentence be discounted.

18.Counsel for the respondent referred to R v Tam Yin-chung CACC 84/1992 (unreported) where the court stated:

“… credit should only be given for genuine cooperation which results in the furnishing of reliable and useful information. Offenders who simply tell the police what they already know or who give information which is merely vague or which relates to alleged offenders who are safely outside the jurisdiction, should not expect to receive a reduction in sentence on that account. Promises to cooperate do not justify any reduction. Where an offender gives valuable cooperation after the final disposal of his own case, it then becomes a matter for the executive to take such action as it considers appropriate by way of remission of sentence.”

He referred also to HKSAR v Bin Kei-chi & Anor CACC 181/2005 (unreported):

“14. We take this opportunity to emphasise once more, in the interests of parity in sentencing policy, that co-operation after arrest, where meaningful assistance provided has led to a tangible result, is rewarded by the courts but either an unfulfilled promise or an attempt to assist which is of no significant practical value at the sentencing stage does not carry with it the prospect of a reduced sentence.”

19.The judge understood the basis on which a further discount could be given and concluded, correctly, that the information imparted by the applicant was of no value and did not justify any extra discount.

CONCLUSION

20.We are satisfied that the sentence imposed was assessed properly by the judge and that it was neither excessive, nor wrong in principle.  Although the applicant believes that the information he gave may have been of some use that was expressly denied by Customs & Excise.  It is unlikely that names and telephone numbers alone could be of use, particularly as criminals have become more aware of ensuring their own security by use of multiple telephones and disposable telephone cards. 

ORDER

21.We have considered the grounds advanced by the applicant in support of his submission that his sentence is too long and that he should be given a greater discount than the usual one third discount for a plea of guilt.  There is no merit in those grounds.  Accordingly we refuse the applicant leave to appeal out of time.

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

The applicant in person