Case Document

100%Judiciary

CACC 410/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 410 OF 2014

(ON APPEAL FROM HCCC NO 464 OF 2013)

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BETWEEN
	HKSAR	Respondent
	And
	MAUMBA Hassani Rashidi	Applicant

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Before: Hon Macrae JA and M Poon J in Court

Date of Hearing: 21 May 2015

Date of Judgment: 21 May 2015

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J U D G M E N T

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Hon M Poon J (giving the Judgment of the Court):

1.The applicant pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The drugs involved were 0.73 kilogramme of a mixture containing 0.48 kilogramme of heroin hydrochloride. On 17 January 2014, he was sentenced by E Toh J to 12 years’ imprisonment.

2.On 27 November 2014, the applicant filed a notice of his intention to seek leave to appeal against sentence out of time.

The facts

3.At around 7:40 pm on 25 May 2013, the applicant, a 31 years old native of Tanzania, arrived at Hong Kong International Airport on a flight from Tanzania via Ethiopia. He was refused permission to land and intercepted by Customs and Excise officers for customs clearance. The applicant was subsequently sent to Queen Elizabeth Hospital where he discharged 51 packets which were later confirmed to contain 0.73 kg of a mixture containing 0.48 kg of heroin hydrochloride. The estimated retail value of the subject drug was HK$585,460.00.

The judge approach in sentencing

4.In sentencing, the judge considered the applicant’s background and the mitigation advanced on his behalf.[1] Applying the sentencing guidelines set out in HKSAR v Lau Tak Ming and others [1990] 2 HKLR 370, the judge adopted a starting point of 16 years’ imprisonment. She then enhanced that starting point by 2 years to reflect the international component of his trafficking. The judge then gave the applicant a full one‑third discount for his plea of guilty and sentenced him to 12 years’ imprisonment.

Application for leave to appeal out of time and the grounds of appeal against sentence

5.By the date of 27 November 2014 when the applicant filed a notice of appeal against sentence out of time, he was more than 9 months out of time. The reasons he advanced for not filing his notice of appeal timeously were contained in an affirmation sworn by him on 12 March 2015, namely, that:

(1) He was advised by his legal representative at the conclusion of the trial that there were no grounds of appeal against sentence; and

(2) From July to November 2014, he got to know of 4 inmates who had been convicted of trafficking in dangerous drugs of similar nature and quantity. All of their sentences were only enhanced by 6 months due to the international element. He only realised by then that the 2 year enhancement of his sentence was manifestly excessive.

6.The respondent, in opposing the application for extension of time, referred us to the case of HKSAR v Ma Cheuk Shing, (unrep., CACC 507/2012), where there was an almost 9 month delay in filing a notice of appeal against sentence. The Court of Appeal reiterated that the burden on the applicant to persuade the court that an extension of time was justified becomes more onerous the longer the delay, albeit that leave would not be refused if the court were of the view that a substantial and plainly arguable ground of appeal was thereby being shut out.

7.The sole ground advanced by Mr Ross on behalf of the applicant is that the 2 year enhancement for 0.48 kg of heroin because of the international element was manifestly excessive. In support of this submission, he relied on the judgment of this court in HKSAR v Chung Ping Kun (unrep., CACC 85/2014[2]), and submitted that the guidelines set out therein are an appropriate guide as to how the applicant should have been sentenced, namely, that the enhancement should have been 1 year instead of 2 years.

The submission of the respondent

8.In his written submissions for the respondent, Mr David Chan, ADPP referred us to HKSAR v Ma Cheuk Shing, (unrep., CACC 507/2012) supra, and submitted that an extension of time should not be granted in the present case because none of the reasons advanced for the delay would justify an extension of time. He further submitted that as Chung Ping Kun was delivered 6 months after the present sentence was imposed (on 17 January 2014), the guidelines set out therein have no retrospective effect and are not applicable in the present case. Whilst conceding that a comparison of the circumstances of the present case with other similar cases would support the argument that the enhancement of two years was excessive, the respondent submitted that on a strictly mathematical approach, the starting point should have been 17 years’ imprisonment: see HKSAR v Otieno Lorna AChieng, (unrep., CACC 232/2013). In which case, even if the 2 year enhancement was excessive, in the final result the sentence of 18 years before discount is entirely appropriate.

Discussion

9.In HKSAR v An unknown person alias Stojanovic Milka and Skopljak Sara, (unrep., CACC 110/2010), a differently constituted division of this court held that:

“13. . . . The process normally to be followed is a three stage process: first to take a starting point for the quantity, then to add to that such additional term as is warranted by aggravating features, if any, and then to reduce the sentence from that starting point on account of mitigation factors, such as a plea of guilty. . . . ”

In Chung Ping Kun, Cheung JA said:[3]

“As a broad guideline for drugs of this kind below 1,000 grammes we will suggest a level of enhancement as follows:

1) Up to 250 grammes 6 months

2) Between 250 and 500 grammes 6 months to 1 year

3) Between 500 and 1,000 grammes 1 year to 2 years”

10.Although the judgment of Chung Ping Kun was deliveredafter the date of commission of the instant case, in both that case and HKSAR v Zhou Sailin, (unrep.,CACC 72/2014), it was said by the court that had the trial judge had available the guidance of this court in Chung Ping Kun, it had no doubt that the trial judge would have adopted an enhancement in line with the guidelines set out therein.[4]

11.Having reviewed a number of cases decided before and after Chung Ping Kun, we agree that the 2 year enhancement in respect of an amount of 0.48 kg of heroin hydrochloride in the present case is excessive. An enhancement of one year would have met the justice of the case. However, that cannot be considered in isolation since an appellate court must look at the overall or resulting sentence to see whether it is manifestly excessive and or wrong in principle. The 16 years adopted by the judge before enhancement was not in line with the established guidelines and should have been in the region of 17 years, which when enhanced by 1 year and discounted by a full one‑third, would yield a proper sentence of 12 years. The applicant has failed to discharge the onerous burden upon him which would justify an extension of time. We are satisfied that there is no merit in the ground of appeal and by dismissing the application for extension of time we would not be shutting out a substantial and plainly arguable ground.

12.The application for leave to appeal against sentence out of time is dismissed.