HKSAR v. Salvador Dias

CACC 44/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 44 OF 2015

(ON APPEAL FROM HCCC NO. 247 OF 2011)

________________________

________________________

________________

J U D G M E N T

________________

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

1.On 25 August 2011, the applicant confirmed before Deputy Judge Stuart-Moore the plea of guilty he had earlier entered in the Magistrate’s Court 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 amount of dangerous drug involved was 0.96 kilogramme of a mixture containing 0.54 kilogramme of heroin hydrochloride and 0.09 kilogramme of monoacetylmorphine hydrochloride. For sentencing purposes, the quantity of heroin narcotic was taken to be 0.63 kilgramme. On the same day, he was sentenced to 14 years’ imprisonment.

2.On 4 February 2015, the applicant filed a notice of appeal against sentence out of time (Form XI); by which time, his application for leave to appeal was more than 3 years and 4 months out of time.  No particular reasons have been given for the delay in filing his notice of appeal against sentence, save that the applicant stated that the sentence was manifestly excessive and he wished to have a lawyer to represent him in the appeal.

The facts

3.At about 9.40 pm on 9 January 2011, the applicant, a national of Guinea‑Bissau, arrived at Hong Kong International Airport on a flight from Bangkok.  He was stopped and searched when he was going through the “green” channel of the Customs Arrival Hall.  No contraband was found in his luggage.  However, since Customs Officers suspected that he had concealed contraband inside his body, he was taken to Queen Elizabeth Hospital for medical examination.

4.At 2.44 am on 10 January 2011, an X‑ray scan revealed foreign objects inside the applicant’s body.  He was duly arrested and cautioned. During his first cautioned interview conducted at 5.35 pm the same day, the applicant declined to answer any questions.  In a second cautioned interview conducted later at 6 pm the same day, the applicant said in English, “I have 67 pellets inside my body.  I don’t know what’s inside”.  Between 10 and 11 January 2011, the applicant discharged a total of 67 pellets from his body.  The pellets were examined by a Government Chemist who confirmed that the pellets contained the dangerous drugs particularised in the indictment.  The retail value of the drugs at the material time was estimated to be HK$697,920.

Mitigation

5.The applicant had a clear record.  He is an only child and both of his parents are retired and living in Nigeria.  The applicant had a common law wife from whom he separated in 2006.  He has a son and daughter of that union, who are currently being looked after by his parents.

6.It was said on his behalf that the applicant was a dealer in vehicle spare parts who had been based for three years in Bangkok, although he had visited Hong Kong about 24 times on business.  He would earn about US$1,000 per month, of which he would contribute US$400 to his family.  The applicant was also a professional singer, who came to be involved in this offence when asked by an acquaintance in Thailand to take the drugs in question to Hong Kong in return for producing free promotional music videos for the applicant.  The applicant’s counsel told the deputy judge that the applicant had given the prosecution the details of that acquaintance and some information about the use of a particular group of African nationals who were going to be used by the instigator of the offence in Bangkok to smuggle dangerous drugs through Hong Kong.

7.The applicant accepted that he had committed the offence out of greed and expressed his concern about the financial consequences of his imprisonment for his family.  It was said that his 10-year-old son had had to withdraw from school since his arrest.  The applicant also submitted that he has suffered on and off from pneumonia since childhood and had experienced certain medical problems and skin conditions since arriving in Hong Kong.

Reasons for sentence

8.The judge treated the relatively small quantity of monoacetylmorphine hydrochloride as having the same narcotic value as heroin hydrochloride and proceeded to sentence the applicant on the basis of a total of 0.63 kilogramme of heroin narcotic.  His doing so accords with the approach since accepted by the Court in HKSAR v Kanfune Bashiri Rajabu (unrep., CACC 493/2012, 8 May 2013).  Applying the sentencing tariff set out in R v Lau Tak Ming & others [1990] 2 HKLR 370, the judge adopted a starting point of 20 years’ imprisonment, which he enhanced by one year for the international element involved in bringing the drugs across the border into Hong Kong, thereby making 21 years’ imprisonment after trial.  He then gave the applicant a full one-third discount for his guilty plea, thus arriving at a resulting sentence of 14 years’ imprisonment.

Grounds of appeal

9.Although his original ground of appeal was that the sentence was manifestly excessive, the applicant has acknowledged in a letter to the Court dated 11 May 2015 that he realises his sentence was not manifestly excessive in accordance with the relevant law in Hong Kong.  However, he repeats his concerns about his family and, in particular, that his children are suffering from not having their father at home.  He has learned that both children have dropped out of school and are facing severe hardship.  In effect, he asks us as a humanitarian exercise to reduce his sentence.  He also raises the question of the disparity of his sentence involving 0.63 kilogramme of heroin narcotic with the sentence handed down in HCCC 333/2013, which involved over 0.70 kilogramme of heroin.  Before us, he has cited two further first instance sentences by way of comparison with his own.

10.The applicant also raised the further issue whether the information which he gave concerning the use of drug couriers operating out of Bangkok from a particular African country, which had not been used in the past, had been useful in changing the authorities’ awareness and policy towards this group of visitors.  In the light of what the applicant told us, we were sufficiently concerned to explore this issue with the Intelligence Unit which had visited him on 13 January 2011, some four days after his arrest.  To that end, we adjourned this matter for further information to be supplied to us and, as a result of that further information, we adjourned the application again until today in order to examine the circumstances of one particular trafficking case also involving an airport arrest, which took place some three months after the applicant’s arrest and which seemed on the face of it to bear certain striking similarities with the applicant’s case and to conform to the information he says he gave the authorities.

The respondent’s submissions

11.It is submitted by Ms Parwani, on behalf of the respondent, that looking at the quantities of dangerous drug involved, the starting point of 20 years’ imprisonment adopted by the deputy judge was entirely appropriate and in accordance with the sentencing guidelines set out in Lau Tak Ming & Others, where for between 400 and 600 grammes of heroin narcotic, a sentence of 15 to 20 years’ imprisonment is suggested.  Furthermore, the one year enhancement of sentence for the international element was proportionally consistent with the sentiments of the Court in HKSAR v Abdallah [2009] 2 HKLRD 437.

12.In respect of the complaint that there is a disparity in sentence between the applicant’s sentence and that passed upon the defendant in HCCC 333/2013, Ms Parwani has submitted that the sentence was exactly the same and no real disparity existed, although the quantity of drugs involved in that case was 0.77 kilogramme of heroin narcotic.  As for the other first instance sentences referred to by the applicant, she says that there is, again, no discernible disparity between the quantities of heroin and sentences in those cases and the present appeal.  In any event, she submitted that if the defendant in other cases had received the same sentence, or even a lighter sentence, in respect of a larger quantity, it would not be any cause for complaint by the applicant, provided his sentence was in accordance with the relevant sentencing guidelines and neither wrong in principle nor manifestly excessive.

13.She further submits that family circumstances or hardship are not relevant considerations for sentencing purposes, particularly where serious offences such as drug trafficking are concerned.  Moreover, save in the rarest of cases, a prisoner’s medical condition is not a matter which the court will take into account in considering the length of the appropriate sentence.  Accordingly, she argues that there are no exceptional humanitarian grounds which would warrant any reduction of the applicant’s otherwise appropriate sentence.

14.In relation to any information given by the applicant, Ms Parwani has helpfully supplied the Court with a table of cases involving arrests, both before and after the applicant’s own arrest, of the particular group of African nationals about which the applicant says he gave information to the authorities.  The result of that analysis is that there is only one case involving an arrest for drug trafficking of a defendant from the country concerned, which took place some three months after the applicant’s arrest.  She has submitted, however, that the applicant’s information, such as it was, had nothing to do with that arrest, nor did it lead to any change in awareness or policy by the authorities towards any particular group of African nationals, and nor can it be said to have led to any other fruitful arrest or line of enquiry.

Consideration

15.As the applicant realistically acknowledges, there is no basis under existing sentencing guidelines upon which this Court could say that the starting point of 20 years’ imprisonment was manifestly excessive for the quantity of dangerous drugs concerned.  Nor in our view can one say that the one year enhancement was improper.  Indeed, in all of the cases to which the applicant has drawn our attention, the defendants received a one year enhancement of sentence for more or less similar quantities of heroin narcotic brought across the border into Hong Kong.  The starting point, enhancement and discount in this case were all in complete accordance with established guidelines and sentencing principles.

16.As for any humanitarian circumstances brought about by the applicant’s domestic circumstances, this Court has said time and again that they will count for little or nothing with offences of such gravity. It was said by the Court in HKSAR v Shum Chung Wai [2002] 2 HKLRD 81, at 87 E-G:

“This Court has said many times that family circumstances should be disregarded, particularly when sentences for serious offences are concerned. As Cons VP said, in R v Mohamed Yaqoob Raj Mohamed Shipra [1988] 2 HKLR 493, at 494:

.…a man must appreciate before he commits a crime, that his family will suffer if he is caught and convicted.

And Silke VP said, in R v Chin Hon Yuen (unrep., Crim App No 393 of 1988):

….family circumstances are matters which a wise man would take into consideration before he commits an offence not after.”

17.Whilst we are, of course, sympathetic on a human level to the plight of the applicant serving a substantial sentence away from his country of origin and his family, this was an extremely serious offence perpetrated on the people of Hong Kong for which the sentence was, as he himself acknowledges, entirely appropriate and within the sentencing guidelines.  The courts cannot be deflected by such considerations from applying the law firmly and consistently.

18.In respect of any information given by the applicant to the authorities, it now seems clear to us, having called for and examined closely the relevant files and information, that the applicant’s information, such as it was, had nothing to do with the arrest of another person three months later, nor has it led to any change of policy towards the nationals of any particular African country, nor has it opened up or led to any new lines of enquiry.  In short, it cannot be said that such information has been of any assistance to the authorities.

Conclusion

19.Accordingly, there are no proper grounds for saying that the sentence passed in this case was manifestly excessive in any way.  Even if there had been any valid basis for granting the applicant leave to appeal against his sentence out of time, which there is not, we would have dismissed his appeal.  Accordingly, leave to appeal against sentence out of time must be refused.

Ms Audrey Parwani SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person