HKSAR v. Ssemakula Musa

CACC 352/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 352 OF 2014

(ON APPEAL FROM HCCC NO. 298 OF 2012)

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JUDGMENT
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Hon Lunn VP (giving the Judgment of the Court) :

1.On 31 August 2012 the applicant pleaded guilty at the Eastern Magistrates’ Court to one charge of trafficking unlawfully in a dangerous drug on 6 February 2012, namely 639.15 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Having been committed to the High Court for sentence, on 19 October 2012, the applicant was sentenced by Deputy High Court Judge Wright to 14 years’ imprisonment.

2.On 14 October 2014 the applicant filed a Notice of application for leave to appeal against his sentence out of time.

Facts

3.The applicant, a Ugandan, arrived at Hong Kong International Airport from Malaysia on 6 February 2012.  At around 6 p.m. that evening, he was intercepted by a Customs Officer at Transfer Area 2 at Passenger Terminal 1 of the airport, as he waited for a ferry to Shekou in the Mainland.  Having been taken to a hospital, an X-ray examination revealed the presence of foreign objects inside his body.  Then, having been arrested and cautioned, he admitted in a video recorded interview that he had swallowed some pellets in a hotel in Kuala Lumpur before flying to Hong Kong.  He intended delivering them to the Mainland, for a monetary reward.  Over the course of the next 4 days, he discharged a total of 68 pellets which contained 639.15 grammes of heroin hydrochloride, with an estimated retail value of almost $1 million. Immigration records showed that prior to his arrest on 6 February 2012, he had been in Hong Kong nine times since July 2011.  

Reasons for sentence

4.In sentencing the applicant, the judge referred to the judgment of this Court in HKSAR v Abdallah [1] and adopted a starting point of 20 years’ imprisonment, having noted that the range of imprisonment for unlawfully trafficking in amounts of 600 to 1,200 grammes of heroin was stipulated to be 20 to 23 years’ imprisonment.  The judge said that he enhanced the sentence by one year to reflect the aggravating circumstances of the commission of the offence, namely importation of the dangerous drugs into Hong Kong.  Having stated that he afforded the applicant a one-third discount from that stipulated as the starting point for sentence, to reflect the applicant’s plea of guilty, the applicant was sentenced to 14 years’ imprisonment.

Leave to appeal against sentence out of time

5.In an affirmation filed with the Court on 14 October 2014, the applicant sought the leave of the Court for an extension of time to give notice of his appeal against sentence.  However, he provided no explanation for the delay of 23 months in giving notice of an application for leave to appeal against sentence.  Rather, he addressed personal and family circumstances.  First, whilst he was in prison he has developed two medical conditions, namely haemorrhoids and an eye problem.  Secondly, some of his close family members have passed away, or in for medical condition or are in financial difficulties.  Although he was offered an opportunity today to give an explanation for the delay in making his application, and none was offered.

6.In his proposed grounds of appeal against sentence, contained in two statements attached to the Notice of application for leave to appeal against sentence out of time filed on 14 October 2014, the applicant said:

(i) the dangerous drugs he carried were not destined for Hong Kong;

(ii) he had provided the Hong Kong authorities with some information prior to his sentence;

(iii) he committed the offence because of poverty and his wife’s ill-health;

(iv) he had haemorrhoids and was suffering from an eye condition; and

(v) he was very remorseful.

7.In a note entitled “To whom it may concern” dated 16 December 2014, the applicant referred to the passing away of his only uncle, whom the applicant and his family considered their father.  The applicant said he was the breadwinner of the family and, due to his imprisonment in Hong Kong, the children who relied on him might drop out from school and food might become scarce for them.  Also, the applicant said his wife had been critically injured and his only son was killed in a motor vehicle accident, which occurred on 12 December 2014.  He asked the Court to consider letters written by members of his family and a letter dated 15 December 2014 from Rev Colgan, Chaplain to the Stanley Prison.  By a letter dated 3 February 2015, the applicant provided the Court with the certified copy of his son’s Death Certificate.  In several subsequent, but undated, letters the applicant confirmed that the children had dropped out from school and he provided the Court with a medical report on his wife, dated 6 April 2015.  He asked for the Court’s forgiveness and sought a reduction of his sentence.  Today, he asked for leniency and mercy.

A consideration of the submissions

7.  The applicant has advanced no reasons whatsoever in explanation of the fact that his application for leave to appeal against sentence was made some 23 months after the expiry of the time during which it was required to be made.

8.Nevertheless, as is our practice, we have had regard to the merits of the proposed grounds of appeal.  There are none.  As the judge noted, whilst the applicant’s personal circumstances and family background were “deserving of understanding” it is well established, given the seriousness of the offence, they are of no weight in mitigation.  That holds good in this Court.  An application by way of a plea in misericordiam lies to the Chief Executive. No doubt, such medical difficulties as the applicant may have will be addressed by the Correctional Services Department.

Conclusion

9.Accordingly, the application for the leave to appeal out of time is refused.

Ms Vivien Chan, SPP of the Department of Justice, for the respondent

The applicant appeared in person