HKSAR v. Cherif Mohamed

CACC 95/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 95 OF 2015

(ON APPEAL FROM HCCC 74/2011)

____________

____________

____________

JUDGMENT

____________

Hon D Pang J (giving the judgment of the court):

1.On 5 May 2011, having pleaded guilty to one count of trafficking in 0.79 kilogramme of cocaine[1], the applicant was sentenced by Wright J to 14 years and 8 months’ imprisonment. On 16 March 2015, the applicant gave notice to apply for leave to appeal against sentence out of time. Having been refused legal aid on the merits (16 April 2015), the applicant continued to prosecute this application in person, and the matter is now before us for determination.

THE FACTS

2.The applicant was the holder of a Guinean passport.  On 19 July 2010, by Flight QR816 from Lagos, Nigeria via Doha, Qatar, he arrived at Hong Kong International Airport and was stopped for customs clearance whilst coming through the Nothing-to-Declare Channel.  No contraband was found on him or in his baggage, but the applicant was taken to Queen Mary Hospital where an x-ray examination revealed the presence of foreign objects inside his body.  These were discharged and later confirmed to be a total of 0.79 kilogramme of cocaine narcotic contained in 82 pellets.  The retail value of these drugs was HKD$1.27 million.  In an interview under caution, the applicant admitted that he swallowed the pellets in Lagos; that he had received a reward of USD$4,000 for smuggling the pellets into Hong Kong; and that a friend in Africa had asked him to do so.

BACKGROUND & MITIGATION

3.From what can be gleaned from the transcripts, the applicant was said to be married, hitherto in the business of trading motorcars and auto parts and to have a child born to him in his home country whilst awaiting trial in Hong Kong.  He was the sole supporter of his immediate family, his aged parents and his three siblings, one of whom had just had a stroke and was lying unconscious in bed.

THE SENTENCE

4.Having summarised the facts of the case, the judge said this in sentencing the applicant:

“Your counsel tells me, helpfully, that he has explained the decision of the Court of Appeal in Abbas to you. That decision indicates that for trafficking in a quantity of cocaine - or, in that instance, heroin but heroin equates to cocaine - between 600 and 1,200 grammes, a period of imprisonment of between 20 and 23 years is appropriate before any aggravating features are taken into account. That case also, quite clearly, indicates that the importation of drugs into Hong Kong is to be regarded as an aggravating feature.

The quantity of drugs you had is towards the lower end of that band and I would regard 20 years 6 months as the appropriate starting point after trial, with an enhancement of 1 year 6 months for the international factor, giving a total sentence, before mitigation, of 22 years of imprisonment.

You pleaded guilty and you did so at the earliest opportunity. Current sentencing practice says that that entitles you to a full one-third discount on the sentence. Counsel has told me about your personal circumstances and those of your family. There is nothing in that which I have been told that justifies any further reduction in sentence.

Consequently, the sentence you are to serve is one of 14 years and 8 months’ imprisonment.” 

THIS APPLICATION

5.By an affirmation attached to his Form XI, the applicant explained that what prompted this application after such a long delay (some years and 10 months) were his wife’s relatively recent diagnosis of breast cancer and its ensuing consequences. 

6.The situation was further particularized in a sheet attached to the same form as follows:     

(a) The applicant’s wife was to undergo surgery, and it was her wish that the applicant be by her side.  (Attached as proof were i) a photograph of the wife and ii) a letter dated 20 January 2015, purporting to be from the Alimosho General Hospital in Lagos, and adverting to no specific date for the proposed operation.)

(b) In her illness, the applicant’s wife was no longer in a position to care for their young daughter.  In their old age, the applicant’s parents could be of no help either.

(c) With him serving a long prison sentence, the applicant’s whole family had been financially devastated.

7.In the same sheet, the applicant pleaded that:

(a) He had no previous record of conviction either here or in his home country. (Attached as proof were i) a certificate purporting to be from the Nigerian police and ii) an affidavit purporting to have been sworn by the applicant’s sister.)

(b) He had already served half of his sentence with good behaviour.

(c) Upon early release, he would be well placed to educate young people about the consequences of being involved in the illicit drug trade.

8.By an undated letter which this court received on 8 June 2015, the applicant revisited the above grounds, added the extra complaint that the enhancement for the international element in his case was “too high” and concluded by asking this court to “temper justice with mercy”.

9.Before us, the applicant repeats what he has said in his previous submissions and has no meaningful addition.

CONSIDERATION

10.The applicant is correct not to challenge the starting point for sentence.  For 0.79 kilogramme of cocaine, a starting point of 20½ years’ imprisonment is unassailable.

11.Contrary to his contention, the 1½-year enhancement for the international element of the case was well within the range available to the judge.  See the decisions of this court in HKSAR v Abdallah Anwah Abbas [2009] 2 HKLRD 437 (an enhancement of at least 2 years is appropriate for trafficking more than 1 kilogramme of heroin or cocaine across borders); HKSAR v Dewi Kartika Sari Binti Musli CACC 101/2012 (29 November 2012, unreported) (for a case involving less than 1 kilogramme of the same drugs, the level of enhancement is at the judge’s discretion); and HKSAR v Chung Ping Kun CACC 85/2015 (2 July 2014, unreported) (introducing a three-tier guideline under which a 1 to 2-year enhancement is appropriate for drugs falling within the 500 to 1,000 grammes band)[2].

12.A case that the applicant sought to rely on, misguidedly, was HKSAR v Loua Cece CACC 328/2014 (21 May 2015, unreported).  Its facts are relevant only to the extent that it involved 634.22 grammes of heroin.  By remarking that “the enhancement ... for the international element should also have been in the region of 1 year imprisonment” (see paragraph 11 of the judgment), the court was not, in that case, departing from the norm of its previous decisions.  Furthermore, it does not show the enhancement in the present case (by an extra 6 months for 156 grammes more of cocaine) to be excessive.

13.Even if we were to accept the distressing circumstances of the applicant’s wife and family, it is clear that the courts have always taken the view that “a man must appreciate before he commits a crime that his family will suffer if he is caught and convicted”: per Cons VP in R v Shipra [1985] 2 HKLRD 493 at 494. It is also well established that family circumstances play virtually no part in the mitigation of drug offences.  The dreadful nature of the illicit drug trade and the evil that the suppliers of dangerous drugs inflict on others compel this policy position.  In any event, we are unable to see how a reduction in sentence, on a purely humanitarian basis, would be of any assistance to the applicant unless it anticipates his immediate release which, having regard to the seriousness of the present offence, is inconceivable.

DISPOSAL

14.This application is badly out of time and has no merit.  Accordingly, we dismiss it.

Miss Cheuk Lung Sang, Janice, PP of the Department of Justice, for the respondent

The applicant appeared in person

[1] This is by weight of pure narcotic content.

[2] Although both the Dewi case and the Chung case post-date the applicant’s offence, they do no more than state the obvious for quantities less than 1 kilogramme.