HKSAR v. FUNDI FURAHA GILES

cacc 82/2017 [2019] HKCA 154 in the high court of the hong kong special administrative region court of appeal criminal appeal no 82 of 2017 (on appeal from HCCC NO 17 of 2016)

BETWEEN

HKSAR Respondent and Fundi Furaha Giles Applicant Before: Hon Macrae VP and Zervos JA in Court Date of Hearing: 30 January 2019 Date of Judgment: 30 January 2019 Date of Reasons for Judgment: 1 February 2019

REASONS FOR JUDGMENT Hon Macrae VP (giving the Reasons for Judgment of the Court): On 18 August 2016, the original trial date in July 2017 having been brought forward at the defence request, the applicant was convicted before Deputy Judge Lugar-Mawson (“the judge”) in the High Court on her own plea to a single charge of trafficking in a dangerous drug, namely 1,129 grammes of a mixture, containing 700 grammes of heroin hydrochloride and 124 grammes of 6monoacetylmorphone hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap ‍134. On 19 August 2016, the applicant was sentenced by the judge to 14 years and 8 months’ imprisonment. Having sought leave to appeal to this Court against her sentence out of time, we refused to grant leave and said that we would give reasons for our decision in due course. These are our reasons. The last day for the applicant to lodge her Form XI Notice of application for leave was 16 September 2016. It was in fact filed on 30 ‍March 2017. In neither her affirmation filed together with her Form ‍XI, nor in her oral remarks made to us at the hearing of the appeal, has the applicant given any good reason as to why this application should have been made more than 6 months out of time. The facts The applicant is a Tanzanian female. On 12 May 2015, she arrived in Hong Kong on a flight from Nairobi, Kenya via Addis Ababa,

Ethiopia. She was stopped for customs clearance at the ‘green channel’ of the Arrival Hall at Hong Kong International Airport. No illicit items were found upon an examination of the applicant’s baggage, or a search of her person. Nevertheless, since she was suspected of concealing drugs, the applicant was escorted to North Lantau Hospital, where foreign objects were detected inside her body. The applicant was later arrested and, under caution, stated that she had “fibroid” but did not say anything about dangerous drugs. She was then taken to Queen Elizabeth Hospital where she eventually discharged 90 packets of dangerous drugs. These 90 packets were found to consist of the drugs particularised in the charge. Their estimated retail value at the time was HK$816,267. Mitigation and personal circumstances of the applicant At the time of the offence, the applicant was 40 years of age. She was a mother with an adult son who was over 20 years of age and a daughter aged 7. She was divorced from, and had lost contact with, the fathers of her children. Apart from bringing up her children, the applicant had also had to look after her elderly mother. The applicant supported her children and mother by running her own business in Dar ‍es ‍Salaam as a beautician, whilst also working in interior design and the organisation of weddings. She had made occasional trips to Hong Kong to buy beauty

and other items for herself and others. Through her counsel, the applicant explained that she committed the offence because her mother needed an eye operation costing US$10,000, which she could not afford. She had been approached by someone who suggested to her to bring drugs to Hong Kong. Sadly, she yielded to temptation. Accordingly, she travelled to Nairobi, where she was met by a woman, who arranged for her to swallow the drugs. The applicant was to be contacted by mobile telephone upon her arrival in Hong Kong, when she would be told what to do next. The applicant said that she had learnt a bitter lesson. She had pleaded guilty early and was truly remorseful. Such remorse was evidenced in the course of bible studies she had undertaken in custody, and by her participation in Father Wotherspoon’s ‘campaign’ to discourage other wouldbe traffickers from doing as she did. In the latter regard, the applicant had written what were described by her counsel as “a couple of letters”, which had attracted “a great deal of correspondence and comments” when posted on an online blog in East Africa. Furthermore, Father Wotherspoon had himself written a letter describing the applicant as a most active supporter of his ‘campaign’, whose contribution was larger than many others and more effective. Reasons for sentence The judge held that nothing in the applicant’s personal circumstances or

in the circumstances of her commission of the offence (including the necessity of raising money for her mother’s operation) could amount to mitigation. As for the applicant’s participation in Father Wotherspoon’s ‘campaign’, the judge held that any reduction in sentence for this reason should be a matter for the Executive; and, referring to HKSAR v Akinyi Grace Silvia, he concluded that in this respect he did not have the discretion contended for by counsel. In respect of the quantities of drugs, the judge stated: “In your case, the total weight of the compound you bought into Hong Kong was 1,129 grammes, well over a kilogramme, and the active weight of drugs in that compound was 824 grammes. It matters not that 124 grammes of that weight was a chemical derivative which is known as 6-monoacetylmorphone hydrochloride, and that the remaining 900 grammes was heroin hydrochloride. The courts of Hong Kong have long recognised that the potency of both chemical compounds is the same.” (italics added) Applying the guidelines of this Court in HKSAR v Abdallah, the judge adopted a starting point of 21 years’ imprisonment in respect of 824 grammes of heroin narcotic, which he enhanced to 22 years for the international element of importing the dangerous drugs from East Africa into Hong Kong. Applying a full onethird discount in respect of the applicant’s plea, she was accordingly sentenced

to 14 years and 8 months’ imprisonment. Grounds of appeal against sentence In the applicant’s submission attached to her affirmation, which was filed together with her Form XI Notice of application for leave, the applicant pointed to the apparent confusion relating to the amount of drugs in which she trafficked, citing the judge’s italicised reference, at paragraph 14 above, to 900 grammes of heroin hydrochloride. She also requested that consideration be given for her involvement in the Father Wotherspoon’s campaign. Respondent’s submissions Despite there being no valid explanation for the applicant’s delay in applying for leave to appeal, Mr Franco Kuan, on behalf of the respondent, did not object to the extension of time for leave to appeal against sentence. He submitted that the judge’s reference to 900 grammes was clearly a slip of tongue, because the judge had correctly stated the total weight of the narcotic content of the dangerous drugs to be 824 grammes before he made the error. The judge’s arithmetic also indicated that he had used the correct weight of narcotic when calculating the starting point in accordance with the relevant guidelines. As for the applicant’s participation in Father Wotherspoon’s campaign, Mr Kuan submitted that the judge was fully aware of her contribution to the campaign, and that the judge’s view that it was a matter best left for the executive

could not be criticized and should not be interfered with. He referred to HKSAR v Kilima Abubakar Abbas, per Lunn VP, at paragraph 66: “…assessing the value, if any, to Hong Kong of an applicant’s participation in Father Wotherspoon’s programme is a matter that the Executive is better equipped to perform.” Mr Kuan emphasised that any discount for participation in Father Wotherspoon’s campaign, if one was considered appropriate at all, should be a “token” one and was in the absolute discretion of the court, an exercise with which the Court of Appeal should not interfere lightly: see Kilima, per Macrae VP, at paragraphs ‍91 and 92. Despite the judge’s slip of the tongue in relation to the quantity of heroin hydrochloride, he submitted that the sentence ultimately passed was wholly in line with the relevant guidelines. Consideration It is clear, following Kilima, that a sentencing court does have a discretion to award a “small additional” discount (per Lunn VP, at paragraph 67), or a “token” discount (per Macrae VP, at paragraphs 91 and 92), for making a significant contribution to Father Wotherspoon’s campaign. The discount afforded for this factor in the exercise of a judge’s discretion should be no more than 3 months. However, we wish to emphasise here that the Court did not mean an automatic 3 months’ discount whenever this factor is raised in mitigation: that must be the

limit of the discount depending on the extent and circumstances of the defendant’s contribution as determined by the judge, and this Court will not lightly interfere with the exercise of the judge’s discretion in this regard. That means that there will be cases when a judge considers, in the due exercise of his discretion, that no additional discount is appropriate for this factor. In the present case, all that the judge was told by counsel was that the applicant had written “a couple of letters”, which had been posted on an East African internet blog, which in turn were said to have attracted considerable correspondence and comment; although at the hearing before us, the applicant spoke of other letters being written since sentence, making in total about 5 or 6 letters. With respect, we doubt the judge, had he realised that he had a discretion to consider an additional discount in this matter, would have considered anything more than a very token discount at most for this factor in this case. Be that as it may, the fact remains that, while the starting point for sentence in respect of 824 grammes of narcotic would have merited 21 ‍years’ imprisonment (21 years and 1 ‍month to be more exact) under the guidelines in Abdallah, the enhancement for the international factor of bringing the drugs across the border into Hong Kong ought to have been more than 18 months’ imprisonment,

in accordance with the judgment in HKSAR v Chung Ping Kun: yet, the judge enhanced the sentence for this factor by only 12 months’ imprisonment, thus taking the notional sentence after trial to 22 years’ imprisonment. The extent by which the enhancement for the international factor was reduced, therefore, far exceeds any discount that the judge might have granted, had he realised that he did have a discretion to accord a token discount for the applicant’s participation in Father Wotherspoon’s ‘campaign’. It was for these reasons that the application for leave to appeal out of time was refused and the appeal dismissed. We wish, however, to add this. Although Mr Kuan took no issue with the fact that the application for leave was made more than 6 months out of time, perhaps for practical reasons given the general merits of the appeal, we should make clear that we view these time limits as imposing important obligations on applicants to process their applications for leave to appeal to this Court in a prompt and expeditious manner. We must emphasise that, where this Court is being asked to tinker with a sentence by a matter of months, we will be much less disposed to consider granting leave out of time in respect of such applications in the absence of cogent and compelling reasons for the delay. (Andrew Macrae) Vice President (Kevin Zervos) Justice of Appeal Mr Franco Kuan SPP, of the Department of Justice, for the Respondent The Applicant appeared in person