HKSAR v. HERRY JANE YUSUPH

CACC 93/2019 [2019] HKCA 956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL CRIMINAL APPEAL NO 93 OF 2019 (ON APPEAL FROM HCCC 195 OF 2018) ------------------------

BETWEEN

HKSAR Respondent and

HERRY JANE YUSUPH Applicant ------------------------ Before: Hon McWalters JA in Court Date of Hearing: 20 August 2019 Date of Judgment: 20 August 2019 Date of Reasons for Judgment: 26 August 2019 ______

REASONS FOR JUDGMENT ______ The applicant faced 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 charge alleged that on 22 November 2017, at Hong Kong International Airport, the applicant unlawfully trafficked in 63.5 grammes of a solid containing 48.3 grammes of cocaine. On 5 ‍November 2018, following her plea of guilty to this charge in the Magistrates’ Court and her Committal for Sentence to the Court of First Instance, the applicant appeared before DHCJ Lugar-Mawson (“the judge”) and was sentenced to 5 ‍years and 8 ‍months’ imprisonment. On 22 ‍March 2019 the applicant applied out of time for leave to appeal both her sentence and the forfeiture order that was made in respect of US$1,800 that was found on her at the time of her arrest. At the hearing of the application I allowed it and said I would hand down my reasons for doing so at a later date. These are my reasons. Background to the offence On 22 ‍November 2017, the applicant, a 43-year-old Tanzanian female, arrived at the Hong Kong International Airport on a connecting flight operated by Ethiopian Airlines from Addis Ababa, Ethiopia, her journey having originated in Dar es Salaam, Tanzania. She was intercepted at ‍the ‍Customs Arrival Hall, an ion-scan test was conducted on her and she tested positive for the

presence of cocaine. X-ray examination confirmed foreign objects inside her body and she subsequently discharged the six packets of dangerous drugs which are the subject of the charge. At the time of her interception, she was in possession of US$1,800 and one mobile phone with SIM card. The estimated value of the cocaine was about HK$58,356.50. The judge’s Reasons for Sentence In passing sentence, the judge adopted a starting point of 8 ‍years’ imprisonment based on the narcotic content and enhanced it by 6 ‍months for the “international element”. He then discounted this amount by one-third to allow for her plea of guilty and by this route arrived at the sentence that he imposed on her. The judge’s Ruling on Forfeiture Proceedings The prosecution applied, pursuant to section ‍56(1) of the Dangerous Drugs Ordinance, to forfeit the US$1,800 found on the applicant. She opposed this application and testified in support of her claim. The judge found that the applicant was lying in her contention that the money was unrelated to drug trafficking and came from a bank loan taken out earlier by her for trading and ordered that the money be forfeited. The grounds of appeal The applicant was unrepresented in the leave hearing. In her Notice of Application for Leave to Appeal (Form XI) filed on 22 March 2019, she explained her lateness in lodging the appeal was because she was sick at that

time and was shocked by the lengthy sentence she received. As to her grounds of appeal, she complained that in ‍similar cases the sentences imposed were more lenient. She also said she wanted to retrieve the forfeited money to her as it was unrelated to drug trafficking. In an undated letter filed on 16 ‍April 2019, the applicant repeated her complaint of disparity in sentence. She also asked the court to reduce her sentence by reason of her ill health. In another letter filed on 17 ‍June 2019, the applicant set out in ‍details how she had been tricked into smuggling cocaine into Hong Kong and asked this court to take this into account in considering the propriety of her sentence. Discussion The applicant was sentenced on 5 ‍November 2018 and the forfeiture order was made on 30 ‍November 2018, yet she only filed her Form ‍XI on 22 ‍March 2019 which is nearly 2½ months out of time. I have considered the explanation the applicant put forward for ‍the delay. Given the relatively short period of time sought by the applicant I am, in the circumstances of this case, minded to grant her the extension of time she needs. To succeed on appeal the applicant must demonstrate that the trial judge has erred in some way and this has resulted in an excessive sentence. In this case, the judge has erred in the calculation of his starting point. The starting point of 8 years adopted by him was

based upon the guideline stipulated in R v Lau Tak Ming & Another but it exceeded by six weeks an arithmetically calculated starting point. On a strict arithmetic calculation, the starting point should be 94.47 months or 7.8725 years, ie about 7 years and 10.5 months. This raises question of the effect of recent Court of Appeal authority in drug sentencing cases. In my view it is reasonably arguable that: (i) the initial starting point is reached by a discretionless arithmetic calculation within the relevant sentencing band; (ii) once this arithmetic starting point is calculated the sentencing discretion comes into operation; (iii) the sentencing discretion operates firstly to enhance the starting point by reference to any aggravating factor. This then becomes the court’s final starting point before allowing for any mitigation; and (iv) this final starting point is then discounted for the mitigating factors which usually will be: (a) a plea of guilty (maximum of one-third); (b) assistance to the authorities (which can be up to a full one-third discount on its own and which in conjunction with a plea of guilty can take the normal one-third discount up to a maximum of two-thirds); and (c) any other mitigation. It is unclear where this mitigation may come into play. Does it operate, where there is a plea of guilty, at step (iii) as a measure to lower the final starting point or

does it operate as a separate and new step (v) at the end of the sentencing process. Such form of mitigation may be a compassionate allowance by the courts in response to the defendant’s personal circumstances or a discount, as is claimed by this applicant, within the three months maximum that the Court of Appeal has allowed for participation in Father Wotherspoon’s campaign. If this is the way the law has developed then it would seem appropriate for the prosecutor and the defence counsel to agree on the arithmetic calculation and to place that before the sentencing court. The sentencing court can then turn to the prosecutor and ask if they are relying on any aggravating factor to enhance that starting point before turning to defence counsel to hear what is being advanced in mitigation. In respect of the forfeiture order, by granting the applicant leave to appeal, the Court of Appeal will have an opportunity to determine whether the right to appeal against sentence can be used as mechanism for appealing a forfeiture order. I have already expressed my reservations that it can be so used in HKSAR v Valencia, notwithstanding past Court of Appeal practice to the contrary. Disposition For these reasons, I allowed the application for an extension of time to file a Notice of Application for Leave to Appeal against sentence. In order that the applicant can properly argue her appeal and

so that the Court of Appeal receives all the assistance on these issues that it should, I grant the applicant an Appeal Aid Certificate. Given the legal importance of the issues to which I have referred consideration could be given to whether a three judge panel of the Court of Appeal should be convened to determine them. (Ian McWalters) Justice of Appeal Mr Simon Kwong SPP, of the Department of Justice, for the respondent The applicant appeared in person