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CACC 93 /2019
[2020] HKCA 974
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 93 OF 2019
(ON APPEAL FROM HCCC NO 195 OF 2018)
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| BETWEEN |
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HKSAR |
Respondent |
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and |
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Herry Jane Yusuph |
Appellant |
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| Before: |
Hon Yeung VP, Macrae VP and Zervos JA in Court |
| Date of Hearing: |
20 May 2020 |
| Date of Judgment: |
26 November 2020 |
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J U D G M E N T
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Hon Macrae VP (giving the Judgment of the Court):
A. Introduction
1. The appellant faced a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“the DDO”), alleging that on 22 November 2017, at Hong Kong International Airport, she unlawfully trafficked in 63.5 grammes of a solid, containing 48.3 grammes of cocaine narcotic.
2. The appellant pleaded guilty to the charge before a magistrate, as a result of which she was committed to the High Court for sentence. On 5 November 2018, she was duly sentenced by Deputy Judge Lugar Mawson (“the judge”) to 5 years and 8 months’ imprisonment; the judge having adopted a starting point of 8 years’ imprisonment for the quantity of cocaine concerned, which he enhanced by 6 months for the international element of bringing the dangerous drugs across the border into Hong Kong, before reducing the resulting 8½ years’ imprisonment by one-third for her early plea of guilty.
3. Pursuant to section 56(1) of the DDO the prosecution also applied to forfeit US$1,800.00 in cash, which was found in the appellant’s possession at the time of the offence. The appellant opposed the application and testified in support of her claim, stating that the money was unrelated to drug trafficking and came from a bank loan taken out for the purpose of her business. The judge did not believe her evidence and ordered the money to be forfeited in full.
4. The appellant sought leave to appeal out of time against both her sentence of imprisonment and the forfeiture order. On 20 August 2019, the Single Judge[1] granted her both an extension of time in which to file a Notice of Application for leave to appeal and leave to appeal against sentence. He further granted the appellant an appeal aid certificate so that she could be legally represented at the appeal.
B. The facts
5. The appellant was, at the time of the offence, a 43-year-old Tanzanian national. On 22 November 2017, she arrived at Hong Kong International Airport on board an Ethiopian Airlines flight from Addis Ababa in Ethiopia, her journey having originated in Dar Es Salaam in Tanzania. Upon her arrival, she was intercepted by Customs officers and taken to a Customs clearance room for examination. An ion-scan test was conducted on her body, which tested positive for the presence of cocaine. As a result, the appellant was taken to North Lantau Hospital, where an X-ray examination identified foreign objects inside her body. She was then transferred to the custodial ward of Queen Elizabeth Hospital, where she subsequently discharged six plastic packets of cocaine, in the quantity particularised in the charge. The estimated value of the dangerous drugs at the time was HK$58,356.50.
C. The application for forfeiture
6. Insofar as the application for forfeiture was concerned, the prosecution relied upon the appellant’s conviction for drug trafficking, the admitted Summary of Facts and her antecedent statement to establish a prima facie case that the US$1,800.00 in cash found on her was liable to be forfeited.
7. A hearing was duly held by the judge to determine the question of forfeiture, in which the appellant gave evidence. She testified that she was a businesswoman in Tanzania, selling articles such as shoes, garments and hair pieces. A business licence was produced, which described the appellant’s business as “Beauty” and detailed her tax identification number. The appellant said that she had funded her business through loans from the bank and, on 16 December 2016 and 16 August 2017 respectively, had applied for two loans of 5 million shillings each (5 million shillings being the equivalent of about US$2,600.00). She claimed that the money from the loans was deposited into her bank account, from which funds she used US$700 to purchase her air ticket to Hong Kong, and US$100 to provide for her children’s food while she was away.
8. Although she began her journey in Dar Es Salaam, the appellant had stopped over in Addis Ababa for what she claimed was a “get together” with others who were coming to Hong Kong for a religious seminar[2]. It was only when she was in Addis Ababa that she was prevailed upon to bring the drugs in question to Hong Kong.
9. The appellant testified that the US$1,800.00 found on her was to be used to buy 10 dress suits in Hong Kong, for which she had already received orders; while the balance of the money would be used in the Mainland for her regular business. Her passport was adduced in evidence, containing a number of visas for the Mainland, which the appellant said had been previously issued to her for travelling directly from Tanzania to China in connection with her business. The appellant maintained that she had not received any reward for bringing the dangerous drugs into Hong Kong.
10. In his ruling on forfeiture, the judge held that much of what the appellant had said in her evidence was untrue and an attempt to confuse and mislead the court. He further found[3]:
“I am satisfied from the cross-examination, it is quite clear from that, that counsel then representing the defendant found herself, as did the legal aid authorities, in the embarrassing situation of having to apply to this court for discharge of the legal aid certificate. It is quite clear that I have been fed a cock and bull story. I am satisfied on the balance of probabilities that the US$1,800.00 is liable to forfeiture under section 56(1)(a) of the Dangerous Drugs Ordinance.”
D. The appellant’s application to adduce fresh evidence on appeal – affidavit of Father Wotherspoon
11. For the purposes of her appeal against sentence, the appellant’s solicitors also filed, on 20 December 2019, an affidavit by Father John Wotherspoon, a prison chaplain, outlining the appellant’s involvement in his anti-drugs ‘campaign’. That involvement, which he described as “substantial”, comprises a 2-page letter written to him by the appellant on 27 December 2017 and subsequently published on an Internet forum, and other assistance, which has been forwarded by Father Wotherspoon to the relevant authorities in the United States.
E. An overview of the grounds of appeal
12. The appellant, who is now represented by Mr Walsh SC, with him Mr Lee, has raised two grounds of appeal: the first concerns the quantum of sentence; the second, the order for forfeiture. Ground 1 avers that the judge erred in his calculation of the starting point by adopting one which exceeded the arithmetically calculated starting point, thus resulting in the sentence being manifestly excessive and/or wrong in principle (see section F infra). Ground 2 alleges that the judge erred in making the order for forfeiture by (i) giving inadequate and insufficient reasons for rejecting the appellant’s account; and/or (ii) making an order which was outside the scope of section 56(1) of the DDO (see section G infra).
F. Ground 1
F.1. The appellant’s submissions on Ground 1
F.1.1. The appellant’s argument generally
13. It seems clear that the genesis of this ground of appeal lay in the terms in which the Single Judge granted leave to appeal, having found that the judge’s starting point exceeded a strict application of the relevant sentencing guidelines to the quantity concerned by some 6 weeks. The Single Judge had held[4]:
“This raises the 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...
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