HKSAR v. MAJID MUHAMMAD

CACC 157/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 157 OF 2015

(ON APPEAL FROM DCCC NO. 75 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the reasons for judgment of the court):

1.  With the leave of Macrae JA [1], given on 26 August 2015, the appellant, an asylum seeker, appeals against the sentence of 44 months’ imprisonment imposed on him on 28 April 2015, following his conviction by District Judge Douglas Yau on his plea of guilty to one charge of trafficking in a dangerous drug, namely 23.6 grammes of a solid containing 11.4 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  At the hearing, we dismissed the appeal and said that we would give reasons in due course.  That, we do now.

The facts

2.  At about 12:58 am on 27 November 2014, two police officers intercepted the appellant as he was acting furtively outside the Ground Floor, Ching Wo House, Tsz Ching Estate, Tsz Wan Shan, Kowloon.  A search of his person revealed a transparent re-sealable plastic bag containing the dangerous drugs in the right front pocket of his jeans.  Having been arrested and cautioned for unlawfully trafficking in dangerous drugs, the appellant remained silent.

3.  In a subsequent video-recorded interview conducted after caution, the appellant said that he had met a person in Kowloon Park known as ‘Ali GG’ a week ago, and had been provided with his phone number.  On the evening of 26 November 2014, Ali GG asked him to deliver the dangerous drugs to Tsz Wan Shan for a reward of $200.  Having agreed to do so and having been provided with the dangerous drugs, as instructed the appellant took a taxi to Tsz Wan Shan, where he used his mobile to contact the person to whom he was to deliver the dangerous drugs.  However, then the police intercepted, searched and arrested the appellant. 

4.  The estimated street value of the dangerous drugs was $16,416.  The appellant agreed that he possessed the dangerous drugs for the purpose of unlawful trafficking.

Mitigation

5.  In mitigation, Mr McGowan informed the judge that the appellant was a Pakistani national who was a torture claimant in Hong Kong.  Mr McGowan said that, having abused both cannabis and heroin for several years in Pakistan, on coming to Hong Kong the appellant continued to abuse cannabis and on occasions consumed cocaine.  One of the persons from whom he bought dangerous drugs was Ali GG. 

6.  Then, Mr McGowan said that the appellant had collected the cocaine the subject of the charge on the instructions of Ali GG from a man in Tsim Sha Tsui, after which, on the telephone instructions of Ali GG, he set off in a taxi to Tsz Wan Shan to meet Ali GG.  He believed that, together with others, the two of them would consume some of the cocaine that night.  For his part, he believed that he would consume about three grammes of the solid which contained cocaine.

Reasons for Sentence

7.  In sentencing the appellant, the judge noted that he was a 26‑year-old, unemployed ‘torture claimant’, who had a conviction for trafficking unlawfully in dangerous drugs in August 2014.  Further, he said that the appellant had committed the current offence whilst on police bail. The judge noted that in his video recorded interview the appellant had said that he unlawfully trafficked in the dangerous drugs for a reward of $200, which was to be paid to him by Ali GG at Sham Shui Po MTR station, after he had made delivery of the dangerous drugs at Tsz Wan Shan.

8.  Having averted to the judgments of this Court establishing that the sentencing guidelines for trafficking unlawfully in heroin applied to trafficking unlawfully in cocaine, the judge said that the range of sentence for trafficking unlawfully in cocaine in quantities between 10 and 50 grammes was 5 to 8 years’ imprisonment.[2]

Self-consumption

9.  The judge rejected the assertion that about three grammes of the overall solid mixture of 23.6 grammes was for self-consumption by the appellant:[3]

“I find that given that the defendant was unemployed and was receiving only $200 from the International Social Service; given that the defendant admitted that he was receiving a reward of $200 for the delivery of the cocaine; given that there was no paraphernalia for using the cocaine found on his person; given that self-consumption was only mentioned for the very first time today in court; and given that the defendant had specifically admitted at paragraph 8 of the Amended Summary of Facts that at the material time the drugs found on him were all for the purpose of trafficking, the suggestion that 3g of the solid was for the defendant’s self-consumption is inherently improbable, and I reject the contention.”

Starting point

10.  Then, the judge identified 63 months’ imprisonment as the starting point for the whole of the quantity of cocaine, without taking into account the aggravating factor of the fact that the offence was committed whilst the appellant was on police bail for another offence of unlawfully trafficking in dangerous drugs.

Enhancement

11.  Next, the judge said that, to reflect the aggravating factor that the offence was committed by the appellant whilst on police bail, he increased the sentence by 3 months’ imprisonment.

Discount

12.  Determining that the only mitigating factor was the appellant’s plea of guilty, the judge afforded the appellant a discount of one-third from the resulting total starting point for sentence.

Sentence

13.  In the result, the judge sentenced the appellant to 44 months’ imprisonment.

Consecutive sentences

14.  Then, the judge noted that there was no connection between the current offence and the appellant’s earlier conviction, of 10 April 2015, for unlawfully trafficking in dangerous drugs on 10 August 2014, for which offence he was on bail at the time of his conviction for this offence.  In the result, he determined that they were not part of a “single transaction”.  Next, having stated that he had taken a “step back to consider” the issue, the judge ordered that the sentence of 44 months’ imprisonment be served consecutively to the sentence of 2 months’ imprisonment imposed for the earlier conviction.

Grounds of appeal against sentence

15.  Mr McGowan advanced multiple grounds of appeal, namely that:

(i) the judge erred in adopting a starting point of 63 months’ imprisonment, rather than an arithmetic calculation based on the 11.4 grammes of cocaine, namely 61 months’ imprisonment;

(ii) the judge erred in increasing the said starting point by three months because the offence was committed whilst on police bail, which enhancement was greater than the sentence of 2 months’ imprisonment imposed for the offence for which he was on bail;

(iii) the judge failed to take into account the principle of totality by ordering the sentence to run wholly consecutively to his previous sentence, rather than wholly concurrently to that sentence;

(iv) the judge erred in failing to give a discount for the element of the appellant’s self-consumption of the dangerous drugs in which he was trafficking unlawfully; further, he erred in relying on the absence of paraphernalia for consumption of the cocaine in finding that the dangerous drugs were not for self-consumption by the appellant;

(v) the appellant was denied the opportunity to obtain a discount in sentence, to reflect his assistance to the authorities, because the authorities did not act appropriately on the information provided to them by the appellant; and

(vi) the overall sentence was manifestly excessive and/or wrong in principle.

The respondent’s submissions

16.  Mr David Chan, on behalf of the respondent, submitted that on an arithmetic calculation, based on the weight of the cocaine, the starting point for sentence should have been 61.26 months’ imprisonment.  The starting point of 63 months’ imprisonment taken by the judge was within the appropriate range and his discretion.

17.  Of the judge’s enhancement of sentence by 3 months’ imprisonment to reflect the aggravating factor of the commission of the offence whilst on police bail, Mr Chan submitted that the fact that the bail was granted by the police, rather than that of a court, did not lessen the seriousness of the commission of an offence whilst on bail.  The appellant’s conduct was an aggravating factor in the commission of the offence, evidencing a disregard for the law and persistence in offending.[4] Also, although the judge did not advert to it, the fact the appellant committed the offence whilst he was permitted to remain in Hong Kong as an asylum seeker was an aggravating factor in the commission of the offence[5].  That, by itself justified an enhancement of sentence of 3 months’ imprisonment.  Accordingly, the enhancement of sentence of 3 months lay within the judge’s discretion.

18.  Next, Mr Chan submitted that the judge had considered the principle of totality when ordering the sentence to run wholly consecutive to the appellant’s sentence for the previous offence.

19.  Of the issue of self-consumption of part of the cocaine by the appellant, Mr Chan submitted that the matters to which the judge stated that he had had regard in rejecting the submission were valid and appropriate considerations on which the judge was entitled to reach his conclusion rejecting the contended element of self-consumption.  He invited the Court to note that the evidence did not raise the issue of self‑consumption.  Mr McGowan did not ask the judge to conduct a Newton hearing.  Further, the assertion of self-consumption of some of the dangerous drugs usually could be determined from a consideration of the factors identified by this Court in its judgment in HKSAR v. Wong Suet Hau & Anor, without the need to conduct a Newton hearing.[6]  No claim to an element of self-consumption was made in the Summary of Facts, accepted by the appellant as the basis for his plea of guilty being accepted by the judge.  Similarly, it was to be noted that the appellant did not make that claim in his non-prejudicial statement, dated 9 December 2015, exhibited to the appellant’s affirmation.

20.  The bare claim by a drug abuser that part of the dangerous drugs was for self-consumption did not require acceptance of the claim by a court.  Drug addicts can feed or fund their addiction in numerous ways, one of which is to earn money by unlawfully trafficking in dangerous drugs.[7]

A consideration of the submissions

Starting point for sentence

21.  There is no dispute that in stipulating a starting point for sentence of 63 months’ imprisonment, the judge stipulated a starting point that was greater by about one and three quarter months than the sentence identified by a purely arithmetic calculation.  The judge did not advert to the starting point calculated on an arithmetic basis.  Accordingly, he gave no explanation for stipulating a starting point higher than that calculated on an arithmetic basis.  However, as the judge did note, the appellant’s role in the commission of the offence was that of a courier for reward.

Enhancement of sentence

22.  As Mr Chan has pointed out, the judge enhanced sentence only on the basis that the appellant’s commission of the offence, whilst he was on bail granted by the police, was an aggravating factor.  Also, the judge did not have regard to the fact that the appellant committed the offence whilst he was permitted to be at liberty in Hong Kong as a torture claimant.  Thereby, the appellant abused Hong Kong’s hospitality.  This Court has held that to be a factor in aggravation of the commission of an offence which has a serious detrimental effect on the community and which tarnishes Hong Kong’s reputation for order and security.[8]  Unlawfully trafficking in dangerous drugs is such an offence.[9]

23.  There is no doubt that the commission of an offence whilst the defendant is on bail in respect of another alleged offence is a seriously aggravating factor in the commission of an offence which a judge may reflect in enhancing the starting point for sentence.  That is so whether or not bail is granted by the police or by a court.  It may be that the commission of an offence committed whilst on bail granted by a court is to be viewed more seriously, given that it is a public undertaking to the community through the court.  In the appellant’s case, the offence for which he was placed on bail was of the very same nature as the offence to which he pleaded guilty and for which he is before this Court, namely trafficking unlawfully in dangerous drugs.

24.  Having regard to the twin factors of aggravation in the commission of the offence, we are satisfied that the overall starting point taken for sentence by the judge of 66 months’ imprisonment was fully justified.

Self-consumption

25.  In the judgment of this Court in HKSAR v Wong Suet Hau & Another Stuart-Moore VP enjoined judges to exercise particular care in addressing a claim by the defendant convicted of unlawful trafficking that part of the dangerous drugs were for self-consumption:[10]

“...sentencers will need to examine with particular care any assertion by a proved or self-confessed trafficker that part of his haul was for his own consumption; they will be slow to accept a bare assertion unsupported by confirmatory evidence;”

Stuart-Moore VP went on to say:[11]

“ Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.”

26.  Then, he enumerated factors relevant to the determination of the issue:

“ (3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include:

(a) the quantity of drugs and, if known, their value;

(b) the general circumstances, including how the drugs are wrapped, and how many wraps or packets are found;

(c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place;

(d) the presence of paraphernalia associated with the drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other, items which are used for the consumption of drugs;

(e) whether the defendant is an addict or is otherwise accepted to have been an habitual user of the drug in question;

(f) the explanation given by the defendant following arrest;

(g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and

(h) the defendant’s criminal record, if any, in relation to previous drug offences.”

27.  Finally, Stuart-Moore VP observed “Usually a court will be able to determine the issue from these factors without a Newton hearing.”

28.  It is clear that, although he did not say so in terms, in making his finding, rejecting the contention that the appellant was to consume about three grammes of the solid containing cocaine, the judge had regard to the factors enumerated in the judgment of Stuart-Moore VP.  No doubt, it was in that context that the judge referred to the fact that “...there was no paraphernalia for using the cocaine found on his person”.  That was a factor to which regard was to be had in favour of a defendant making a claim for self-consumption.  It was not available to the appellant.

29.  The judge’s references to the fact that the appellant was unemployed, in receipt of $200 from International Social Services and admittedly acting as a courier for a promised reward of $200 only, in context, clearly was relevant to the claim that he believed he was to be permitted to consume about three grammes of the solid, namely about 1/8th of the solid, the retail value which was about $16,416.  Furthermore, as he did, the judge was entitled to note that the claim of self-consumption was made for the first time in mitigation.  It was contrary to the Summary of Facts, in which the appellant accepted that he possessed the dangerous drugs “for the purpose of trafficking.”

30.  Moreover, it is to be noted that the account advanced in mitigation, namely that the appellant was to go to Tsz Wan Shan to meet Ali GG, was contrary to the description that the appellant had given in his video recorded interview, namely that on Ali GG’s instructions he had travelled with the dangerous drugs to Tsz Wan Shan to meet an “unknown person” who was to receive the dangerous drugs and whom he contacted by telephone on arrival, but who “fled upon seeing the police.”

31.  The judge was entitled to reject the submissions made on behalf of the appellant in respect of the claim of self-consumption and to do so without a Newton hearing.  No doubt, as an experienced counsel, given that he was advancing a claim of self-consumption for the very first time and having regard to the multiple factors which undermined that claim, Mr McGowan would have been acutely aware of the risks of inviting the judge to conduct a Newton hearing, as articulated in the judgment of Stuart‑Moore VP:[12]

“ Where the mitigation has necessitated the holding of a Newton enquiry, after which the mitigation is rejected, the court will be entitled to reduce, by an amount appropriate to the circumstances, the discount normally given following a plea of guilty. (see: R v Lee Chiu Pang [1995] 2HKC 523 at p. 526.)”

Consecutive sentences

32.  In ordering that the sentence of 44 months’ imprisonment imposed on the appellant be served consecutively to the sentence of 2 months’ imprisonment that he was serving, it is clear that the judge was mindful of the fact that the two offences were different acts of unlawful trafficking, not part of a “single transaction”, separated by over three months in time.  Clearly, in stating that in making that order he took “a step back to consider”, the judge was adverting to the issue of totality.  That approach resonated with the judgment of this Court in HKSAR v Leung Ting Fung & Another [13], in which McWalters JA explained that earlier judgments of this Court were not to be taken as identifying a principle that “...sentences for offences committed while on bail must be ordered to be served wholly consecutively to an existing sentence without regard to the totality principle.” [14]

33.  As the judge noted, the appellant’s conviction, for which he had been sentenced to 2 months’ imprisonment, was for an offence of unlawful trafficking in cannabis on 10 August 2014.  In that case, the appellant had been seen at an exit to the Tsim Sha Tsui MTR station to hand over what transpired to be 3.48 grammes of cannabis in herbal form, for which he was paid $400.  Obviously, although both offences involved unlawful trafficking in dangerous drugs, the offences were quite different not only as to the dangerous drug itself but also as to the circumstances of the commission of the offence.

34.  It being clear that the judge had considered the appropriate totality of sentence to reflect the commission of the two offences, we are satisfied that he was entitled to order the sentence of 44 months’ imprisonment to be served consecutively to the sentence of 2 months’ imprisonment.

Assistance to the authorities

35.  For the reasons that we have set out in a separate judgment, we are satisfied that the appellant is not entitled to any discount of sentence for his assistance to the authorities.

Conclusion

36.  There being no merit in the grounds, we refused the application for leave to appeal in respect of grounds (iv) and (v).  In result, for the reasons that we have given, we dismissed the appellant’s appeal against sentence.