HKSAR v. SIDDIQUE SHAHID

CACC 386/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 386 OF 2012

(ON APPEAL FROM HCCC NO. 333 OF 2011)

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BETWEEN

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Hon Lunn JA (giving the judgment of the court):

1.  The applicant seeks leave to appeal against the sentences of imprisonment imposed on him on 31 August 2012 by Madam Justice Bokhary following his conviction on his pleas of guilty to a count of possession of dangerous drugs, namely 1.94 grammes of ketamine, 0.03 grammes of methamphetamine and 3.41 grammes of methamphetamine hydrochloride (Count 1) and a count of unlawful trafficking in dangerous drugs, namely 455.16 grammes of cocaine, 40.88 grammes of ketamine and 0.61 grammes of methamphetamine (Count 2), contrary to section 8(1)(a) and (2) and section 4(1)(a) and (3) respectively of the Dangerous Drugs Ordinance, Cap 134.

2.  The judge sentenced the applicant to 8 months’ imprisonment on Count 1, and to 11 years and 10 months’ imprisonment on Count 2, which sentences were ordered to be served concurrently.

3.  On arraignment, on 23 August 2012, the applicant pleaded guilty to Count 1.  The applicant and his co-defendant pleaded not guilty to Count 2, with which they were jointly charged.  The trial commenced against them with a voir dire.  On 30 August 2012, the fifth day of the voir dire, having given evidence in the voir dire but before submissions were made, the applicant pleaded guilty to Count 2.  

The facts

Count 1

4.  The applicant accepted that in the late afternoon of 14 February 2011 about 15 minutes after he and his co-defendant had been seen entering Flat B, 7^th Floor, 13 Bailey Street, Hung Hom they were seen leaving the premises.  As he did so, the applicant locked the iron grille with a key.  Then, they were intercepted and arrested by police officers.  The applicant was found to be carrying in his hand the dangerous drugs the subject of Count 1. 

Count 2

5.  Both men were taken back to the flat, and the police conducted a search.  The dangerous drugs the subject of Count 2, together with an electronic scale, a spoon and a quantity of re-sealable bags, were found in a box concealed in the false ceiling near the kitchen.  Four keys which could open the iron grille and the wooden door of the premises were found in a trouser pocket of the applicant.

6.  Under caution the applicant admitted that he had been given the keys by his co-defendant, who rented the premises.  Earlier, he had paid his co-defendant for the dangerous drugs found on him.  They came from the box concealed in the false ceiling.  He admitted that he possessed the dangerous drugs in that box jointly with his co-accused for the purpose of unlawfully trafficking in them.

Reasons for Sentence

7.  In her reasons for sentence, the judge noted that the applicant was a 31-year-old Pakistani, who had been permitted to remain in Hong Kong as a torture claimant.  The applicant had two previous convictions in 2010, one for possession of a dangerous drug and the other for unlawfully trafficking in a dangerous drug, for which he had been sentenced to a total of 12 months’ imprisonment. 

Starting Point

8.  The judge stipulated a starting point for sentence of 12 months’ imprisonment for Count 1 and 17 years’ imprisonment for Count 2.  In determining the latter sentence, the judge said that she adopted the ‘combined’ approach to sentence articulated in the judgment of this Court in HKSAR v Wong Kin Kau.[1]

Discount

9.  For his plea of guilty on arraignment, the judge afforded the applicant the full one-third discount from the starting point taken for sentence for Count 1 and imposed a sentence of 8 months’ imprisonment.  Given his late plea of guilty to Count 2, the judge afforded the applicant a reduced discount of 30% from the starting point taken for sentence and imposed a sentence of 11 years and 10 months’ imprisonment.  She ordered that the sentences imposed be served concurrently with each other. 

Co-defendant

10.  The judge adopted the same starting point of 17 years’ imprisonment in respect of Count 1 for the applicant’s co-defendant.  However, she reduced his sentence to 10 years’ imprisonment.  The judge said that she did so having regard to his guilty plea and his offer to give evidence for the prosecution, albeit that it proved unnecessary to call the co-defendant as a witness, given the applicant’s change of plea to guilty on Count 2 on re-arraignment. 

Grounds of Appeal

11.  In a statement attached to Form XI, by which the applicant gave notice of his application for leave to appeal against sentence, filed with the court on 26 September 2012, the applicant asserted that there was a disparity between his sentence and that of his co-defendant, who was sentenced to only 10 years’ imprisonment for Count 2.

12.  In response to a request made by the applicant, first in a letter to the court dated 13 August 2013, the hearing of the application for leave to appeal against sentence was adjourned, so as to enable the authorities to carry out investigations in respect of information provided by the applicant after he had been sentenced.  That information has not proved to be of any use to the authorities.

A CONSIDERATION OF THE SUBMISSIONS

13.  We are satisfied that the judge was correct to stipulate a starting point for sentence in respect of Count 2 of 17 years’ imprisonment.  No issue of the provision of information to the authorities in respect of misconduct by others arose at the time of sentencing. Accordingly, no issue of an additional discount in sentence arose in that respect at the time of sentencing.  In affording the applicant a discount of 30% for his late plea of guilty to Count 2, tendered only after he had given evidence in a voir dire, but before submissions, the judge was very generous to the applicant.

14.  Given the fact that such information the applicant has provided the authorities has proved to be of no use, the applicant is not entitled to any further discount of sentence in addition to that afforded to him by the judge.[2]

15.  The disparity in the sentences imposed upon the applicant for Count 2, namely 11 years and 10 months’ imprisonment, and that imposed upon his co-accused, namely 10 years’ imprisonment, was explained by the judge at the time of sentencing as reflecting the co-defendant’s “offer to give evidence for the prosecution, which proved unnecessary on the 1^st accused changing his plea to guilty.[3]  Clearly, in those circumstances the judge was entitled to impose the lesser sentence on the applicant’s co-defendant which she imposed.

Conclusion

16.  There are no merits in the application for leave to appeal against sentence, which is dismissed.

[1] HKSAR v Wong Kin Kau (CACC 269/2009; unreported, 4 May 2010).

[2] In HKSAR v Bin Kei Chi & Another (CACC 181/2005; unreported, 23 September 2005) the then Stuart-Moore VP said (paragraph 14):

 “..co-operation after her arrest, where meaningful assistance provided has led to a tangible result, is rewarded by the courts but either an unfulfilled promise or an attempt to assist which is of no significant practical value at the sentencing stage does not carry with it the prospect of a reduced sentence.”

[3] Appeal Bundle, page 9 L-M.