HKSAR v. ISLAM SHAFIQUL

CACC 210/2019

[2020] HKCA 354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2019

(ON APPEAL FROM HCCC 322 OF 2018)

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REASONS FOR JUDGMENT

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1.  The applicant (D2) and one Molla Rasidul (D1) were jointly charged with one count of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 at the Court of First Instance before DHCJ Woodcock (“the judge”). The applicant, having pleaded guilty to the charge at the Eastern Magistracy, was committed to the Court of First Instance for sentence on 8 October 2018.

2.  D1 pleaded not guilty to the charge and was convicted after a trial in the High Court in which the applicant testified for the prosecution.  On 19 June 2019, the judge sentenced D1 to 11 years and 9 months’ imprisonment and the applicant to 6 years and 6 months’ imprisonment.  The applicant’s sentence reflected a 45% discount of 11 years 9 months to allow for the applicant’s guilty plea and the assistance he rendered to the prosecution.  

3.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentence.  At the hearing of the application I granted it and said I would hand down my reasons for doing so in due course.  This I now do.

The factual background of the case

4.  In the evening of 10 July 2017, the police laid ambush outside Flat E6 on 5^th floor of Chungking Mansions.  D1 was apprehended by the police as he was coming out of the flat. 

5.  Flat E6 was subdivided into five rooms.  As the applicant was coming out of Room 1, the police intercepted him and gained entry to the room.  On the table inside Room 1 they found the following items:

(a) 55.60 grammes of methamphetamine hydrochloride (“Ice”);

(b) 60.63 grammes of cocaine;

(c) 0.04 gramme of cocaine in 28 pieces of blotter paper;

(d) 0.12 gramme of ketamine;

(e) 0.77 gramme of heroin hydrochloride;

(f) 184.38 grammes of cannabis resin;

(g) 34.28 grammes of herbal cannabis;

(h) 4.85 grammes of chloroethcathinone in 34 tablets;

(i) 3.10 grammes of 3,4-methylenedioxymethamphetamine;

(j) 0.03 gramme of methamphetamine and 0.52 gramme of 3,4‑methylenedioxymethamphetamine;

(k) 3.51 grammes of 3,4-methylenedioxymethamphetamine in 36 tablets;

(l) one electronic scale;

(m) 182 empty resealable plastic bags;

(n) cash of HK$36,170;

(o) one notebook containing suspected drug transaction records; and

(p) two pieces of paper, with handwriting on both sides, containing suspected drug transaction records.    

6.  The estimated value of all the drugs found was HK$126,000.

The mitigation

7.  The applicant was represented by Mr Hanif Mughal of counsel and his mitigation address took place on 19 June 2019.  Mr Mughal informed the judge that the applicant was 32 years of age and was a Form 8 holder from Bangladesh who had arrived in Hong Kong in 2016. He had a conviction for trafficking in cannabis in January 2017 for which he had been sentenced to 3 months’ imprisonment. 

8.  Mr Mughal conceded that the fact of the applicant being a Form 8 holder, and the presence of multiple drugs were aggravating features in this case.  He submitted that for the purpose of calculating a starting point the judge should adopt the combined approach.  This would result in a starting point of about 9 years and 9 months’ imprisonment. 

9.  Mr Mughal also submitted that the only effective mitigating factors for the applicant were his timely guilty plea and his assistance rendered to the prosecution.  The applicant had made two non-prejudicial statements to the prosecution and in fact testified against D1 in the trial, which eventually led to the conviction of D1.  It was submitted that a discount falling in the range of between 40% and 50% would be appropriate.

10.  In the course of the hearing the following exchange took place between the judge and Mr James Sherry, the prosecuting counsel, about the applicant’s assistance:

“COURT: Mr Sherry, any comment on the assistance?

MR SHERRY: Yes, well, I think that it’s fair to say that he certainly did come up to proof and he was a no-nonsense witness. He may have done so at great personal risk, so I think whatever discount you find appropriate he’s certainly earned, thank you.”[1]

The judge’s Reasons for Sentence

11.  The judge directed herself in accordance with the Court of Appeal’s judgment in HKSAR v Chan Yuk Leong[2], HKSAR v Leung Chun Pong[3]and HKSAR v Wong Kin Kau[4], and considered that the combined approach was applicable in cases such as the present where a cocktail of drugs was involved.  The judge made it clear that she would not take into account the quantities of cannabis and chloroethcathinone in sentencing the applicant.

12.  As Ice had the highest potency and attracted the highest starting point amongst other drugs, the judge adopted Ice as the base for her calculation.  Under the guideline in HKSAR v Tam Yi Chun[5], the judge found that 55.63 grammes of Ice would result in a starting point of 10 years and 1 month.  Under the conversion test, if cocaine, ketamine and ecstasy were to be treated as a single batch of 86.16 grammes of Ice, arithmetically, the appropriate starting point would be 11 years and 3 months.  The judge therefore adopted it as the initial starting point, and further enhanced it by 6 months for both the applicant and D1 were Form 8 holders.      

13.  As D1 was convicted after trial, he was sentenced to the full term of 11 years and 9 months’ imprisonment.  As the applicant had pleaded guilty and provided assistance to the prosecution by testifying against D1, the judge had to assess the discount to which he was entitled and concluded that a total discount of 45% was sufficient.  This resulted in a period of imprisonment of 6 years and 6 months’ and this is the sentence she imposed on the applicant. 

Post-sentence events

14.  It subsequently came to the knowledge of the parties that on 11 April 2019 at Shatin Magistracy, the applicant had pleaded guilty to one count of “Remaining in Hong Kong without the authority of the Director of Immigration”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115, for which he had been sentenced to a term of 12 months’ imprisonment.  As this conviction and sentence was not brought to the attention of the judge during the mitigation, the case was brought up before her on 2 July 2019 to re-sentence the applicant have regarding to this existing sentence. 

15.  At this hearing Mr Mughal referred the judge to the Court of Final Appeal’s judgment in HKSAR v Tin’s Label Factory Ltd[6] and invited the judge, to amend her sentence by recourse to the “slip rule”.  Section 68 of the Criminal Procedure Ordinance, Cap 221 appears not to have featured in the submissions or the discussion between bar and bench. 

16.  The judge was aware that she had enhanced the applicant’s sentence for the present charge by 6 months to allow for the aggravating factor of him being a Form 8 holder.  This amounted to a 3-month enhancement after the 45% discount.  The judge was concerned that this enhancement, together with the magistracy sentence, could have the effect of punishing the applicant twice for his Form 8 status.  

17.  In her ruling at the end of the submissions she noted that the unlawful remaining offence should have been heard with the trafficking offence and had this happened the sentence for the unlawful remaining offence would normally have been ordered to be served consecutively to the trafficking offence.  But, noting the risk of double punishment she would only make an order for partial consecutiveness.  She concluded her ruling by saying:

“So where I would normally make the entire term of imprisonment for illegally remaining consecutive to any other charge, here I intend to make it partly concurrent to take into account those 3 months which already reflect an enhancement for your status here in Hong Kong. This avoids double punishment.

So I order that 9 months of your present sentence of 12 months from the Sha Tin case be served consecutively to the 6 years and 6 months imposed for trafficking in dangerous drugs and the balance of 3 months to be served concurrently.”[7]

The applicant’s grounds of appeal

18.  The applicant was unrepresented at the hearing of his leave application.  In his Form XI, he complained that the judge failed to acknowledge his timely guilty plea, as well as his assistance to the prosecution by giving him a 50% discount to his sentence.  He also complained that his lawyer did not inform the judge that he had also provided useful information in the Magistracy concerning another “drug lord” which eventually led to that person’s arrest. 

19.  In a handwritten document entitled “Grounds of Appeal Against Sentence” that was filed on 31 October 2019 the applicant asserted that he deserved a 50% discount, as opposed to merely 45%, as he had testified against D1 which resulted in his co-accused’s conviction by the jury.  He also stated that the substantial information provided by him had successfully led to the discovery of a large quantity of drugs, as well as the subsequent arrest and conviction of an individual other than D1, yet his lawyer failed to disclose it to the judge during his sentencing hearing.  He also attached to this document a 5-page witness statement by him on 19 September 2019 in which he confirmed that he had previously provided information to the police regarding two unrelated drug trafficking cases, that had led to the arrest of two men. 

The respondent’s reply

20.  Ms Kasmine Hui, Senior Public Prosecutor for the respondent, conceded that in view of the Court of Final Appeal judgment in Z v HKSAR[8] and the subsequent authorities, the judge erred in only giving 45% discount to the applicant, as opposed to 50%.  

21.  Nevertheless, Ms Hui submitted that the ultimate sentence passed on the applicant was appropriate.  She submitted that no complaint could have been made in respect of the initial starting point, but that the 6-month enhancement appeared too lenient for the two aggravating features present in this case, namely the applicant being a Form 8 holder and he having trafficked in 8 kinds of dangerous drugs.  Ms Hui submitted that these two aggravating factors could have warranted an enhancement in the region of 18 to 24 months’ imprisonment, which upon 50% discount would be reduced to a sentence in the range of 6 years and 4.5 months, to 6 years and 7.5 months.

22.  The respondent also refuted the applicant’s claim that he provided information which had successfully led to the arrest or prosecution of persons other than D1.

Discussion

23.  I note that there is no complaint about the initial starting point adopted by the judge, nor could there be any.  In view of the varieties of narcotics involved, the combined approach is appropriate. In applying this approach the judge rightly took Ice, with its high potency, as the base for calculation and I see no basis to interfere with her decision.  Given that the judge sentenced the applicant for only the Ice, cocaine, ketamine and ecstasy, without having regard to the remaining narcotics, I do not think that it is reasonably arguable that the initial starting point of 11 years and 3 months was manifestly excessive. 

24.  In respect of the assistance that the respondent provided to the authorities, I accept that the information provided by the applicant to the police did not lead to any arrest, let alone conviction, of any other individual.  Nevertheless, as Ms Hui fairly conceded, the judge erred in not giving the applicant a 50% discount for testifying as a prosecution witness.  His testimony led to D1’s conviction and the assessment by the prosecutor is set out at [10] of this judgment.  However, there may be some force in Ms Hui’s argument that, for these aggravating factors, the enhancement imposed on the applicant was somewhat lenient.  But, this is a matter that can be addressed and determined by the Court of Appeal should it decide to sentence the applicant afresh.

25.  There is also the issue of the post-sentence hearing.  When sentence was first imposed on 19 June no order of consecutiveness was made and the judge’s sentence would have taken effect from that date, which means that, from that date, it was being served concurrently with the existing unlawful remaining sentence.

26.  It is reasonably arguable that by 2 July when the judge purported to exercise her inherent power under the slip rule she was functus officio.  Whether the slip rule can be used to remedy a failure by the parties to inform the judge of an existing sentence, so that the judge could make an order of consecutiveness, is not a matter on which I heard submissions so I shall say no more than that it is reasonably arguable that she could not.

27.  The order the judge finally made assumed that the unlawful remaining sentence was before her and she could make an order in respect of it.  This is quite wrong.  That sentence was not before her as it was simply not a sentence imposed by her but by another judicial officer in separate judicial proceedings.  Unless it came before her on appeal she could not make any order in respect of it.  Assuming she had slip rule jurisdiction, she could, however, make an order in respect of her trafficking sentence and by reliance on section 68 of the Criminal Procedure Ordinance, order that the trafficking sentence not take effect until a future stipulated date.

Disposition

28.  For these reasons I granted the applicant leave to appeal his sentence, on the grounds to which I have referred.  For that purpose, I shall grant the applicant an Appeal Aid Certificate in respect of his appeal, under Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D.