HKSAR v. ALI SAIF

CACC 309/2017

[2018] HKCA 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 309 OF 2017

(ON APPEAL FROM HCCC NO 133 OF 2017)

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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):

1.  Following his plea of guilty before a magistrate on 8 June 2017 to a charge of trafficking in 199 grammes of a solid containing 121 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, the applicant was committed to the High Court for sentence.

2.  On 7 September 2017, he was sentenced by Wong J (the judge) in respect of the charge to 7 years and 2 months’ imprisonment.  Having noted that there was a 2 weeks’ suspended sentence subsisting in respect of another matter in the magistrate’s court[1], the judge activated the suspended sentence in full and ordered it to run wholly consecutively to the sentence for the trafficking offence; hence, the applicant was sentenced to an overall term of 7 years 2 months and 2 weeks’ (or 86½ months’) imprisonment.

3.  On 29 September 2017, the applicant filed a Notice of application for leave to appeal against his sentence (Form XI).

The facts

4.  At 01:13 hours on 13 July 2016, a police officer saw the applicant walking along Hanoi Road in Tsim Sha Tsui, Kowloon holding a black plastic bag in his right hand.  When the officer approached the applicant, he immediately put the black plastic bag into a planter nearby.  The officer intercepted the applicant and retrieved the black plastic bag from the planter.  Upon an examination of the black plastic bag, a paper box containing a transparent re‑sealable plastic bag of suspected dangerous drugs was found.

5.  The applicant was arrested but remained silent under caution.  At the time of his arrest, the applicant was found to be in possession of HK$88, RMB$12 and a mobile telephone.  In a subsequent video recorded interview, the applicant said he was very drunk and did not know why he was arrested.  He did not know about the items seized by the police officer and he did not have any income.  He further stated that he would occasionally take cannabis with friends, but did not use any other drugs.

6.  The seized suspected dangerous drugs were sent to the Government Chemist and, in due course, confirmed to be 199 grammes of a solid containing 121 grammes of cocaine narcotic, with an estimated street value of HK$225,467.

7.  On pleading guilty and admitting the Summary of Facts, the applicant accepted that he had trafficked in the dangerous drugs particularised in the charge.

Mitigation

8.  The applicant was 30 years of age at the time of his sentence and had one previous conviction for breaching his condition of stay in Hong Kong.  He was a Pakistani national, single, with little or no education.  It was submitted on his behalf that, despite his lack of formal education, the applicant was engaged in trading mobile telephones in his home country.  However, the business did not provide enough to sustain his living. As a result, he had had to borrow money and was unable to repay his loan.  His life was threatened, as a result of which he left Pakistan to seek asylum. Consequently, he was granted a Form 8 recognizance by the Director of Immigration, while his non-refoulement claim was being considered.  His non-refoulement claim was still pending at the time of sentence.

9.  A few days before the confirmation of his plea and sentence before the judge, the applicant had filed a handwritten letter with the court, which appeared to suggest that his original plea before the magistrate had been equivocal.  Defence counsel, however, urged the court to disregard the letter and submitted that the applicant had since confirmed his guilty plea and admitted the Summary of Facts.  Counsel emphasised that the applicant had, therefore, pleaded guilty at the earliest opportunity and he further asserted, without any elaboration, that the applicant had unsuccessfully attempted to render assistance to the authorities.

Reasons for sentence

10.  The judge, in adopting an appropriate starting point, referred to the sentencing guidelines in R v Lau Tak Ming & Another[2], and noted that for trafficking in between 50 and 200 grammes of heroin, a starting point of 8 to 12 years’ imprisonment would be appropriate.  Since, in accordance with the decision in Attorney General v Pedro Nel Rojas[3], the sentencing guidelines in Lau Tak Ming were also made applicable to the trafficking of cocaine, the judge adopted a starting point for sentence of 9 years and 9 months’ imprisonment.  He then enhanced the starting point by 12 months’ imprisonment, given that the applicant had committed a serious drugs offence affecting the people and reputation of Hong Kong, whilst being permitted to remain at liberty in the community by virtue of a Form 8 recognizance.

11.  The judge granted the applicant a full one‑third discount for pleading guilty, notwithstanding some evidence of prevarication about his plea.  However, given that the applicant had committed the present offence during the operational period of a suspended sentence for a previous offence which was of a wholly different nature, the judge activated the suspended sentence of 2 weeks’ imprisonment in full, which was ordered to run consecutively to the present offence.  Accordingly, the applicant was sentenced to an overall term of 7 years 2 months and 2 weeks’ (or 86½ months’) imprisonment.

Grounds of appeal

12.  In his Form XI, the applicant did not provide any substantive grounds of appeal but simply stated that he felt the sentence was manifestly excessive.  In a letter to this Court filed on 22 February 2018, the applicant asked for a reduction of sentence, so that he might return to Pakistan to look after of his mother.  Before us this morning, he has emphasised that he is very remorseful for the offence.

The respondent’s reply

13.  Although the contents of the applicant’s letter to the court of 22 February 2018 appeared to suggest that the plea might be equivocal, Ms Claudia Ng, on behalf of the respondent, submits that the applicant’s subsequent confirmation of his plea of guilty was unequivocal, at a time when he was legally represented, and that his plea was tendered voluntarily as a result of a deliberate and informed decision.  There is no suggestion persisted with before this Court that the plea might have been equivocal.

14.  As to sentence, Ms Ng argues that the judge’s adoption of a starting point of 9 years and 9 months’ imprisonment was in accordance with relevant guidelines.  The further enhancement of 1 year in view of the applicant’s status as a Form 8 recognizance holder was also entirely appropriate, in accordance with authority and cannot not be criticised.  The activation of the suspended sentence was also fully justified, the judge having expressly stated that he bore totality in mind.

Consideration

15.  There can be no issue taken with the starting point for sentence, when viewed arithmetically in accordance with the relevant sentencing guidelines.  Nor can there be any complaint about the fact of the enhancement of the starting point, in accordance with established principle, given the fact that the applicant, as a Form 8 recognizance holder, committed a very serious offence, which not only affected the community as a whole but severely tarnished the reputation of this city for order and security.  The only issue for us in this appeal is whether the enhancement of 1 year for this aggravating factor was manifestly excessive and/or wrong in principle.

16.  The judge specifically referred to the decision of this Court in HKSAR v Shah Syed Arif[4], where in respect of the trafficking in 55.88 grammes of cocaine narcotic, the Court approved an enhancement of 1 year’s imprisonment for an applicant in the same position as the one before us.  Although the quantity of cocaine narcotic in this case was more than twice the quantity in Shad Syed Arif, the judge viewed the totality of the sentence he was about to pass, which would have included the activation in full of the outstanding suspended sentence, and decided in his discretion to enhance the starting point by 1 year for the applicant’s status.  The applicant can have no complaint whatsoever about this enhancement.

17.  When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges[5].  However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court.  If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants.  Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.

18.  We would point out that in HKSAR v Mahabul Alam Khan[6], this Court considered that the starting point for sentence, where the applicant, a Form 8 recognizance holder, had trafficked in 238.57 grammes of cocaine narcotic, should have been enhanced by 15 months’ imprisonment.  That authority was specifically referred to, and applied, by the judge at first instance in HKSAR v Musah Hakeem Tahiru[7], where, in respect of another Form 8 recognizance holder, who had trafficked in 256.73 grammes of cocaine narcotic, together with 18.76 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and a small quantity of herbal cannabis, the starting point for sentence was enhanced by 16 months’ imprisonment.

19.  In HKSAR v Dramane Mouhamed Saiti[8], a decision which was handed down by another division of this Court this morning, the Court commented that the applicant, again a Form 8 recognizance holder, who had trafficked in 440 grammes of cocaine narcotic, could have had his starting point for sentence enhanced by as much as 18 months’ imprisonment.

20.  In our judgment, there can be no complaint as to the enhancement of sentence on the applicant as a Form 8 recognizance holder, given the quantity of cocaine narcotic concerned; nor can there be any valid complaint about the overall sentence passed in this case.

21.  The application for leave to appeal against sentence is accordingly refused and the appeal dismissed.