HKSAR v. KHALIQ SALMAN (aka KHALIA SALMAN)

CACC 131/2023 [2024] HKCA 132

On appeal from [2023] HKCFI 1764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 131 OF 2023

(ON APPEAL FROM HCCC NO 188 OF 2021)

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J U D G M E N T

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1.  On 28 April 2023, the applicant pleaded guilty to one count of conspiracy to rob, contrary to s. 10(1)  and (2)  of the Theft Ordinance (Cap 210)  and ss. 159A and 159C of the Crimes Ordinance (Cap 200)  before D’Almada Remedios J (the Judge). On 14 June 2023, the Judge sentenced him to 8 years’ imprisonment.

2.  On 7 July 2023, the applicant filed an application for leave to appeal his sentence.

3.  The applicant has been refused legal aid on 21 August 2023 and assistance from the Hong Kong Bar Association Bar Free Legal Service on 25 October 2023.  He appears in person at the hearing of his leave application.

The summary of facts

4.  On the morning of 10 January 2020, police officers on patrol observed a grey car stationary at Tin Wu Road, outside Sherwood Court, Kingswood Villas, Tin Shui Wai.  The police intercepted and checked the grey car.  They established that there were four men in the car who were the applicant, Hameed Mohammad Adil (referred to as Person 1 in the summary of facts), Duraim Ali (referred to as Person 3)  and Ahmad Ali (referred to as Person 4).  They found a face mask and two mobile telephones on the applicant; a face scarf and one mobile telephone on Person 1; a face scarf, a face mask and one mobile telephone on Person 3; and three mobile telephones on Person 4.  They also found inside the car two machetes (one inside a sheath and the other inside a badminton racket bag), an empty backpack, five pairs of gloves, a pack of plastic strips, two rolls of duct tape, two face scarfs and an unopened face mask.  The police later confirmed that the car’s front and rear licence plates were false.

5.  The police retrieved from Person 1’s mobile telephone a photograph of Ms Guan Yan Fen (Ms Guan), who was the proprietress of a money exchange shop in Kingswood Richly Plaza at Tin Wu Road, Tin Shui Wai, which was about 300 metres away from where the car was intercepted.

6.  In the summary of facts was the following summary of the applicant’s statements in his two video recorded interviews conducted under caution:

“(1)  In the morning of the day in question, Person 4 called him and offered him a job;

(2)  He then sent a whatsapp message to Person 4 informing him of the address of the hotel which he resided at;

(3)  At about 6a.m. of the day in question, Person 1 and Person 4 arrived at the hotel and met up with him;

(4)  He asked Person 1 and Person 4 about the job, and Person 1 told him that there would be a female carrying a large amount of money;

(5)  Person·1 showed the photo of Guan to him on a mobile phone and said Guan was the robbery target who was working in the money exchange shop;

(6)  Person 1 told him that they were going to rob Guan when the money exchange shop opened. He agreed to participate in the robbery;

(7)  The three of them thereafter left the hotel and got in the grey vehicle in which Person 3 was already inside; Person 4 then drove;

(8)  Person 4 then drove them to Nam Cheong;

(9)  When they arrived near Nam Cheong MTR station, a Pakistani male whom he had seen on a few previous occasions (‘WP’)  got inside the vehicle with a badminton racket bag containing machetes;

(10)  Afterwards they left Nam Cheong and drove to Tin Shui Wai;

(11)  Person 1 said Person 3 and WP would carry the machetes and would look for Guan in the money exchange shop. Person 1 told him to bring a bag in order to carry the money;

(12)  When they arrived at a bus stop in Tin Shui Wai, Person 1 and WP got off the vehicle and said they would come back;

(13)  He later saw Person 1 coming back to the vehicle alone. He then saw Person 1 taking a set of car plates from the vehicle and then placing those plates at the front and rear of the vehicle;

(14)  Person 1 then told the parties that they would go to the money exchange shop in Tin Shi Wai. As Person 3 had gotten off the vehicle and was concealing the machetes in his body, the Defendant suggested to Person 3 to put them inside the vehicle;

(15)  The parties thereafter switched positions inside the vehicle;

(16)  Later they were intercepted and arrested by the police;

(17)  Person 3 knew the address of the money exchange shop but he didn’t;

(18)  Person 4 was responsible for recruiting him to commit the robbery, Person 1 was the mastermind who was responsible for instructing the others to go to the money exchange shop with the machetes to commit the robbery, Person 3 and WP would rob Guan with the machetes, and he would be responsible for running away with the robbed money;

(19)  There was a backpack inside the vehicle which would be used for carrying the robbed money;

(20)  The face mask found on and seized from him was provided to him by Person 1. Person 1 gave each of them a face mask and asked them to use it when they commit the robbery;

(21)  The badminton racket bag seized from the grey vehicle belonged to WP and this badminton racket bag contained machetes; and

(22)  When the photo of Guan found inside Person l’s mobile phone was shown to him by the police, he confirmed that this was the photo·shown to him by Person l at the material time.”

7.  It is relevant to note that also before the court, another defendant also pleaded guilty to the conspiracy to rob charge. He was Chan Chun Ming, Jeremy and referred to as D3 (Chan).  The applicant was referred to as D2, and it would appear that D1 was Person 1, whose case  was only proceeded with in relation to three traffic offences concerning the grey car.  In Chan’s summary of facts, it was acknowledged that he knew Ms Guan and provided a photograph of her to a person he identified as “H”, a local male, and “M”, a South Asian male, to commit a robbery.  He also sold his grey car to M for them to commit the robbery, which was the vehicle in which the four men were at the time of their apprehension by the police. 

The sentence

8.  Before he was sentenced, the applicant made two non-prejudicial statements dated 24 October 2022 and 14 April 2023 respectively.  They were before the court at the time of sentence.

9.  In her reasons for sentence, the Judge comprehensively reviewed the evidence and the applicant’s background and mitigation.  She referred extensively to the relevant sentencing authorities dealing with armed robbery and the aggravating factors that may warrant the enhancement of a sentence for this type of crime.  She considered this to be a very serious robbery that the intervention of the police had fortuitously stopped.  She found that this was a well-planned and premeditated robbery, targeting the proprietress of a money exchange shop when she would be alone and isolated.  The gang consisted of five robbers, who were armed with machetes and organized to rob the victim and make a quick getaway.

10.  The Judge adopted a starting point of 10 years’ imprisonment, which she enhanced by 1 year to 11 years’ imprisonment for the applicant’s status as a Form 8 recognizance holder.  She reduced the applicant’s notional starting point by 25% for his late guilty plea on the first day of trial and a further 2% for his full confession because without it, there may have been insufficient evidence to prosecute him.  The resultant sentence was 8 years’ imprisonment.

The leave application

11.  In his correspondence to the court, the applicant does not question the approach taken by the Judge on the matters that she took into account when sentencing him.  He complains that the Judge failed to consider appropriately the information he had rendered to the authorities, which he argues, when considering similar cases, deserved a further 5% discount on his sentence. 

12.  In her reasons for sentence, the Judge noted that the applicant had provided information, but it had been assessed as being of “no value to the authorities”.  The usual procedure had not been followed by the prosecution of providing a statement from the case officer and a certification from a senior officer as to whether the assistance provided by the applicant was of practical use.  Accordingly, the judge did not take this matter into account when determining the sentence to be passed.

13.  I note, however, that when a defendant provides assistance to a law enforcement authority, it is for the authority to determine whether or not it is of practical use.  When an authority forms the view that the information or assistance is of no practical use unless the papers clearly suggest to the contrary, that should normally be the end of the matter.  It is not for the courts to become embroiled in endless debates or futile wrangling between the defence and the prosecution about how the information or assistance should be treated or regarded: HKSAR v Yeung Hoi Ting [1].

14.  It was held in Yeung Hoi Ting that, in exceptional circumstances, it is open to a sentencing court to address any issue of bad faith on the part of the authority or to come to a different view of the assistance by the authority if the evidence suggests otherwise.[2] 

15.  On a preliminary view of the nature of the assistance the applicant was prepared to provide the authorities, namely giving evidence for the prosecution against the other persons allegedly involved in the robbery, I questioned why the prosecution took the view that the applicant’s assistance was of no practical use.  He gave a full and detailed account of his and others’ involvement in the robbery.  He was supported by the police evidence of finding the applicant and the three others in the grey car, the items and equipment for an armed robbery, including two machetes, gloves and face masks, a photograph of the target person of the robbery, the proprietress of the money exchange shop, stored in the mobile telephone of Person 1, and the grey car was fitted with false licence plates.

16.  Mr Isaac Guan, for the respondent, informed me that the decision had been taken that the applicant’s assistance was of “no practical use” because, on legal advice, the applicant lacked credibility due to discrepancies between his statements in the two video recorded interviews and the two non-prejudicial statements.

17.  I adjourned the leave application for the procedure set out in Yeung Hoi Ting to be complied with by filing a statement from the investigating officer and certification from a senior officer of the authority regarding the assistance rendered by the applicant and the alleged discrepancies between the applicant’s statements in his video recorded interviews and non-prejudicial statements.  I further directed that the Appeal Bundle include a copy of the applicant’s two video recorded interviews and two non-prejudicial statements and a copy of Chan’s summary of facts.

18.  The respondent has filed with the court a statement from Detective Senior Inspector of Police, Woo Cheuk Hin, Ivan, dated 8 February 2024, in which he sets out the background and history of the case, the assistance rendered by the applicant and the police’s assessment of it.  Senior Superintendent of Police, Mao Lee Sha, has examined the facts in the Detective Senior Inspector’s statement and certified that they are as reported by the Detective Senior Inspector in his statement.

19.  The Detective Senior Inspector provided a detailed description of the two non-prejudicial statements made by the applicant.  He explained that the four men in the grey car and, later, two Chinese males were arrested for conspiracy to rob.  On legal advice, Person 1 was charged with three traffic related offences, and the applicant and Chan were charged with conspiracy to rob.  The conspiracy to rob charges against Person 1, Person 3 and Person 4 were withdrawn due to insufficient evidence.  On 16 August 2022, the legal representative for the applicant informed the prosecution that he wished to plead guilty to the conspiracy to rob charge and was prepared to testify as a prosecution witness against the other three persons.  As a result, two non-prejudicial statements were taken from the applicant on 24 October 2022 and 14 April 2023. 

20.  The Detective Senior Inspector stated that the police assessed the applicant’s information and assistance of no practical use.  He accepted that the conduct of the three men was highly suspicious, but without the applicant’s non-prejudicial statements, “it was unclear what they intended or conspired to do”.  He stated that the police assessed the applicant’s credibility and reliability as a prosecution witness as “low”.  

21.  I note that the four men in the grey car were also charged with possession of an offensive weapon in a public place, namely the two machetes in the vehicle, which was also later withdrawn.

22.  Mr Guan has provided a list of discrepancies between the applicant’s two video recorded interviews and two non-prejudicial statements, which was the basis for the opinion that the applicant lacked credibility.  Whilst there are discrepancies, they mainly concerned the names and roles of the other persons and certain events but did not detract from his account that the four men were in the grey car to commit a robbery on Ms Guan. As I have already pointed out, there was independent evidence in support of the applicant’s account that he and the three other men were in the vehicle to commit a robbery.

23.  The issue before the court is whether the applicant provided assistance that was of practical use to the authorities.  The procedure laid out in Yeung Hoi Ting was not followed by the prosecution at the applicant’s sentencing hearing.  The issue of the applicant’s assistance to the authorities was dealt with by the prosecution, asserting that it was of no practical value.

24.  In the exceptional and unusual circumstances of this case, I find that on the face of the information and assistance that the applicant was prepared to provide the authorities, there is an issue as to whether it would have been of practical use, notwithstanding the discrepancies between his statements. 

Conclusion 

25.  I have decided, in the exceptional circumstances of this case, to grant the applicant leave to appeal against his sentence because there is a question as to whether the assistance he provided to the authorities by the provision of information and the preparedness to give evidence against the others allegedly involved in the robbery can be properly categorised as “no practical use”.  This is not suggesting that there has been any bad faith on the part of those involved but whether the evidence suggests a different view of the assistance by the relevant authorities.

26.  It follows that I grant the applicant an appeal aid certificate to be legally represented in his appeal under Rule 12(3)  of the Legal Aid in Criminal Cases Rules, Cap 221.