HKSAR v. MOHAMMED SAIF

CACC 288/2018

[2020] HKCA 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 288 OF 2018

(ON APPEAL FROM HCCC NO 84 OF 2018)

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J U D G M E N T

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Introduction

1.  The applicant and Mohammad Shahnawaz Ali (whom I will refer to by their case designations as D1 and D2 respectively) were each charged with a single count of trafficking in a dangerous drug, namely 997 grammes of a solid containing 834 grammes of cocaine in the count against D1 (Count 1), and 997 grammes of a solid containing 847 grammes of cocaine in the count against D2 (Count 2).  The allegation against the two defendants was that, on 25 January 2017, they crossed into Hong Kong through Lo Wu Control Point, having on their person the quantity of drugs as specified in the count against them.  On 5 March 2018, they each pleaded guilty to the count of trafficking that they faced in the Magistrate’s Court.  They were committed for sentence to the Court of First Instance and appeared before Campbell-Moffat J (the Judge) on 29 May 2018.  The Judge adjourned the sentencing of the two defendants to assess the assistance that they had provided or would provide to the authorities.  On 12 September 2018, the Judge, after hearing submissions and mitigation, sentenced D1 to a term of 12 years and 10 months’ imprisonment, and D2 to a term of 15 years imprisonment.

2.  On 26 September 2018, D1 filed a notice of application for leave to appeal against sentence.  He complained his sentence was more than what other defendants had received with a greater quantity of cocaine, and he should have received a 50% discount to his sentence for the information he had provided to the authorities.  On 12 June 2019, D1 filed perfected grounds of appeal against sentence, in which he directed his complaint to the inadequacy of the discount he received on his sentence for the assistance he had rendered to the authorities. 

3.  On 22 October 2018, D2 filed a notice of application for leave to appeal against sentence out of time.  The application for leave was heard on 26 November 2019, which was refused.[1]

The summary of facts

4.  The facts as outlined to the Judge and admitted by both D1 and D2 can be summarised as follows. 

5.  On 25 January 2017, Customs and Excise officers intercepted D1 and D2 at Lo Wu Control Point for customs clearance.  A search of D1, revealed that he had strapped to his body six packets of a total quantity of 997 grammes of a solid, containing 834 grammes of cocaine, with an estimated street value of $905,276.  A search of D2, also revealed that he was carrying packets of cocaine.  He had four packets strapped to his body and one packet inside his underpants, which consisted of a total quantity of 997 grammes of a solid, containing 847 grammes of cocaine, with a street value also of $905,276.

6.  After D1 was arrested and cautioned, he said the substance he was carrying was cocaine; it had been given to him by a friend to bring into Hong Kong; he was to go to Sheung Shui where someone would call him with further instructions; and after making the delivery he would receive a reward of $1,000.

7.  D1 revealed to Customs and Excise officers that he knew D2, and that he was his friend.  He said D2 also had cocaine on him but he did not know the quantity involved.  In a subsequent video record of interview, D1 stated he supplied mobile telephone accessories from mainland China to Hong Kong and India and would earn around RMB 15,000 a month.  He said his Indian friend “Tony”, whom he had known for 3 months, gave him the cocaine. This happened in mainland China when Tony had called him and asked him to go to a hotel in Shenzhen to collect the cocaine.  Tony then assisted him in wrapping the packets of drugs to his body, who told him at the time that he would only be imprisoned for a month if he got caught.  D1 said the plan was that after he arrived at Sheung Shui, Tony would call him and pass on his telephone number to someone in Hong Kong, who would then contact him and inform him where he should deliver the cocaine.  However, Tony did not call him as arranged.  He said he was to be given $1,000 reward from the recipient of the drugs.  He returned to Hong Kong with D2, who also had been given cocaine to bring into Hong Kong by Tony.

8.  After D2 was arrested and cautioned, he claimed the substance found on him was “gold cleaning powder” which was given to him by D1.  He said he was promised by D1 that he would receive a reward of $2,000 for delivering the substance from mainland China to Hong Kong.

9.  In a subsequent video record of interview, D2 claimed he had been living in mainland China and was in the mobile telephone business.  He said he travelled to Hong Kong once or twice a month.  He claimed an unknown man gave him the substance in mainland China, and this was done in the presence of D1.  He said D1 told him the substance was “gold polish powder”. He claimed he never checked the substance and he was to receive his reward from the unknown man through D1 once he crossed the border into Hong Kong.

10.  The mobile telephones of the two men were examined and revealed that they frequently exchanged messages with each other. Their travel records also showed they frequently travelled between mainland China and Hong Kong.

11.  It was admitted in the summary of facts that D2’s fingerprint was found on one of the plastic bags containing the drugs seized from D1.

12.  It was also acknowledged in the summary of facts that D1 and D2 admitted and accepted that they knowingly imported into Hong Kong the drugs seized from them.

The reasons for sentence

13.  Having reviewed the facts of the case and the backgrounds of the two defendants, the Judge in sentencing adopted a starting point on each of them of 21 years and 3 months’ imprisonment in accordance with the sentencing guidelines in HKSAR v Abdallah.[2]  This was enhanced by 1 year and 9 months to 23 years’ imprisonment for the aggravating factor of the international element in accordance with the sentencing guidelines in HKSAR v Chung Ping Kun.[3] 

14.  The Judge then reduced the notional starting point by 6 months for the involvement of D1 and D2 in Father John Wotherspoon’s anti-drug campaign.

15.  In sentencing D1, the Judge highlighted the fact that D1 was prepared to plead guilty and assist the authorities at a very early stage.  She noted that D1 had made considerable effort to assist law enforcement agencies in Hong Kong as well as in mainland China and Thailand to act on the information he had provided, which she described as being “the limited information available” to him.[4]  She accepted D1 had displayed a genuine desire to assist the authorities and was clearly remorseful.  She noted, however, that D1’s assistance to the authorities was not shown to be useful to them and there was no official confirmation of any arrests outside Hong Kong.  She further accepted that D1’s co-operation with the authorities may have led D2 to plead guilty.  She articulated her assessment of D1’s assistance to the authorities as follows:

“Although, little came of the factual assistance you gave in respect of other participants and there is no official confirmation of arrests elsewhere, I take the view, suggested by Ms Crebbin, that the 2^nd defendant may very well have finally realised that he had little choice but to plead guilty in March 2008. In part, that may have been because he faced the threat of a far greater ultimate sentence by being charged with two offences, but also it could very well have been that he foresaw that you would give evidence against him. He would not have known the views of the prosecution on that course. I intend to give you credit for that today and if there comes a time when arrests are made as a result of the other assistance which you have sought to give, then I suggest that you seek a further hearing in order to obtain a greater discount on the sentence which I pass today.”[5]

16.  I should point out at this juncture that there has been no change of circumstance in relation to the other assistance referred to by the Judge, except the Mainland authorities subsequently advised that nothing relevant or useful had been disclosed by D1. 

17.  In respect of D2, the Judge formed the view that he was not truly remorseful even though he had pleaded guilty.  She was also somewhat sceptical about his assistance to the authorities, which she found was of no use or value, and therefore concluded he was not deserving of any discount for it.

The applicant’s submissions

18.  It is recognised by Mr Andy Hung, for D1, that the Judge gave D1 a total discount to his sentence of 44.2%, reducing the notional starting point of 276 months (23 years) to 154 months (12 years and 10 months).  Nonetheless, he submits that the sentence imposed on D1 was manifestly excessive because the Judge should have given a discount of about 55%, or at least no less than 50%, to his sentence for the information he had provided to the authorities.  He complains the Judge failed to have regard to D1’s exemplary post-arrest conduct, which included confessing to the offence upon his arrest; informing the Customs and Excise officers of the role of D2; taking part in a controlled delivery; providing a non-prejudicial statement against D2, which resulted in D2 entering a plea of guilty to the charge that he faced; taking part in Father John Wotherspoon’s anti-drug campaign; and providing potentially significant and useful information to the authorities.  He further complains the Judge gave insufficient regard to the intimidation and threats that had been made to D1’s  family in India.[6]

19.  In support of these submissions, a notice of motion has been filed with the Court which seeks to adduce additional evidence in the form of an affirmation from D1.  In his affirmation, D1 sets out the history of his assistance to the authorities after he was arrested for the present offence and the impact his assistance has had on his family.  He mentions that after he was arrested he participated in a controlled delivery.  He explains that he was taken to Sheung Shui MTR station where he waited to be contacted as previously arranged with the person he identified as Tony.  No contact was made and the operation was called off by the Customs and Excise officers.  He also mentions that he later disclosed to the authorities that Tony and another person, whom he also named, both trafficked in dangerous drugs in Shenzhen, and another person, whom he named, is an asylum seeker who trafficked in dangerous drugs in Hong Kong.  He states that he has provided certain limited particulars about these men both to the relevant authorities and Father Wotherspoon in an effort to have them identified.  He points out that the information he provided Father Wotherspoon was published on his website.  He claims because he had identified the three men to the authorities that they would have realised that he was the source of the information. He also claims D2 was all along going to contest the charge against him and D2 threatened to kill his family in India if he assisted the prosecution against him.  He states that his younger brother and other family members had been threatened in India, and as a consequence his younger brother moved to Dubai, where he is now living.

20.  It was submitted by Mr Hung that although D1’s involvement in an unsuccessful controlled delivery had not been mentioned to the Judge, it was nevertheless a matter that, had it been taken into account, would have resulted in a further discount to D1’s sentence.  He also submitted that at the time of sentencing there had been no feedback about the information D1 had provided that concerned the activities of others in mainland China and Hong Kong. 

21.  On the day D1 was arrested, 26 January 2017, he participated in a video record of interview, in which he admitted his involvement in trafficking the drugs found on him as well as the involvement of others.  He later made a non-prejudicial statement on 22 September 2017, in which he provided further details and particulars about the identities of the other persons involved in his case and the drug trade in general.  He made a second non-prejudicial statement on 5 July 2018, in which he provided two photographs of a person who he said was a supplier of drugs.  This all occurred before he was sentenced and the Judge was fully aware of the nature and extent of his assistance to the authorities.  In her reasons for sentence, the Judge carefully considered and evaluated D1’s assistance to the authorities with extensive reference to the relevant sentencing guidelines.

22.  It is claimed that D1 had not provided detailed information to his then legal representatives about the intimidation and threats made to his family members in India because he only communicated with his younger brother, which was in any event limited due to the cost of long-distance telephone calls.[7]

23.  It is further claimed that D1 had not provided all information he could provide to the authorities at the time of his sentence, and consequently he later provided more information.  After D1 was sentenced, he made a third non-prejudicial statement on 29 May 2020, in which he provided the nicknames of two persons whom he claimed trafficked in drugs from a particular location at a specified building.  He later provided photographs to the authorities that purported to be the two persons he had mentioned.[8] I should note that inquiries by the authorities revealed that this information was of no practical use.

24.  In response to the submissions from D1, the respondent has filed three notices of motion in which it seeks to adduce additional evidence before this Court from a Customs and Excise officer, who refutes D1’s complaints against Customs and Excise and corrects D1’s claims as to the nature and value of the assistance he provided to them.

Discussion

25.  Before I proceed to the discuss the merits of this application, I should point out that neither counsel referred to HKSAR v Yeung Hoi Ting,[9] which sets out the approach and principles relevant to a dispute about the assistance that a defendant has rendered to the authorities.  The provision of information to a sentencing court by a relevant law enforcement authority about the assistance the offender has rendered to them is done at the offender’s request and on his behalf.  The offender who submits such information as part of his mitigation is therefore bound by it.  As a matter of course, a sentencing court will not normally be the forum for any dispute about the extent of the assistance supplied to the law enforcement authority or of its assessment of the value of such assistance.[10]  Although it will be open to a sentencing court to address any issue of bad faith on the part of the law enforcement authority, or to come to a different view of the assistance by the authority if the evidence so suggests but it needs to be emphasised, that this will only take place in exceptional circumstances.[11]

26.  Having said that, it needs to be stressed that law enforcement agencies have a legal and public duty to ensure that crime is fully and properly investigated, and where an offender has rendered assistance to the authorities this should be handled with scrupulous care and attention as required by the procedural and operational demands of the relevant law enforcement agency.  It is in this regard that law enforcement agencies and the prosecuting authority have a very important role to play in the sentencing process of an offender who has rendered assistance to the authorities, which should always be carried out in strict adherence to the relevant principles and procedure as laid out in Yeung Hoi Ting.[12] The essential purpose of this elaborate regime is to ensure that the court does not become a forum for a “war of words” between the parties in relation to disputed assistance. 

27.  As I have already noted, a notice of motion dated 17 December 2019 has been filed on behalf of D1, seeking to adduce fresh evidence before this Court in the form of an affirmation from him.  In the affirmation, he purports to set out the information he has provided to Customs and Excise and at the same time complains about how Customs and Excise have failed to acknowledge or appreciate the information.  In short, he refers to the information he provided to the authorities after his arrest, as well as to Father Wotherspoon, which variously consisted of identifying certain persons involved in the trafficking of the drugs; he notes that at his sentencing there was no mention of his participation in a controlled delivery; he refers to the additional information he provided to Customs and Excise officers after his sentence which consisted of two telephone numbers which he said were connected to two drug traffickers and an address where he said drug activities take place; and he explains how his assistance to the authorities has affected his family.

28.  The respondent in turn has filed three notices of motion dated 7 May, 4 and 6 June 2020, by which it seeks to adduce fresh evidence in the form of three affirmations from Senior Inspector Fu Yi, responding to D1’s account of matters that he had mentioned and refuting his complaints about Customs and Excise’s handling and assessment of the assistance he had rendered to them.

29.  The adducing of fresh evidence on appeal is governed by section 83V(2)(b) of the Criminal Procedure Ordinance, Cap 221.  For the purpose of this leave application, I will consider the contents of the affirmations that have been filed by asking whether they fulfil the conditions of the section, and whether, when viewed on a provisional basis, they support or lead to a reasonably arguable ground of appeal against sentence.

30.  The discount D1 received to the starting point of his sentence was 44.2%.  That was a significant and sizable discount for the assistance that he had rendered to the authorities, which incorporated the full one third discount for his timely plea of guilty.  As has been repeatedly noted by this Court, the one third discount subsumes any display of remorse and cooperation with the authorities upon arrest.  It is usual for a defendant to receive a 40% discount to his sentence where he has provided incriminating information against a co-defendant, but has not been required to give evidence against his co-defendant, even though he was willing to do so, because the co-defendant has pleaded guilty to the offence in which they were involved.[13]  Included in the discount of 44.2% was 6 months for D1’s participation in Father Wotherspoon’s anti-drug campaign.  This exceeds the upper level of the token discount of 3 months as specified in HKSAR v Kilima Abubakar Abbas.[14]

31.  At his sentencing, D1 was represented by highly experienced counsel, Ms Diane Crebbin, who very ably and thoroughly presented mitigation on his behalf.  She addressed the Judge in considerable detail about the applicant’s remorse for his crime and the assistance he had rendered to the authorities.  In the course of her submissions, Ms Crebbin, extensively analysed the assistance the applicant had given and the relevant sentencing principles, with particular reference to HKSAR v Lo Sze Tung Stephanie.[15]  She submitted that D1’s assistance, incorporating a one third discount for his timely plea of guilty, put him in the band of 40 to 50% “even if it’d been right at the bottom end of that”.[16]

32.  D1 specifically mentions that he has learned that the other person he named who operated in mainland China was arrested there in May 2018, and, according to his brother, he was sentenced to 26 years’ imprisonment earlier this year.  If this be true, there is nothing to indicate that it was a result of the information provided by D1.  As already noted, the Mainland authorities had informed Customs and Excise in April 2019 that nothing relevant or useful had been disclosed by D1. 

33.  The information D1 provided consisted of naming certain persons that he said were involved in the drug trade and providing some additional information or material as to their identity.  As a result, the follow up inquiries by Customs and Excise revealed that the information was not useful.  For example, he provided certain telephone numbers that he said had been used by persons he named but they were found to be numbers registered to prepaid Sim cards.  The latest information he provided in his third non-prejudicial statement was general in nature and therefore no follow-up action could be taken at this stage.

34.  The respondent has provided a chronology of the contact and dealings between Customs and Excise officers and D1 with respect to the assistance he has provided to them.  It is fair to describe the provision of information by D1 to the authorities as limited because of the nature and age of the information.  There have been numerous dealings between D1 and Customs and Excise officers over a long period.  It would seem that D1 has on numerous occasions beckoned Customs and Excise officers to see him with the offer of providing information, only to be told what they already know or he has previously said with very little, if any, additional information.  Because of the nature of the information and the staggered supply of it to the authorities, any practical value or use the information may have had has either been compromised or lessened.

35.  It can hardly be said that D1 did not receive appropriate recognition for the assistance he has rendered to the authorities. As I emphasized already the Judge gave D1 a discount of 44.2% and in light of the circumstances that was an appropriate discount.  This adequately reflected his cooperative conduct upon his arrest, his willingness to give evidence against D2 and his provision of information to the authorities.  The fact that his participation in an unsuccessful controlled delivery was not taken into account was more than compensated by the overly generous reduction he received for his participation in Father Wotherspoon’s anti-drug campaign.  The provision of information to the authorities both prior to and after sentence has also been adequately catered for in the percentage discount.  Nothing concrete has been provided about the threats D1 claimed have been made to him and his family because of his co-operation with the authorities.  He claimed that he was threatened by D2 but as has been noted D2 pleaded guilty and sought to cooperate with the authorities himself.

36.  I do not see that the fresh evidence from D1 enhances his ground of appeal to the point that it is reasonably arguable.  Nor do I see him having a reasonable prospect of disabusing the Court of Appeal that the evidence, if received, would not afford any ground for allowing the appeal.

Rendering assistance to the authorities

37.  The rendering of assistance by a defendant in order to receive a discount to his sentence can be open to abuse.  When a defendant tells the authorities what is commonly known in the drug trade, it is clearly not going to be well received by them, nor will it be when the information is of little or no practical use because it is either scant or stale.  There is a tendency for defendants to invite law enforcement officers to contact them with the offer of providing information by giving them something that originates from general prison gossip or from a collage of known and collected information in the hope of reducing their prison sentence.  In a significant number of cases, this is time consuming for the law enforcement officers and often unproductive.

38.  It seems that the provision of information to the authorities has to some extent become a cottage industry, whereby defendants chance their luck in providing whatever information they can to the authorities in an effort to have their sentence reduced, and with lawyers rather unusually becoming involved in the process when normally it would be a matter between the defendant and the relevant law enforcement agency.  An unacceptable consequence of this trend is that it is becoming a long drawn out process with little, if any, value or benefit to the law enforcement initiative.  Not only can it result in a waste of the valuable resources of the law enforcement agency involved, but whatever reliable information has been provided the chances are that it becomes submerged and possibly lost in a sea of unreliable information.

Conclusion

39.  It follows from what I have said that I am of the view that the grounds of appeal against sentence are not reasonably arguable and leave is therefore refused.

40.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1]      HKSAR v Mohammad Shahnawaz Ali (D2), unrep., CACC 288/2018, 26 November 2019, per Zervos JA.

[2]      [2009] 2 HKLRD 437.

[3]      Unrep., CACC 85/2014, 2 July 2014.

[4]      Appeal Bundle, 9N-P.

[5]      Appeal Bundle, 10A-G.

[6]      D1’s Skeleton Argument, at [20].

[7]      D1’s Skeleton Argument, at [25] and [33]-[36].

[8]      D1’s Skeleton Argument, at [22]-[23].

[9]      [2019] 3 HKLRD 516.

[10]     Ibid., at [76].

[11]     Ibid., at [100] (9).

[12]     Ibid., at [83], [89]-[100].

[13]     See Z v HKSAR (2007) 10 HKCFAR 183, at [23]-[24].

[14]     [2018] 5 HKLRD 88.

[15]     Unrep., CACC 190/2017, 25 July 2018 ([2018] HKCA 421).

[16]     Appeal Bundle, 22I-J.