HKSAR v. MOHAMMED TOFAEL AHMED

CACC 306/2018

[2020] HKCA 33

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 306 OF 2018

(ON APPEAL FROM DCCC NO 237 OF 2018)

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R E A S O N S   F O R   J U D G M E N T

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.  With leave of this Court,[1] the appellant appealed his sentence of 3 years and 8 months’ imprisonment which was imposed by HH Judge Dufton, following the conviction of the appellant on his own plea to four charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The brief facts

2.  The appellant is a Form 8 recognizance holder from Bangladesh who has been in Hong Kong for almost 6 years.

3.  He admitted that on three occasions he sold dangerous drugs to undercover police officers conducting controlled purchases. The first occasion took place at 8:59 pm on 2 December 2017, at 1A-1B Mody Road, Tsim Sha Tsui, when he sold a bag of powder containing 0.48 gramme of cocaine to an undercover police officer for $1,200 (Charge 1).  The second occasion was at 9:49 pm on 2 December 2017, at the junction of Nathan Road and Mody Road, when he sold a bag of powder containing 0.52 gramme of cocaine to an undercover police officer for $1,500 (Charge 2).  The third occasion took place at 6:15 pm on 10 December 2017, at the first floor staircase of Mirador Mansion, Tsim Sha Tsui, when he sold a bag of powder containing 0.46 gramme of cocaine to an undercover police officer for $1,500 (Charge 3). 

4.  After the third sale, the appellant had taken up position outside 1A-1B Mody Road where he was arrested and searched.  He had in his possession for the purpose of trafficking two bags of powder containing a total of 0.83 gramme of cocaine (Charge 4).

5.  The total retail value of the drugs seized was $3,083.96.

The judge’s sentence

6.  Having reviewed the appellant’s criminal conduct and personal circumstances, the judge concluded that the charges were serious offences of trafficking. 

7.  Applying the relevant sentencing guidelines,[2] the judge adopted a starting point of 2 years’ imprisonment for each of Charges 1, 2 and 3, and 2 years and 3 months’ imprisonment for Charge 4.  He enhanced the starting points by 6 months for the aggravating factor that the appellant was a Form 8 recognizance holder at the time of the offences[3] and reduced the notional sentences by one third for the appellant’s guilty pleas.  This resulted in a final sentence of 1 year and 8 months’ imprisonment for Charges 1, 2 and 3, and 1 year and 10 months’ imprisonment for Charge 4.

8.  In addressing the issue of the totality of sentence, the judge referred to HKSAR v Muhammad Riaz Awan[4] which also concerned a Form 8 recognizance holder, who committed three acts of trafficking cocaine and Ice to undercover police officers in Wanchai.  The judge noted that the Court of Appeal, in upholding a total sentence of 4 years’ imprisonment on a plea of guilty, had held that a deterrent sentence was required where repeated commercial trafficking took place in an area where local residents and tourists often gathered.  He accordingly concluded:

“21. I am satisfied that a total sentence of 3 years and 8 months’ imprisonment properly reflects the defendant’s criminal culpability on the four charges and takes into account the defendant’s personal circumstances, including that he has no drug convictions, the death of his mother and ill-health of his father, and the seriousness of the offences, including the total quantity of cocaine.”[5]

9.  In taking this approach, the judge cited the cases of HKSAR v Ngai Yiu Ching[6] and HKSAR v Pau King Kong.[7]

10.  The judge then calibrated the sentences as follows to arrive at an overall sentence of 3 years and 8 months’ imprisonment.  In respect of Charge 1, the sentence was 1 year and 8 months’ imprisonment; on Charge 2, the sentence was 1 year and 8 months’ imprisonment with 8 months consecutive and 12 months concurrent to Charge 1; on Charge 3 the sentence was 1 year and 8 months’ imprisonment with 8 months consecutive and 12 months concurrent to Charges 1 and 2; and on Charge 4 the sentence was 1 year and 10 months’ imprisonment with 8 months consecutive and 14 months concurrent to Charges 1, 2 and 3.

The appeal against sentence

11.  Mr James Sherry, counsel for the appellant, took no issue with the starting points nor the enhancement of 6 months on each charge for the fact that the appellant was a Form 8 recognizance holder at the time of the offences.  His complaint was that the judge erroneously applied the totality principle in sentencing the appellant, but since the leave hearing, he refined his challenge by the following amended perfected ground of appeal:

“Due to the close proximity in area and time of the drugs involved in Charges 3 and 4, which were part of a common stock and in the appellant’s continuous possession, when sentencing the appellant, the judge erred in that he failed to look at the total quantity of drugs in order to arrive at the appropriate overall starting point.”

12.  In advancing this ground, Mr Sherry pointed out that soon after the appellant had been arrested for the sale under Charge 3, he was searched by the police who found in his possession the drugs under Charge 4.  He argued that the drugs under Charge 4 must have been linked to the recent sale under Charge 3, and therefore arose out of the same transaction, with the drugs forming part of a common stock while being in the appellant’s continuous possession.  He submitted that the judge should have combined the total quantity of drugs under the two charges and adopted a starting point for that quantity.  He calculated that the total quantity of drugs was 1.29 grammes of cocaine, which would correspond to a starting point of 2 years and 5 months’ imprisonment, and after enhancement and a one third discount, would result in a sentence of 1 year and 11 months’ imprisonment.  Following the judge’s sentencing approach that 8 months of the third sentence was ordered to be served consecutive to the sentences on Charges 1 and 2, he submitted that the final sentence should have been 3 years’ imprisonment.

13.  Mr Sherry sought to distinguish Muhammad Riaz Awan from the present case on the basis in that case the sentencing court found the appellant was part of a well-organised and relatively large scale drug trafficking operation in the centre of the city, and the appellant and his accomplices had access to larger quantities of a variety of drugs.  He stressed that the appellant in the present case was not part of a large scale drug trafficking operation and the offences he committed occurred in close proximity to each other on two separate occasions in a locality that was not the centre of the city. 

14.  In support of his contention that Charges 3 and 4 should be sentenced together by combining the quantities of drugs under each charge, Mr Sherry relied on the case of HKSAR v Nurofi’ah,[8] where the Court of Appeal was concerned with an application for a certificate on a point of law of great and general importance in relation to an appeal against sentence to the Court of Final Appeal.  It seems that the point of law was concerned with the sentencing of a defendant for multiple offences of drug trafficking and what weight should be given to the total quantity of narcotic and the circumstances of the offences.  In rejecting the application, the Court made the following comments, which Mr Sherry relied upon in support of his submission:

“8. Mr Ma emphasised that there have been cases where the courts could rely on the quantity of drugs involved in all the offences as the basis of the overall tariff when dealing with multiple offences of drug trafficking. Where different amounts of drugs are found in one location or at different locations but they are part of a common stock or in the defendant’s continuous possession or closely linked, the court should for the purpose of achieving an appropriate overall sentence look to the total quantity of drugs in arriving at an appropriate overall starting point.

9. We do not disagree with Mr Ma’s stance, which also has support from the cases he cited.

10. However, we need to point out that the approach mentioned in those cases is merely applicable where the drugs involved in the charges are closely connected, for example, the drugs are part of a common stock and in the defendant’s continuous possession within the same time period.

11. The above approach is not applicable to multiple trafficking offences involving different quantities of drugs in different time periods.  Sentences must be determined according to the peculiar circumstances of individual cases.  It is in fact impossible for the court to set down any formula as to the relative weight accorded to the two factors in sentencing, namely the quantity of narcotics and the circumstances of the offences, as requested by Mr Ma.  These two sentencing factors cannot be given the same weight in all cases.”

15.  However, significantly the Court went on to emphasise:

“13. When a defendant is convicted of repeated offences for multiple trafficking at different times, the court has to decide individual sentences on the circumstances of individual offences. The court also has to determine, having regard to the totality principle, whether individual terms should be consecutive or concurrent so as to ensure an overall appropriate total sentence.

14. When the above approach is adopted in sentencing, it is hardly surprising that the overall sentence for multiple trafficking is heavier than that of a single offence involving the same amount of narcotic.”

Discussion

16.  There may be occasions where two separate amounts of drugs which have been found at the same time in one location or at different locations in circumstances which are closely linked in time, whether of the same kind or consisting of different kinds of drugs, need to be considered together for the purposes of achieving a just overall sentence: HKSAR v Amnuaychoke Nopporn.[9] Such an approach will usually arise in cases that involve the transportation or storage of drugs simpliciter. 

17.  In the process of sentencing multiple offences, the court must ensure that the overall sentence is not excessive for the overall offending.  This will involve passing an individual sentence in relation to each offence and then addressing the totality of the sentence by imposing an ultimate overall sentence that is just and balanced.

18.  The correct approach to be taken to the sentencing for multiple offences was discussed by Stock VP in giving the judgment of the Court in HKSAR v Ngai Yiu Ching.[10]  He explained that when sentencing for multiple offences the initial step is to identify the appropriate sentence for each offence and the final step is to achieve a total sentence appropriate to the culpability of the offender.[11]  In the course of doing so, the question will arise whether to order any of the sentences for the offences to run concurrently with each other or whether they should be served consecutively.  This will depend upon the facts and circumstances of the case and how it has been charged. 

19.  As pointed out by Stock VP, an offender may be charged in respect of a number of different, or similar, offences committed on wholly separate occasions over a period of time or with a number of different offences committed in the course of one episode of criminal activity.[12]  He illustrated that in the case of several offences committed in the course of a single episode, this might be reflected by one charge embracing all the criminal conduct involved or separate charges for each criminal act.  Whatever course is taken, he stressed that the sentencing court must ensure that the ultimate overall sentence reflects the true overall culpability. 

20.  Stock VP emphasised that when dealing with multiple offences the sentencing court must take care, first, to pass a sentence for each individual offence that is appropriate to that offence and the circumstances of its commission and, second, not to punish the offender twice for the same conduct. [13] He noted that as a safeguard of ensuring that an offender is not punished twice for the same conduct, the courts developed the one transaction rule which provides that if the number of offences that have been charged arise from one transaction or course of criminal conduct, then concurrent sentences should be imposed.  However, he warned against the rigid application of the rule which he explained is meant to be a practical working rule and that the focus of a sentencing court should be on determining whether an offence adds to the culpability or criminality of another offence and assessing the overall culpability or criminality through the application of the totality principle.[14]

21.  When sentencing for multiple offences, the imperative is that the ultimate sentence should be a reflection of the true culpability disclosed by the offences of which the defendant has been convicted, and Stock VP explained that this approach:

“23. ... is likely to be a more effective approach in reflecting an offender’s overall culpability than one which becomes overly concerned with the one transaction rule, although in the case of more than one offence, the court must guard carefully against punishing twice for the same act. If the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole. As with most sentencing exercises, the approach is an art, sensitive to the individual circumstances of the case and the offender.”

22.  Whether multiple sentences ought to be concurrent or consecutive, is determined by the application of the principle of totality of criminality.  This will require a court assessing whether one offence in relation to another adds to the culpability of the offender, and this may simply be addressed by asking whether the sentence for one offence comprehends and reflects the criminality for the other offence?[15]  The ultimate objective of this approach is, as stated by Stock VP, “to arrive at a sentence that is fair to the offender yet also properly reflects the culpability of his conduct.”[16]

23.  In a subsequent decision of this Court in HKSAR v Pau King Kong,[17] McWalters J (as he then was), having reviewed the principles of Ngai Yiu Ching, noted that the totality principle in helping the sentencer to arrive at a just sentence looks not just to the seriousness of the offences and the culpability of the offender but also to the circumstances of the offender.  He explained that in drug trafficking cases, the circumstances of the offender would not benefit him in determining the appropriate starting point, but mitigating features could properly be taken into account when applying the totality principle.[18]

24.  As already noted, the judge correctly directed himself when applying the totality principle, and took into account the personal circumstances of the appellant as well as the seriousness of the offences, including the total quantity of cocaine.

25.  Mr Sherry submitted that Charges 3 and 4 should have been combined into a single charge of trafficking to reflect the reality of what took place.  He submitted that there was no need for the offence under Charge 3 to have been procured by the undercover police officer.  Instead, had the undercover police officer immediately arrested the appellant then he would have found all the drugs on his person and only one charge would have resulted. 

26.  But in reality this is not what took place.  The appellant transacted the sale of a bag of drugs to the undercover police officer and immediately went back on the street to traffick the other two bags of drugs he had on him.  This is based on the facts to which he admitted and the charges to which he pleaded guilty.

27.  Mr Sherry also submitted that because Charges 3 and 4 occurred in close proximity in area and time that the total quantity of drugs should be considered together to arrive at an overall starting point.  As pointed out by Stock VP in Ngai Yiu Ching, the fundamental question “is not whether two or more offences are committed at about the same time, but whether the second or other further offences add to the culpability or criminality of the first.”[19]

28.  Mr Sherry sought to minimize the criminality involved in two respects.  First, he argued that there was no evidence the appellant was acting together with others as part of a large scale drug operation.  Whilst it is true that there was no evidence of the involvement of others, the fact is the appellant is a Form 8 recognizance holder who would not have had the funds nor the means to trade as a seller of drugs unless he had links to or support from an organized drug trafficking operation. 

29.  Secondly, Mr Sherry argued that the transactions were in close proximity to each other and that they occurred at a location that was not the centre of the city.  He took no issue that the two transactions under Charges 1 and 2, which occurred on 2 December 2017, about an hour apart from each other, were not part of the one transaction, even though the drugs would have been “common stock” and “closely linked”.  Nor did he quarrel with the order that 8 months of the sentence on Charge 2 should run consecutively to the sentence on Charge 1.  The closeness in time of each offence reveals that the appellant was an active seller of drugs.  He stationed himself in the area of Mody Road for prompt dissemination of the drugs to members of the public.  As soon as he completed the sale under Charge 3, he was back on the street ready to sell the other two packets, which no doubt would have occurred if he had not been arrested.  He did so in a popular locality of Hong Kong amongst local residents and tourists.

30.  As submitted by Ms Jasmine Ching, for the respondent, the offending under Charges 3 and 4 did not wholly arise from the same transaction or the same conduct.  Charge 3 concerned the actual sale of drugs by the appellant to another person, while Charge 4 concerned the possession of two bags of drugs that the appellant intended to sell.  She also submitted that the close proximity in time of the three transactions, two on 2 December and one on 10 December, should be viewed as an aggravating factor because it reflected repeated offending at various locations.  She made the point that if Charges 1 and 2 concerned separate criminal acts which justified partially consecutive sentences, a point Mr Sherry did not seek to argue against, then the same rationale equally applied to Charges 3 and 4.  It would therefore be wrong to make the sentences on Charges 3 and 4 either wholly concurrent or to combine the two quantities of drugs together for the purpose of sentencing.

31.  The facts reveal that the appellant was an active seller of drugs in a popular retail and entertainment district where local residents and tourists often gathered.  The drugs he sold were packaged in a tradable quantity for immediate sale to a member of the public.  He admitted to trafficking the quantity of drugs on each of the occasions he was charged.  He actually sold the drugs to two different undercover police officers on the two occasions on 2 December, and one of the previous undercover police officers on the occasion on 10 December.  He admitted to trafficking the two bags of drugs mentioned in Charge 4.  Whilst he had not actually sold them, he was back on the street with the clear intention of doing so, some minutes after completing the sale of the drugs under Charge 3.

32.  It is also important to bear in mind that the gravamen of the offences was the selling of drugs on the street.  In our view, the judge properly characterised the trafficking offences as serious.

33.  The judge correctly recognised that he was required to impose separate sentences for each of the offences for which he had convicted the appellant.  No issue was taken with the starting points adopted by the judge on each charge, which were enhanced by 6 months’ imprisonment for the aggravating factor that the appellant was a Form 8 recognizance holder at the time of the offences.  The judge then reduced the sentences by one third for the appellant’s guilty pleas, there being no other mitigating factors warranting a reduction of his sentences.  The judge next addressed the totality principle and guided by the approach in Ngai Yiu Ching and Pau King Kong, he arrived at an overall sentence that reflected the true overall culpability of the appellant.

34.  In our view, Charges 3 and 4 were two separate and distinct offences and Charge 4 added to the culpability of the appellant in relation to Charge 3.

Conclusion

35.  We found no fault in the judge’s approach or reasoning in sentencing the appellant, nor in the total sentence he ultimately imposed on him.  We accordingly dismissed the appeal against sentence.

[1] Granted by McWalters JA on 13 September 2019.

[2] R v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

[3] HKSAR v Ali Saif, unrep., CACC 309/2017, 14 June 2018.

[4] HKSAR v Muhammad Riaz Awan, unrep., CACC 135/2010, 3 December 2010.

[5] Appeal Bundle, 14.

[6] [2011] 5 HKLRD 690.

[7] [2013] 3 HKLRD 676.

[8] Unrep., CACC 260/2011, 27 July 2012 (unofficial English translation).

[9] Unrep., CACC 441/2001, 11 April 2002, at para 5.

[10] [2011] 5 HKLRD 690.

[11] Ibid., at para 13.

[12] Ibid., at para 14.

[13] Ibid., at paras 15 – 17.

[14] Ibid., at paras 18 – 22.

[15] Ibid., at para 26, where Stock VP adopted the legal position as stated in Cahyadi v R (2007) 168 A Crim R 41, at 47, para 27.

[16] Ibid., at para 27.

[17] [2013] 3 HKLRD 676.

[18] Ibid., at para 37 – 44.

[19] Ibid., at 699, para 21.