HKSAR v. MOHAMED HUSSAIN MOHAMED IMRAN

CACC 38/2018

[2020] HKCA 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2018

(ON APPEAL FROM HCCC 55/2017)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The applicant and his co-defendant (“D2”) were jointly charged with one count of trafficking in a dangerous drug, namely 410 grammes of a powder containing 261 grammes of cocaine, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The applicant pleaded not guilty at his committal on 20 February 2017 and was committed for trial in the Court of First Instance of the High Court.  The High Court listing hearing of his case took place on 3 April 2017 on which occasion his case was listed for trial on 8 January 2018 with a pre-trial review hearing fixed on 7 November 2017.  On 2 November 2017 the applicant indicated by letter to the court that he wished to change his counsel.  The pre-trial review hearing was then vacated and his case was fixed for mention on 6 December 2017.  On 6 December 2017 the applicant indicated he would be pleading guilty to the count and was considering testifying for the prosecution against D2, who maintained his plea of not guilty.  On 5 January 2018 there was a pre-trial review of the case at which it was indicated by the prosecution that the applicant would be called as a prosecution witness on the trial of D2.  His case was then adjourned to 8 January 2018 for the taking of his plea and the trial of D2.

3.  On 8 January 2018, the applicant appeared before DHCJ Lee (“the judge”), as Alex Lee J then was, and pleaded guilty to the count.  He then testified for the prosecution in the trial against D2.  At the conclusion of D2’s trial, D2 was convicted by the verdict of the jury.  The applicant was sentenced to 7 years and 1 month’s imprisonment and D2 was sentenced to 14 years and 2 months’ imprisonment.

4.  On 4 November 2019, the applicant was refused leave to appeal against his sentence by the single judge[1]. On 15 November 2019, the applicant filed a Notice of Renewal of Application after Refusal by the Single Judge and renewed his application for leave to appeal against his sentence.  At the hearing of his renewed application we refused it and dismissed his appeal.  These are our reasons for so doing.

The Summary of Facts

5.  The Summary of Facts admitted by the applicant and used for the purpose of his sentencing revealed that on 6 August 2016, a parcel from Panama was intercepted by the Customs and Excise (“C & E”) Department when it arrived in Hong Kong by air.  The parcel was addressed to “LAM Kam Sun”, care of an address in Sham Shui Po, with the contact telephone number 852-98004832.  It was later discovered that the address was a vacant building in Sham Shui Po pending redevelopment.  When Customs Officers examined the parcel they found it contained a thermos flask in which the cocaine the subject of the charge was concealed.

6.  On 29 August 2016, the applicant entered the post office and asked for the parcel at the counter.  He presented to the counter a false copy of a passport and a false copy of an electricity bill, both in the name of “LAM Kam Sun” with the delivery address being the same as on the parcel.  The parcel was handed to the applicant and he left the post office.  The applicant was then intercepted and arrested outside the post office.

The applicant’s testimony against D2

7.  In the trial of D2, the applicant testified that in July 2016, D2 told him there was a job to collect “a packet from Panama” containing cocaine.  In August 2016, the applicant accepted D2’s job and prepared false identity documents in accordance with instructions sent to him by D2 by mobile telephone messages.  On 29 August 2016, he went to the post office with D2 in order to collect the parcel and both he and D2 were intercepted outside the post office after he had collected it.  The applicant testified that the collection of the parcel had been arranged by D2 together with another person, whom the applicant referred to as the “black man”.

The mitigation

8.  The applicant is a Sri Lankan and was 32 years of age when he was sentenced.  He came to Hong Kong on 9 August 2005 as a visitor for 30 days and then overstayed.  He lodged a non-refoulement claim on 17 May 2009 but on 18 July 2016 he communicated to the Immigration Department his intention to withdraw his claim.  The applicant had only one criminal conviction which was for breach of condition of stay in 2012 and for which he had been sentenced to one month’s imprisonment.

9.  The applicant’s counsel at trial, Mr Luke McGuinniety, relied on the following matters in mitigation:

(1)  the applicant’s participation in Father Wotherspoon’s campaign by submitting a letter for publication dissuading others not to be involved in the drug trade;

(2)  his assistance to the authorities by providing information and giving evidence against D2 at trial which led to D2’s conviction; and

(3)  his guilty plea.

10.  Mr McGuinniety submitted that as the applicant had committed the offence after he had rescinded his non-refoulement claim he should no longer be regarded for sentencing purposes as a Form 8 recognizance holder and so his sentence should not be enhanced for this reason.  Alternatively, even if the judge was minded to enhance the starting point for this factor the judge should reduce the amount of the enhancement as the applicant should not be treated in the same way as other offenders who were Form 8 recognizance holders.

11.  Mr McGuinniety accepted that the applicant did not plead guilty when he was committed for trial on 20 February 2017.  He asserted that the applicant first indicated his intention to plead guilty to the charge in his 1^st non-prejudicial statement which is dated 30 March 2017 and this was before the listing of his case took place on 3 April 2017.  Consequently, the revised sentencing approach for guilty pleas, as laid down by the Court of Appeal in HKSAR v Ngo Van Nam[2], was applicable to this applicant and affected the discount to which he was entitled.

12.  In relation to the impact on the applicant of the assistance that he provided to the authorities, Mr McGuinniety submitted that the applicant was worried about his safety and that he and D2 were being segregated whilst in prison.  However, he did not put forward any evidence that the applicant was subject to a substantial and very real personal risk for having testified against D2.

The judge’s Reasons for Sentence

13.  The judge applied R v Lau Tak Ming & Another[3] and adopted a starting point of 12 years and 11 months’ imprisonment for trafficking in 261 grammes of cocaine narcotic.

14.  However, he rejected the submission that the applicant’s withdrawal of his non-refoulement claim prior to the offence meant that he should not be regarded as a Form 8 recognizance holder at the time he committed the offence.  Relying on Court of Appeal judgments in HKSAR v Shah Syed Arif [4] and HKSAR v Mahabul Alam Khan[5], the judge considered the applicant’s sentence should be enhanced by 15 months for this aggravating factor thereby resulting in a final starting point of 14 years and 2 months’ imprisonment.

15.  The judge considered the revised sentencing discount regime for guilty pleas as set out in Ngo Van Nam and noted that it did not address the situation where an accused pleaded guilty after committal and also assisted the prosecution by testifying against a co-accused.  Taking this assistance into account, as well as other mitigating factors that had been advanced on the applicant’s behalf, the judge decided to “temper justice with mercy and err on the side of caution”[6] and awarded the applicant a 50% discount of this starting point. By this route the judge reached a final sentence of 7 years and 1 months’ imprisonment.

The applicant’s grounds of appeal in his renewed application for leave to appeal

16.  In his written submission filed on 3 April 2020, the applicant again asserted that he is entitled to a sentence reduction greater than the 50% given by the judge because of the risk of harm to himself and his family as a result of having testified against D2.  The applicant repeated his claim that D2, through two prison inmates, had conveyed threats to kill him and harm his family in Sri Lanka.

17.  The applicant also referred to his two letters dated 26 October 2016 and 28 November 2016, and two replies of the prosecution dated 2 and 19 December 2016, and submitted that he had indicated he would assist the authorities well before his committal hearing and the listing hearing and the letters might be helpful to the court in deciding the first indication of his guilty plea.  The thrust of this submission was that he in fact intended to plead guilty at an early stage of the proceedings and his formal offer was only delayed because it took so long for Customs Officers to come and take a non-prejudicial statement from him.

18.  At the hearing of his renewed application for leave to appeal he clarified that he was no longer asking to be classified as a “supergrass”, but was seeking a further reduction of his sentence on the same bases as set out in his written submissions.  He claimed that he never spoke to a lawyer before his committal hearing and did not receive any legal assistance from the lawyer employed by the Director of Legal Aid at his committal hearing.  He reiterated his claim that he had received, through others, threatening messages from D2.  

The respondent’s application to adduce fresh evidence

19.  In advance of the hearing, Mr Ivan Cheung, for the respondent, filed an application pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221, for the Court to receive the affirmation of Mr Kwan Chun Yin, an Inspector of the C & E Department, deposing to events that took place after his Department received the applicant’s letter dated 24 October 2016. This affirmation exhibited communications with the applicant and his then legal representatives on various dates between 9 December 2016 and 23 March 2017, and 3 non-prejudicial statements of the applicant dated 30 March 2017, 8 December 2017 and 11 December 2017.

20.  What Mr Kwan had to say and the contents of the exhibited documents went to the issue of when the applicant first indicated his intention to plead guilty.

21.  Given the relevance of these documents to the applicant’s submissions and given that they provide a complete picture of the communications the applicant had with the authorities, we received the respondent’s evidence for the purpose of determining the application for leave to appeal. 

The respondent’s submissions

22.  Mr Cheung referred to the Court of Appeal judgment in HKSAR v Cheung Chi Yuen[7] on the issue of whether the applicant should be treated as a “supergrass” or receive a sentencing discount beyond 50%. Mr Cheung submitted that the applicant’s fear for his personal safety and the safety of his family in Sri Lanka was not supported by concrete evidence and there was insufficient basis to justify awarding the applicant a discount greater than the 50% he had already been given.

23.  In respect of the applicant’s offer to plead guilty, Mr Cheung submitted that this did not happen until 6 December 2017 and if that is accepted the discount for his plea should have been only between 20 – 25%.

Discussion

24.  The offence took place on 29 August 2016 and the applicant was committed for trial on 20 February 2017. It is clear that the applicant first communicated with the C & E Department by a letter dated 24 October 2016. However, that letter, contrary to the applicant’s assertion, does not reveal any intention by the applicant to plead guilty. It contains merely a request that Customs Officers visit him “to talk more details in relation to this case.” As the applicant was by then legally represented the C & E Department, quite properly, contacted his solicitors. Despite numerous efforts to obtain a response from them, it was not until 23 March 2017 that the firm replied, informing the C & E Department that it no longer represented the applicant.

25.  Clearly, no fault can be laid at the feet of the C & E Department. If there is fault it will be found elsewhere. Whether there was a failure by the firm of solicitors to properly represent the applicant’s interests we cannot say, but on the material filed by the respondent it appears that from November 2016 to March 2017, five letters of the C & E Department were ignored. This is something which the Director of Legal Aid may wish to investigate.

26.  The applicant’s first non-prejudicial statement dated 30 March 2017 does not contain any admission by the applicant that he knew the parcel that he was collecting contained cocaine or any statement by him that could be construed as an offer to plead guilty. Indeed quite the contrary. The applicant advanced an exculpatory explanation in this document, asserting that he was threatened and pressured into collecting the parcel. When asked to provide more details on the threats and pressure he replied:

“I would like to provide this detail only after seeking advice from my lawyer. I was powerless at that time.”

27.  It is clear to us that between the date of the applicant’s arrest and the date of his committal there was no hint of any indication, let alone a clear and unequivocal indication, from the applicant that he wished to plead guilty. He did not plead guilty at committal and no offer to plead guilty is contained in his letters or his first non-prejudicial statement of 30 March 2017. The judge was led into error by Mr McGuinniety in thinking otherwise. We are satisfied that the formal indication of a plea of guilty did not take place until 6 December 2017, effectively only one month before the trial was due to take place on 8 January 2018.

28.  The relevance of all of this is that the applicant was not entitled to a one-third discount for his guilty plea but only to a discount of between 20 – 25%. The 50% discount he received included a full one third discount for a “timely” plea of guilty, when his plea was properly to be regarded as late. Consequently, he has received from the judge a windfall discount of at least 8.3%, and perhaps more. As this court has recently emphasised[8], the discount for the plea of guilty is intended to reflect the utilitarian value of the plea and the later it is offered the less utilitarian value it will have.

29.  In the circumstances we have outlined the judge, had he been correctly apprised of when the applicant first offered a plea of guilty, would have been entitled to award a discount less than 25% and closer to 20%.

30.  It is against this backdrop that the applicant’s claim to a further discount for his assistance to the authorities falls to be considered.

31.  He claimed that threats have been made against him but they were not communicated to him directly by D2 but indirectly through others and there has been no attempt to carry them out. As to his family, there is no evidence of any actual intimidation of them or any attempt to interfere with them. Nor is there any evidence independent of the applicant to support what he asserts and the threats that he has mentioned are all of a vague and general nature.

32.  Accepting the applicant’s case at its very highest he is a cooperating accomplice who, having given evidence for the prosecution, has received threats that revenge will be taken against him by the person against whom he testified. We recognise that such a person may, and only may, qualify for a discount in excess of 50% for, as this court said in HKSAR v Cheung Chi Yuen[9] at [29] and [32]:

“29. There is clearly a range between a 50% discount and a two-thirds discount into which cooperating defendants may fall. It may well be that the closer they are to the end of the range, the more likely they are to be categorized as a supergrass, and the closer they are to the beginning of the range, the less likely they are to be so categorised. But what is important is not the label they are given but how their assistance and personal circumstances are evaluated by the sentencing court.

…

32.  Ultimately, the task of the sentencing court is to make a value judgment of the assistance rendered and an assessment of the risks to which the defendant and those close to him have been, and may continue to be, exposed.  This evaluation is made in the context of the policy of our courts of encouraging offenders to assist Hong Kong’s law enforcement agencies in performing their role of detecting, investigating and preventing crime and rewarding an offender when such assistance is forthcoming.”

33.  On the basis of what was before us we assessed the risk of harm coming to the applicant and his family as not being sufficiently clear and likely so as to entitle him to any further discount of his sentence. However, we note that in the present case, the question of whether the threats to the applicant could elevate his discount beyond 50% is somewhat academic. For even if the applicant persuaded us to award him a further discount it could not possibly be greater than the windfall he received when he was awarded a full one-third discount for his plea of guilty.

Disposition

34.  For these reasons we refused the application and dismissed the appeal.