HKSAR v. MOHAMMED TOFAEL AHMED

CACC 306/2018

[2019] HKCA 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 306 OF 2018

(ON APPEAL FROM DCCC 237/2018)

------------------------

------------------------

__________________________

REASONS FOR JUDGMENT

__________________________

1.  The applicant was convicted on his own plea before District Judge Dufton (“the judge”) of four counts of “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 24 September 2018, the judge sentenced the applicant to a total term of 3 years and 8 months’ imprisonment.

2.  The applicant subsequently filed a Notice of Application for Leave to Appeal (Form XI) against his sentence.

3.  At the hearing of the application I granted the applicant leave and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The Summary of Facts

4.  The Summary of Facts which the applicant admitted for the purpose of his sentencing revealed that on three occasions he sold dangerous drugs to police undercover officers conducting controlled purchases. The three occasions were:

(i)  at about 8:59 pm on 2 December 2017, outside Nos 1A–1B, Mody Road, Tsim Sha Tsui when a police officer, PW1, paid the applicant HK$1,200 for the purchase of a bag of powder containing 0.48 gramme of cocaine (Charge 1);

(ii)   at about 9:49 pm on 2 December 2017, near the junction of Nathan Road and Mody Road, a police officer, PW2 paid the applicant HK$1,500 for a bag of powder containing 0.52 gramme of cocaine (Charge 2); and

(iii)   at about 6:15 pm on 10 December 2017, at the 1^st floor staircase of Mirador Mansion, Tsim Sha Tsui, PW2 paid the applicant HK$1,500 for a bag of powder containing 0.46 gramme of cocaine (Charge 3).

After the third sale, at about 6:20 pm on 10 December 2017, the applicant was arrested and when he was searched the police found on his person two bags of drugs containing 0.83 gramme of cocaine (Charge 4).  

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

The mitigation

6.  The applicant is a Form 8 holder from Bangladesh and he has been in Hong Kong for almost 6 years. He has previous convictions in Hong Kong but they are not drug-related. The applicant’s counsel at trial, Mr Duncan Percy, submitted on his behalf that he wished to go home as soon as possible because his mother had passed away and he had to take care of his ill father.

7.  Mr Percy asked the judge to take into account the fact that the total amount of cocaine involved was only 2.29 grammes which was a small amount. He accepted that the suitable starting point for each charge would be between 2 and 5 years and urged the judge to adopt the lowest starting point. He also acknowledged that the starting point would have to be enhanced in order to allow for the aggravating feature of the applicant being a Form 8 holder. He asked the judge to enhance the starting point by only a small amount.

The judge’s Reasons for Sentence

8.  In determining the appropriate sentence, the judge directed himself in accordance with the Court of Appeal’s judgments in AG v Pedro Nel Rojas[1]and R v Lau Tak Ming & Another[2]. Applying the sentencing guideline he adopted an initial starting point of 2 years’ imprisonment for each of Charges 1-3 and 2 years and 3 months’ imprisonment for Charge 4.

9.  In considering the aggravating feature of the applicant being a Form 8 holder at the time of the offence the judge directed himself in accordance with the Court of Appeal’s judgments in HKSAR v Ali Saif [3]and enhanced the starting point of each charge by 6 months.

10.  The final starting points of 2 years 6 months, for Charges 1-3 and 2 years 9 months, for Charge 4, were then discounted by one-third to allow for the applicant’s guilty pleas. By this route he arrived at the sentence of 20 months’ imprisonment for Charges 1-3 each and 22 months’ imprisonment for Charge 4. 

11.  The judge then moved on to consider the issue of totality. He directed himself in accordance with HKSAR v Muhammad Riaz Awan[4] and found that a deterrent sentence was required in the present case as there was repeated commercial trafficking by the applicant in an area where local residents and tourists often gathered. He concluded that a total sentence of 3 years and 8 months’ imprisonment would properly reflect the culpability of the applicant.   

12.  The judge, thereupon, imposed the following sentences on the applicant:

  Charge 1 – 1 year and 8 months’ imprisonment;

  Charge 2 – 1 year and 8 months’ imprisonment with 8 months consecutive and 12 months concurrent to Charge 1;

  Charge 3 – 1 year and 8 months’ imprisonment with 8 months consecutive and 12 months concurrent to Charges 1 and 2; and

  Charge 4 – 1 year and 10 months’ imprisonment with 8 months consecutive and 14 months concurrent to Charges 1, 2 and 3.

With these orders for consecutiveness, the total sentence became 3 years and 8 months’ imprisonment.

The applicant’s grounds of appeal

13.  Mr James Sherry, counsel for the applicant, relied on only one ground of appeal consisting of two complaints. Firstly, he said that the sentence for Charge 2 should have been made wholly concurrent with the sentence for Charge 1 as both offences arose out of largely the same factual background with a close proximity in both area and timing. For the same reason he said that the sentence for Charge 4 should have been ordered to be served wholly concurrently with Charge 3. Secondly, he said that only two months of the sentence for Charge 4 should have been made consecutive to the sentence for Charge 1. 

14.  Mr Sherry confirmed that he took no issue with the starting points nor the enhancement of 6 months on each charge for the fact that the applicant was a Form 8 holder at the time of the offences. His complaint was that the judge erroneously applied the totality principle in sentencing the applicant.

15.  Mr Sherry submitted that given the small amounts of cocaine involved in each charge, the totality of sentence should have been achieved by ordering that only 8 months of the sentence for Charge 3 should be served consecutively to the sentences for Charges 1 and 2 and only 2 months of the sentence for Charge 4 should be served consecutively to the sentences for Charges 1 and 3.

16.  However, in the course of the hearing Mr Sherry varied his argument somewhat in respect of Charges 3 and 4. For these two charges he prayed-in-aid, in support of his one-transaction argument, the comment by Yeung VP in HKSAR v Nurofi’ah[5]. At paragraphs 8-10 of that judgment Yeung VP commented on case authorities which established that in certain circumstances drugs particularised in different charges should be combined for sentencing purposes:

“8. Mr Ma emphasized 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.”

17.  Mr Sherry submitted that had Charges 3 and 4 been combined into a single charge of trafficking in 1.29 grammes of cocaine, an arithmetic calculation would derive a starting of 29 months’ imprisonment. After enhancement and full one-third discount was given, the sentence would have been 23 months’ imprisonment. If 8 months in the second combined charge was made consecutive to the first combined charge, the final sentence would be 2 years and 6 months. He argued that this would reflect the reality of what took place in Charges 3 and 4. He submitted that there was no need for the offence that is Charge 3 to have been procured by the undercover officer. If, instead of engaging in a transaction with the applicant, the police had immediately arrested him then they would have found all the drugs on his person and only one charge would have resulted.

The respondent’s reply

18.  Ms Jasmine Ching, for the respondent, submitted that in sentencing a defendant convicted of multiple offences, what matters most is whether the ultimate total sentence is manifestly excessive. She relied on the judgment of this court in HKSAR v Kwok Shiu To[6] where it was said that “the question of totality is paramount and it perhaps matters less by which method that is achieved than that the total sentence be appropriate to the overall criminality”[7].

19.  Ms Ching also relied on the Court of Appeal’s judgment in HKSAR v Ngai Yiu Ching[8] on the question of how a court should assess the overall criminality of a person convicted of multiple offences. Her position in respect of Charges 1, 2 and 3 was that they were separate and distinct offences, properly charged as such, with the second adding to the culpability of the first. She accepted in respect of Charges 3 and 4 that it was reasonably arguable these two offences came within the principle referred to by Yeung VP in Nurofi’ah.

20.  Nevertheless, Ms Ching argued that the closeness in time of each offence was also an aggravating factor. She submitted that it was clear that the applicant stationed himself in the area of Mody Road for convenient dissemination of his dangerous drug. Given that his repeated offending was within a short period of time there was a room for upward adjustment of the 6-month enhancement imposed by the judge. A total sentence of 2 years and 6 months, as sought, by the applicant, was too lenient and was manifestly inadequate to reflect his criminality.

Discussion

21.  As Ms Ching, for the respondent, pointed out, the proper approach for a court to take when sentencing for multiple offences is as set out by Stock VP in his judgment in Ngai Yiu Ching where he said that the “one transaction rule” is no more than a practical working rule to guard against the risk of punishing the accused twice for the same act in a case concerning multiple offences. The overriding consideration in sentencing a case like the present one must be whether the sentence was adequate to reflect the true culpability of the applicant.

22.  Applying those principles to the present case the “one transaction” rule would not avail the applicant in respect of Charges 1, 2 and 3 as they involved three distinct transactions with two different buyers and for Charge 3 some 8 days after Charges 1 and 2. Hence, there was no basis to say that Charges 1, 2 and 3 arose out of the same transaction. As Stock VP observed in Ngai Yiu Ching, the real point “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”[9]. The only issue is how to approach the sentencing for Charge 4. Charge 4 related to a seizure from the applicant of two unsold packets of cocaine on his arrest shortly after the transaction that is the subject of Charge 3 was concluded.

23.  Mr Sherry relied heavily on the fact that the close proximity in area and time in respect of Charges 3 and 4 as support for his argument that the sentence passed for Charge 3 should be served concurrently with all other charges and regard should be had to the quantity of narcotic in Charge 3 when sentencing for Charge 4.

24.  As the Summary of Facts revealed, the circumstances surrounding Charge 4 allowed of the inference that the applicant was trafficking in cocaine at the time he was arrested. Charge 3 was just an example of his on-going trafficking activities and no doubt had he not been arrested he would have committed other acts of trafficking this cocaine to his customers. The applicant’s offending in Charge 4 was within a very short period of time of Charge 3 and the inference likely to be drawn is that the drugs he sold in Charge 3 and the drugs he had in his possession that are the subject of Charge 4 all came from a common stock.

25.  I am of the view that it is reasonably arguable that the principle referred to by Yeung VP in Nurofi’ah should have been applied to Charges 3 and 4. This would have the consequence that the sentence for Charge 3 should be ordered to be served concurrently with the sentences for the other charges and the judge should have, when deciding how much of the sentence he was imposing on Charge 4 should be made consecutive to the other sentences, taken into account the cocaine that is the subject of Charge 3. As Mr Sherry pointed out this would be a total amount of 1.29 grammes of narcotic for which a starting point of 29 months’ imprisonment, reduced to 23 months for the applicant’s plea of guilty, would be the appropriate sentence.

26.  Significantly 23 months is only 1 month more than the sentence of 22 months that the judge imposed for Charge 4. However, because the drugs were split into two charges the judge made orders of consecutiveness in respect of the sentences for both charges, resulting in a total of 16 months’ imprisonment for them. Effectively, Mr Sherry’s argument becomes if 8 months of consecutiveness is appropriate for a sentence of 22 months’ imprisonment, then 16 months is excessive for a sentence of 23 months’ imprisonment. In my view it is for the Court of Appeal to apply the totality principle in order to determine how much of the 23 months should be ordered to be served cumulatively to the sentences imposed on the other charges and to decide whether the total sentence of the applicant should be less than the sentence imposed on the judge.      

Disposition

27.  For these reasons I granted the applicant leave to appeal his sentence on the limited basis set out in this judgment.

[1] [1994] 2 HKCLR 69

[2] [1990] 2 HKLR 370

[3] [2018] 6 HKC 19, [2018] HKCA 358.

[4] CACC135/2010, unreported, 3 December 2010.

[5] CACC 260/2011, unreported, 27 July 2012 – English translation.

[6] [2006] 2 HKLRD 272

[7] Ibid, at 275H.

[8] [2011] 5 HKLRD 690

[9] Ibid, at 699, paragraph 21.