HKSAR v. AHMED KAMRAN

CACC 325/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 325 OF 2013

(ON APPEAL FROM HCCC NO 4 OF 2013)

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J U D G M E N T

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Hon Poon J (giving Judgment of the Court) :

INTRODUCTION

1.  The applicant, a national of Pakistan, was charged with :

(1) Unlawful trafficking in 2,081.78 grammes of heroin hydrochloride and traces of diazepam on 25 April 2012, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (“Count 1”);

(2) Having in his custody or possession a Hong Kong Identity Card relating to another person, namely Arafat Yaser, on 10 July 2012 without lawful authority or reasonable excuse, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 (“Count 2”); and

(3) Having in his possession two unlawfully obtained travel documents, namely two Pakistani passports, both in the name of Arafat Yaser Chaudhry on 10 July 2012, contrary to section 42(2)(c)(i) and punishable under section 42(4) of the Immigration Ordinance, Cap 115 (“Count 3”).

2.  Following his plea of guilty to all the 3 Counts, the applicant was on 2 August 2013 sentenced by Line J to a total of 19 years’ imprisonment.

3.  By Form XI dated 9 September 2013, the applicant seeks leave to appeal against sentence out of time.

FACTS

4.  At around 2.15 am on 25 April 2012, the applicant and his girl friend Lei Lijuan (“Lei”) arrived at Hong Kong International Airport from Pakistan.  Upon examination of a red suitcase carried by Lei, customs officers found three large plastic bags containing a total of 275 pieces of batteries which were subsequently found to have contained the dangerous drugs, the subject matter of Count 1.  Lei said it was the applicant who asked her to collect the suitcase and he was waiting for a ferry for the Mainland in the Transfer Area at the Airport.  The applicant was then arrested.  He was in possession of another suitcase which belonged to Lei.  The red suitcase was in fact owned and possessed by the applicant.  His fingerprints were found on the sticky sides of the adhesive tapes attached to the plastic bags containing the batteries and to the plastic wrappings which wrapped the dangerous drugs.  The estimated street value of the dangerous drugs was HK$3.6 million.

5.  Whilst on bail for the offence of Count 1, the applicant attempted to leave Hong Kong via Lo Wu Checkpoint on 10 July 2012. The immigration officer at the Shenzhen Boarder found him suspicious and handed him over to the Hong Kong Immigration.  The applicant was found in possession of the items particularized in Counts 2 and 3.  Under caution, he admitted that he unlawfully obtained the items for HK$5,000.00.  He arranged with another Pakistani male to hide himself inside a large suitcase in a toilet near Lo Wu train station platform at 2000 hours on 10 July 2012.  About 10 to 15 minutes later, he was released from the suitcase.  He then presented the Pakistani passports for arrival clearance in Shenzhen.  He was refused permission to land and handed over to the Hong Kong authorities.

REASONS FOR SENTENCE

Count 1

6.  In sentencing the applicant on Count 1, the Judge said that it was a serious case in that the applicant organized this drug trafficking activity and exploited someone else to do it so as to reduce his own risks.  The Judge gave the applicant a one-third discount upon his plea of guilty although he had attempted to flee out of jurisdiction.  The Judge referred to the sentencing guideline articulated in HKSAR v Abdallah [2009] 2 HKLRD 437.  He noted that the amount of heroin hydrochloride in which the applicant had trafficked unlawfully fell in the range of 1,200 to 4,000 grammes in respect of which the applicable band of sentence was 23 to 26 years’ imprisonment.  He took into account the fact that the applicant was not just a courier and he had exploited Lei.  He adopted a starting point of 25 years’ imprisonment.  He then reduced it by one-third to 16 years and 8 months’ imprisonment.

7.  The Judge next enhanced the sentence by two years’ imprisonment to reflect the aggravating factor for the international element, that is, importation of the dangerous drugs into Hong Kong.  He also gave a one-third discount for the 2-year enhancement which resulted in 1 year and 4 months’ imprisonment.  He added it to the 16 years and 8 months’ imprisonment, thus making a total of 18 years’ imprisonment for Count 1.

Counts 2 and 3

8.  The Judge noted that the HKID card and the two Pakistani passports were obtained to facilitate the applicant’s escape from the jurisdiction in order to avoid his proper punishment, and this was an aggravating factor for sentence.  He therefore adopted a starting point of 3 years for each of Counts 2 and 3 and reduced it by one-third to 2 years’ imprisonment.

Total sentence

9.  Applying the totality principle, the Judge ordered that the sentences for Counts 2 and 3 were to run concurrently with each other, but one year of which was to run consecutively to that of Count 1.

10.  In the result, the Judge sentenced the applicant to a total term of 19 years’ imprisonment.

GROUNDS OF APPEAL AGAINST SENTENCE OUT OF TIME

11.  On 9 September 2013, the applicant filed the present application with the court, which means that his application is 10 days out of time.

Reasons for delay

12.  The applicant indicated that he sought legal aid and an extension of time in which to give notice of application.  In an affirmation filed together with Form XI, he explained his delay in making the application on the basis that firstly, he had requested for the form within time on 27 August 2013; secondly, he had suffered from anxiety upon hearing that he was to serve a long sentence; and thirdly, his English was not good and there was no one to translate the relevant requirement for him in Urdu language.

Grounds of appeal

13.  Having been refused legal aid on 30 October 2013, the applicant now acts in person.  On 28 May 2014, the applicant filed an affirmation attaching to it a document entitled “Perfected Grounds of Appeal”. At the hearing on 8 July 2014, the applicant made further submissions to supplement what he has already stated in writing.

14.  In sum, the applicant relied on three grounds of appeal :

(1) He had not been afforded an opportunity to mitigate in particular, that he had a clear record and that he had previous community work (“Ground 1”);

(2) The sentence imposed on Count 1 was more severe than that in another case, the defendant of which was convicted after trial and sentenced to 24 years’ imprisonment for unlawful trafficking in 8kg of dangerous drug (“Ground 2”); and

(3) The sentence was manifestly excessive in all the circumstances (“Ground 3”).

DISCUSSION

15.  The principles governing an application for leave to appeal against sentence out of time are well settled.  In brief, the court will take into account the length of the delay, the reasons for the delay and generally the bona fides of the application for extension of time. The court will also consider the grounds of the proposed appeal to see if, by refusing leave to appeal, the court would not shut out a substantial and plainly arguable appeal.  Substantial grounds must be shown for the delay before the court would grant indulgence.  The longer the delay, the more onerous is the duty on the applicant.  See HKSAR v Medina & Another, CACC 296/2007, unreported, 31 January 2012, at §12; referred to in HKSAR v Gu Guolin, CACC 25/2012, unreported, 13 June 2014.

16.  We propose to first deal with the merits of the appeal, which is determinative of the application.

Ground 1

17.  Before the Judge, the applicant was represented by counsel Mr Yeung Shak-nung assigned by Director of Legal Aid.  We note from the transcript that Mr Yeung had advanced full mitigation for the applicant.  What could be said for the applicant had been said.  We do not think the applicant had been deprived of a chance to mitigate.

Ground 2

18.  In support of Ground 2, the applicant relied on HKSAR v Tang Wai Man and others, HCCC 268/2008.  In that case, the defendant was jointly charged with another for unlawful trafficking in 8.05kg of pure cocaine.  He received a sentence of 25 years’ imprisonment on 2 March 2009.

19.  However, on 12 March 2009, 10 days after judgment was given in HCCC 268/2008, this Court, differently constituted, delivered the judgment in Abdallah, supra, which provides sentencing guideline for trafficking in very large quantity of heroin and cocaine.  The Judge was entirely correct in adopting the sentencing guideline in Abdallah, which is applicable in the present case.

20.  Mr Li, for the respondent, fairly drew our attention to a possible argument that by applying the Abdallah guideline on an arithmetic approach, trafficking in 2kg of heroin would attract a starting point of 24 years’ imprisonment.  Thus, it could be arguable that the Judge had adopted too high a starting point for Count 1.  However, we accept Mr Li’s submission that as rightly noted by the Judge, the applicant was not only an organizer of the drug trafficking but also he had exploited Lei in committing the offence.  We are satisfied that the Judge was entitled to adopt 25 years as the starting point.

Ground 3

21.  In our view, the Judge was entitled to order part of the concurrent sentences imposed for Counts 2 and 3, which were separate and distinct offences committed on another date and whilst he was on bail, to run consecutively to the sentence for Count 1.

22.  We do not think the total sentence of 19 years’ imprisonment offends the totality principle or is otherwise manifestly excessive.

OTHER POINTS RAISED BY THE APPLICANT

23.  The applicant asserted that he was willing to assist the authority in providing information relating to a Mr Pasha, the person who allegedly instructed him to commit Count 1 and other people involved in the offence.  But up to date, the applicant has not delivered any such assistance. It is trite that a mere promise to assist did not warrant a reduction of sentence : HKSAR v Xu Yong Biao, CACC 404/2000, unreported, 15 June 2001.

24.  At the hearing on 9 July 2014, the applicant told this Court that he had provided assistance to the police in connection with some other offences.  We then adjourned the matter for the respondent to take further instructions.  After some enquiries with the police and the counsel who represented the applicant in the court below, the respondent now confirms that two officers of the Criminal Intelligence Bureau interviewed the applicant while he was in custody on 21 January and 24 February 2014.  During the interviews, the applicant provided information.  However, such information proved to be lacking in substance and did not lead to any fruitful result, which means that the information that the applicant provided to the police was useless.  In the circumstances, clearly he is not entitled to any reduction of sentence on this ground.

CONCLUSION

25.  For the above reasons, there are no merits in any of the proposed grounds of appeal.  We therefore dismiss the application for leave to appeal against sentence out of time.