HKSAR v. KHAN SADAM BILAND

CACC 53 /2021, [2023] HKCA 1056

On Appeal From [2019] HKCFI 1714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 53 OF 2021

(ON APPEAL FROM HCCC NO 176 OF 2016)

________________________

________________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The appellant, who was D2 on the original indictment, was jointly charged together with Ahmed Shamir (“D1”) on one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 11 August 2017, he pleaded guilty to the offence in the High Court before Campbell-Moffat J (“the judge”); and, on 30 May 2019, he was sentenced to 17 years’ imprisonment.

2.  The appellant applied for leave to appeal against his sentence out of time on the sole ground that he has rendered assistance to the authorities.  On 26 July 2023, the Single Judge granted the appellant leave to appeal out of time^[1], on the basis that it was reasonably arguable that he should receive a further discount for his assistance to the authorities, in particular by giving evidence against two co-accused who were duly convicted upon his evidence.

3.  On 4 September 2023, we reduced the appellant’s sentence to 12 years and 9 months’ imprisonment and said we would hand down the reasons for our decision in due course.  These are our reasons.

The facts

4.  On 26 June 2015, an incoming Federal Express (“FedEx”) parcel from Venezuela was singled out for inspection by a Customs and Excise officer at the Customs Examination Hall of Hong Kong International Airport.  The parcel was consigned to one “Khan Sam” at an address in Yau Ma Tei, Kowloon and was declared to contain a “Submersible pump (Sample)”.  Upon examination, the parcel was found to consist of 6 packets of plastic wrapping, which were subsequently confirmed to contain 1.95 kilogrammes of a powder containing 1.47 kilogrammes of cocaine.  The street value of the cocaine at the time was estimated to be HK$2,041,650.

5.  On 29 June 2015, Customs officers conducted a controlled delivery operation.  In the afternoon on that day, D1 approached a Customs officer posing as FedEx staff to collect the parcel and was duly arrested.  With information provided by D1, Customs officers arrested the appellant in the evening of the same day inside a room at the Langham Place Hotel in Mong Kok. Also in the hotel room were 698.03 grammes of a solid containing 630.93 grammes of cocaine narcotic.

6.  When interviewed and under caution, the appellant initially denied any knowledge of any dangerous drug in the parcel.  However, he was subsequently to admit responsibility for trafficking in the cocaine in the parcel.

Plea bargain and subsequent events

7.  There were two counts of trafficking in a dangerous drug on the original indictment.  Count 1 concerned the dangerous drugs in the parcel from Venezuela and alleged that, on 29 June 2015, the appellant jointly trafficked with D1 in the 1.47 kilogrammes of cocaine narcotic contained in that parcel.  Count 2 averred that, on 29 June 2015, the appellant trafficked in the 630.93 grammes of cocaine in the room in the Langham Place Hotel, Mong Kok.

8.  On 22 December 2016, the appellant gave his first of some seven non-prejudicial statements to Customs officers^[2].

9.  Following a successful negotiation with the prosecution in relation to his pleas, the appellant agreed to plead guilty to Count 1, whereupon Count 2 would not be pursued.  Accordingly, on 11 August 2017, the appellant pleaded guilty to Count 1 and the judge ordered Count 2 to remain on the court file marked not to be proceeded with without the leave of the court.  Meanwhile, D1 pleaded not guilty to Count 1 and stood trial before the judge sitting with a jury.  The appellant was not called to give evidence, although we are told he was willing to do so^[3]. On 8 June 2018, D1 was acquitted of the charge relating to the parcel.

10.  The appellant then gave three further non-prejudicial statements.  As a result of these statements, D1 was re-arrested on 8 November 2019 and one Lai Hiu-tung Maggie (“Lai”) was arrested on 23 March 2018.  In fact, she was re-arrested, for she had originally been arrested in respect of the drugs in Count 2 on 20 July 2015^[4]. The appellant subsequently provided three more non-prejudicial statements in 2018 and 2019.

11.  In December 2020, the cases against D1 and Lai were consolidated, in which the appellant, D1 and Lai were charged with one count of conspiracy to manufacture a dangerous drug and, alternatively, one count of trafficking in a dangerous drug^[5]. D1 and Lai pleaded not guilty and were tried in the High Court before a jury in April 2023.  The appellant gave evidence against them under immunity.  He testified that he and D1 purchased one kilogramme of cocaine from a Colombian man and intended to sell it as crack cocaine in order to enhance their profit margin.  Since neither the appellant nor D1 knew how to “cook” the cocaine, the appellant recruited Lai for this purpose.  In the room of another hotel, Lai made crack cocaine with D1’s assistance and packaged it into small packets.  D1 and the appellant then took the finished product to the hotel room in the Langham Place Hotel (the subject matter of Count 2 in the present case, which had been left on the file marked not to be proceeded with)^[6].  On 20 April 2023, D1 and Lai were convicted of manufacturing of a dangerous drug and each sentenced to 18 years and 11 months’ imprisonment.

Mitigation

12.  On 30 May 2019, following the trial of D1, the judge heard mitigation from counsel.  The appellant was 25 years of age at the time of offence with numerous criminal convictions, one of which was possession of a dangerous drug for which he had been sentenced to imprisonment for 12 months in 2010.  The judge stated that she would not take into account the appellant’s extensive criminal record.

13.  When the judge queried the appellant’s status in Hong Kong, it was submitted on his behalf that the appellant was born in Pakistan to a father who was a Hong Kong permanent resident; however, when his dependant visa expired, he applied for refugee status and became a Form 8 recognizance holder in order to be able to stay in Hong Kong.  He subsequently withdrew his non-refoulement claim, whilst on remand for the present offence.  On this basis, and despite acknowledging that there was nothing to stop the appellant renewing his non-refoulement claim when he was approaching the end of his sentence, the judge decided not to enhance the sentence in respect of his status at the time of the commission of the offence^[7].

14.  The judge addressed the aggravating factors of importation, as well as the appellant’s recruitment role as disclosed in the evidence at trial, which the judge considered to be “higher in the scheme” than the role of D1^[8].

The sentence

15.  Referring to HKSAR v Abdallah^[9], the judge identified the arithmetical starting point for trafficking in a quantity of 1.47 kilogrammes of cocaine narcotic as 23 years and 3 months’ imprisonment.  She then enhanced the sentence by 2 years’ imprisonment because the appellant was part of a group which had brought the drug into Hong Kong from abroad, resulting in 25 years and 3 months’ imprisonment.  She also took the view that the appellant had recruited D1 and should, therefore, be viewed as further up the hierarchy of the drugs syndicate.  For that reason, the judge enhanced the sentence by 6 months, bringing the notional sentence after trial to 25 years and 9 months’ imprisonment.  The judge then decided to reduce the notional sentence after trial by 3 months for the appellant’s participation in Father Wotherspoon’s campaign. 

16.  Turning to the appropriate discount for plea and mitigation, the judge noted that although the appellant had pleaded guilty after the committal stage, the proceedings had commenced before the decision in HKSAR v Ngo Van Nam^[10] was handed down; accordingly, she gave the appellant a full one-third discount for his plea.  The ultimate sentence thus became 17 years’ imprisonment.

The ground of appeal

17.  Mr John Marray, on behalf of the appellant, has submitted that an additional discount should be accorded to the appellant for providing 7 non-prejudicial statements and giving truthful evidence against D1 and Lai at their trial, which was both practical and substantial assistance.  Although, initially at the leave stage, he had argued that the appellant fell within the category of “supergrass” as described in HKSAR v Cheung Chi Yuen[11],since it was contended that his substantial assistance in a crime of great gravity had placed him and his family at risk of revenge from D1, who had family ties in Pakistan and Hong Kong, he subsequently (and, we think, correctly) drew back from that characterisation.  Nevertheless, he urged the Court to make a judgment as to the assistance rendered and an assessment of the risk to which the appellant and those close to him have been, or may continue to be, exposed; and consider a discount of sentence greater than 50%.

The respondent’s submissions

18.  Mr Michael Tsang, for the respondent, did not object to the appellant being given a reduction in his sentence for his useful assistance to the authorities in giving information and evidence but submitted that any discount should not exceed a 50% discount (including the one-third discount for his guilty plea).

19.  He relied on HKSAR v Chan Sik-wai and another[12] for the propositions that a “supergrass” is a very unusual kind of offender, who not only gives evidence against others who have been arrested as accomplices to the crime(s) with which he has been charged, but also provides evidence against others on further serious crimes to which he has usually been a party himself; and that those who merely “grass” on their co-accused in the same offence, but who also put themselves at risk, are seldom given a discount of more than 50%^[13].

20.  As to the appellant and his family being at risk of harm because of his assistance to authorities, Mr Tsang submitted that there was no concrete evidence that threats had actually been made against, or that harm had been inflicted (or attempted) upon, the appellant or his family as a result of his testifying against his accomplices.  He referred to the decision of this Court in HKSAR v Mohamed Hussain Mohamed Imran^[14], which held that a cooperating accomplice, whose allegations of threats of revenge or intimidation were vague and of a general nature, was unlikely to be given more than 50% discount.

Discussion

21.  No issue is taken at this appeal with the judge’s notional starting point after trial or with the discounts she gave for the appellant’s plea and other matters of mitigation.  The appellant was committed for trial to the High Court on 15 April 2016.  The new approach to discounts for pleas of guilty set out in Ngo Van Nam was not established until 2 September 2016, some months later.  The appellant gave his first non-prejudicial statement on 22 December 2016 and, as the judge accepted, he had indicated that he intended to plead guilty “much earlier” than the day on which he in fact pleaded guilty, which was 11 August 2017[15]. In these circumstances, we would not disagree with the judge’s grant of a one-third discount for the post-committal plea of guilty.

22.  Nor shall we interfere with the giving of a discount of 3 months for contributing to Father Wotherspoon’s campaign. However, it should be noted that the appellant’s “contribution” amounted to a single letter being placed on a website, for which we regard the discount as very generous in the circumstances.  Moreover, the discount for this factor ought to have been considered at the same time as the overall assessment of discount for the plea and other mitigating factors, and not as something which went to identify the starting point: see HKSAR v Herry Jane Yusuph[16], at [77]‑[78].  Applying the discount at the mitigation stage is also more advantageous to the defendant, as explained earlier in Herry Jane Yusuph, at [15].  Nevertheless, given our view as to the generosity of the reduction for this factor, we shall leave it as part of the notional sentence after trial in this particular case, rather than as something to be reduced further by way of mitigation.

23.  We are also concerned that the judge appears to have been too ready to disregard the fact that at the time of the commission of this offence, the appellant was a Form 8 recognizance holder.  Since she was informed that he had apparently withdrawn his non-refoulement claim in October 2017, whilst on remand for the present offence, the judge decided not to enhance his sentence for this factor.  Yet, with respect, that did not diminish the fact that when this extremely serious offence was committed, with such appalling consequences for society and the people of Hong Kong, the appellant was a Form 8 recognizance holder.  It was the appellant’s status at the time of the offence that was relevant and it was not something that could be evaded or ignored by the subsequent abandonment of his non-refoulement claim.  Nor does his withdrawal prevent the appellant, as the judge herself acknowledged, from resurrecting his non-refoulement claim as he approaches the end of his sentence.  Non-refoulement claims are not a game or device to be abandoned at whim, in the hope that the courts will be deflected from enhancing sentences for serious crimes. 

24.  However, in view of the 2½-year enhancement of an otherwise very lengthy sentence for the other substantial aggravating features of this offence, we have decided not to add the appellant’s Form 8 status to that enhancement in the overall interests of totality; particularly when the appellant has provided such useful assistance to the authorities and the administration of justice.  Nevertheless, the judge should, with respect, have properly addressed the appellant’s status and not simply swept it aside as now irrelevant.

25.  Accordingly, the only issue for us to determine is the reduction to which the appellant is entitled for having successfully given evidence against D1 and Lai, resulting in their convictions.  Mr Marray relied on the fact that the Customs and Excise authority had accepted in a statement provided to the Court by a Customs Inspector that “without the NPS, there would not be sufficient evidence to prosecute D1 and (Lai)”.  We were somewhat surprised by this statement for the evidence against Lai, in particular, was of her hiring the room at another hotel with cooking facilities where crack cocaine was manufactured, exchanging a series of telephone and voice messages with the appellant concerning how and where to “cook” crack cocaine, arriving at the said hotel that night and leaving the following day after 1 pm.  D1 and the appellant, having arrived at different times on the night of 28 June 2015, had left the said hotel at about 7 am on 29 June.

26.  What may certainly be said is that the appellant’s information and assistance provided the evidence which made sense of what was going on between D1, Lai and himself at the two hotels concerned. It was certainly important evidence in the conviction of D1 and Lai.  And it must have been believed by the jury, as Mr Tsang accepts it was, resulting in the unanimous convictions of both defendants.  The appellant did not, however, give evidence at the first trial of D1 in relation to the parcel from Venezuela, although he did plead guilty to that offence himself, pursuant to a plea bargain.  Mr Marray was thereby rather inhibited from saying that the appellant had cooperated fully from the outset on all matters, although it is true he had ultimately come to provide valuable assistance.

27.  In any event, Mr Marray rightly retreated from his original argument that the appellant was in the category of a “supergrass”.  As Stuart-Moore VP remarked, in Secretary for Justice v Tso Tsz Kin[17], a supergrass was “extremely rarely encountered” by the courts.  One such rare encounter was the applicant in R v Chiu Pak Wing[18], where Power VP (as he then was), noting that the applicant was in protected custody in Siu Lam Psychiatric Centre, his family having been subjected to threats[19], acknowledged[20]:

“… that the applicant must be placed in the category of a true supergrass. He has given evidence on several occasions, he has co-operated throughout, he appears to have been prepared to reveal all that he knows of the operations of international drug traffickers. There can be no doubt that the information which he has supplied has given substantial assistance to the police authorities enabling them to curb drug trafficking activities.”

28.  It is extremely rare and exceptional in the annals of criminal sentencing for a defendant to be given a two-thirds discount from what a sentence should otherwise be.  Courts should therefore be vigilant not to denude or demean the notion of a “supergrass”, which is the ultimate form of assistance and cooperation in multiple and very serious crimes, usually encompassing an inevitable and justifiable fear for the safety and security of the defendant or his family members.  Yet even where a defendant may properly be classified as a “supergrass”, the Court in Z v HKSAR[21] spoke in terms of sentence of “a maximum discount of two-thirds”[22]. Of this maximum, Mortimer JA (as he then was) had explained in R v Lai Kin-keung[23]:

“We do not regard the guideline to be that every ‘supergrass’ must receive a two-third reduction in his sentence. This is the maximum reduction that such an accused can expect. In each case it falls for the appropriate tribunal to assess the full circumstances of the assistance given and the risks faced.”

29.  That said, a “supergrass” in the true sense of the word is an exceptionally rare category of offender.  With regard to the characteristics said to qualify a defendant as a “supergrass” set out by McWalters JA in Cheung Chi Yuen, at [25], they do not, with respect, adequately or sufficiently delineate the unique and distinct attributes of a “supergrass”; rather the characteristics there set out could describe many defendants who choose to cooperate with the authorities in serious crimes. 

30.  Moreover, we do not think that it is necessarily helpful or correct, as stated in Cheung Chi Yuen at [29], to speak of “a range between a 50% discount and a two-thirds discount into which cooperating defendants may fall”, where “the closer (defendants) are to the end of the range, the more likely they are to be categorized as a supergrass”[24]. Putting it in this way seems to us not only to place ‘the cart before the horse’, but to risk undermining the unique and distinct quality and circumstances of the true “supergrass”.  In reality, there are those defendants who cooperate and give valuable evidence against their accomplices in the case, and who generally receive in the region of a 50% reduction from their notional sentences after trial; and those who properly fall into the exceptional category of a “supergrass”, who normally give highly material and significant assistance in the investigation and prosecution of multiple and very serious crimes, usually at significant risk to themselves or their families, and who will warrant a discount of up to two-thirds. 

31.  As correctly acknowledged in Cheung Chi Yuen, “[t]he true supergrass is an exceptional category of cooperating defendant who has been described as being ‘extremely rarely encountered’”[25].  To speak then of a range between 50% and 66.6% into which cooperating defendants may fall, whilst, of course, allowing for the exercise of judicial discretion, not only risks blurring the distinction between the “supergrass” and others who give very significant assistance to the prosecution, but is likely to lead to inconsistency and uncertainty in the sentencing process and invite unnecessary comparisons between different accomplices and their sentences, when the “supergrass” should be in a unique category.

32.  In our judgment, the authorities are clear on this matter: the overall discount for someone who has cooperated with the authorities and given evidence against a co-accused in a case in which he was himself charged, and has been substantially believed, should normally be in the region of 50% (including the one-third discount for a timely guilty plea): see Z, at [23].  We see no reason in this case to depart from that principle.

33.  Despite our reservations as to the judge’s generosity in reducing the starting point for the appellant’s contribution to Father Wotherspoon’s campaign, and her failure to acknowledge and properly reflect his Form 8 recognizance status in the sentence, we shall nevertheless accept that the notional sentence after trial should remain at 25½ years’ imprisonment; from which we would give a 50% reduction for the appellant’s plea and his assistance to the authorities, leading to the conviction of D1 and Lai.  The sentence thus becomes 12 years and 9 months’ imprisonment.

34.  For the above reasons, the appeal was accordingly allowed to the extent that the appellant’s sentence was reduced from 17 years’ imprisonment to 12 years and 9 months’ imprisonment.

[1]  [2023] HKCA 911 per Zervos JA.

[2]  Appeal Bundle (“AB”), p 32D-E.

[3]  The decision not to call the appellant to give evidence at D1’s trial, notwithstanding the appellant’s plea of guilty, no doubt stemmed from his second non-prejudicial witness statement, dated 22 December 2016, in which he had initially disclaimed any knowledge of the parcel.

[4]  AB, p 32E-M.  For some reason Lai was not initially charged with any offence in relation to the crack cocaine found in Langham Place Hotel, following her arrest on 20 July 2015, notwithstanding that she had booked the room at another hotel where the crack cocaine was manufactured, had a series of telephone and voice messages with the appellant relating to the manufacturing and place of manufacturing cocaine and been observed on CCTV entering and leaving the said hotel on 28 and 29 June 2015.

[5]  The consolidated cases of HCCC 372/2019 and HCCC 216/2020.

[6]  AB, pp 30O-31N.

[7]  AB, pp 16A-20K.

[8]  AB, pp 20M-22N.

[9]  HKSAR v Abdallah [2009] 3 HKLRD 437.

[10]  HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

[11]  HKSAR v Cheung Chi Yuen [2018] 2 HKLRD 1396, at [25].

[12]  HKSAR v Chan Sik-wai and another (Unrep., CACC 134/1999, 16 December 1999).

[13]  Ibid.,at p 9.

[14]  HKSAR v Mohamed Hussain Mohamed Imran [2020] HKCA 723.

[15]  AB, p 11M-N.

[16]  HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[17]  Secretary for Justice v Tso Tsz Kin [2004] 2 HKC 139, at [22].

[18]  R v Chiu Pak Wing [1995] 2 HKC 819.

[19]  Ibid., at 821A-B.

[20]  Ibid., at 821B-D.

[21]  Z v HKSAR [2007] 1 HKLRD 977.

[22]  Z, at [23].

[23]  R v Lai Kin-keung [1996] 1 HKCLR 153, at 156.

[24]  Cheung Chi Yuen, at [29].

[25]  Ibid., at [26].