HKSAR v. TARVEEN ROHIT ROY R T PRAKASH

CACC 131 /2020

[2021] HKCA 1595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 131 OF 2020

(ON APPEAL FROM HCCC NO 75 OF 2019)

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J U D G M E N T

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1.  The applicant was convicted on his own plea of guilty to a single count of trafficking unlawfully in 294 grammes of a mixture containing 193 grammes of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 31 July 2020, he was sentenced in the High Court by Deputy Judge Bruce (“the judge”) to 8½ years’ imprisonment.

2.  On 25 August 2020, the applicant filed a Notice of Application for Leave to Appeal against sentence, by way of Form XI.

The facts admitted by the applicant

3.  On 28 May 2018, the applicant arrived at Hong Kong International Airport on a flight from Malaysia.  He was intercepted for Customs clearance at the arrival hall.  When he opened his suitcase, Customs officers discovered a rucksack, in a stitched compartment of which was found a sealed packet of the heroin hydrochloride particularised in the indictment.

4.  The applicant was arrested and, in answers given under caution, he admitted possession of the rucksack and said that it had been given to him by his brother in Malaysia.  He further stated that he had no instructions for the rucksack but a person was waiting for him at the Princess Hotel.  With the cooperation of the applicant, Customs officers arranged a controlled delivery operation at a park in Tsim Sha Tsui near the Princess Hotel.  The applicant exchanged various messages and calls with a contact in his telephone, and with two other telephone numbers, which he said were related to the suitcase but no one turned up.  At the time of arrest, the applicant had with him only HK$428, $12.80 Malaysian Ringgit and a mobile telephone.

5.  In a subsequent cautioned video-recorded interview, the applicant stated that he had come to Hong Kong in order to collect 4,000 Malaysian Ringgit owed to his friend by his friend’s employer in Hong Kong.  It was his friend’s employer, who was in Malaysia at the material time, who had paid for the applicant’s flight ticket and hotel, driven him to the airport and placed the rucksack in the suitcase. The applicant was told to meet a person at the hotel, from whom he could collect the money.

6.  The estimated street value of the heroin hydrochloride seized, as at May 2018, was approximately HK$269,304.  By admitting the Summary of Facts, the applicant accepted and admitted that he was knowingly in possession of the dangerous drug for the purpose of unlawful trafficking.

Mitigation

7.  The applicant, a Malaysian national, was 19 years of age at the time of his arrest.  He had no previous convictions in Hong Kong or in Malaysia.  Before his arrest, he had been studying for a Diploma in Mechanical Engineering and was working part-time to supplement his expenses.  I should say that I can see from various educational certificates produced to me by the applicant this morning that he is a highly intelligent person.

8.  Counsel on the applicant’s behalf at trial described his participation in the controlled delivery operation and complained that it had been unfruitful because of the way it was conducted by Customs officers. He further explained the circumstances of the applicant’s delay in pleading guilty.  It was said that he had previously filed an application to reverse his plea in order to allow him sufficient time to make enquiries of Malaysian authorities.  He subsequently confirmed his guilty plea after withdrawing his application. 

Reasons for sentence

9.  By reference to the sentencing guidelines for trafficking in heroin set out in R v Lau Tak Ming and Ors^[1] and HKSAR v Abdallah^[2], the judge considered an appropriate starting point to be 11 years and 6 months’ imprisonment for 193 grammes of heroin narcotic.  This the judge enhanced by 3 months for the international element involved in bringing drugs over the border into Hong Kong.

10.  The judge then considered the appropriate discount for the applicant’s guilty plea and his assistance to authorities.  It is necessary to set out the relevant chronology of proceedings in order to understand the context in which the judge came to the appropriate discount for the guilty plea:

2 July 2019	- 1st hearing in the High Court (the applicant had already pleaded guilty at Committal).  The applicant (represented by counsel) applied for an adjournment to make certain enquiries in Malaysia.
24 October 2019	- 2nd hearing.  The applicant (represented by new counsel) indicated that an application would be made to reverse plea.  Accordingly, the applicant was ordered to file a notice of application.
3 December 2019	- 3rd hearing.  The applicant’s counsel applied to adjourn the case for mention, since he was not ready to proceed with the application to reverse plea.  The court was informed that the basis for the reversal of plea application was that there had been misrepresentations and mistaken advice given to the applicant by his previous counsel.  The applicant was ordered to serve an affirmation on the prosecution well in advance of the next hearing.
24 December 2019	- 4th hearing.  An affirmation was served on the prosecution shortly before the commencement of the hearing.  The application to reverse plea was then set down for 13 and 14 February 2020.
3 January 2020	- 5th hearing.  The applicant was directed to file an affirmation in support of his application to reverse plea by 10 January 2020, and to confirm whether the application would proceed at least 14 days before the hearing.
10 January 2020	- The applicant filed an affirmation.
13 February 2020	- The hearing dates fell within the General Adjourned Period (GAP) and was accordingly re-fixed to 16 and 17 June 2020.
30 May 2020	- The applicant informed the court by letter that his application to reverse plea would not be pursued.
16 June 2020	- 6th hearing.  Counsel applied to withdraw the application to reverse plea.
28 June 2020	- 7th hearing.  The applicant pleaded guilty.  During mitigation, counsel informed the court that the real reason for the application to reverse plea was to make enquiries of Malaysian authorities about the criminal conduct of other persons involved.
31 July 2020	- 8th hearing.  The applicant was sentenced to 8½ years’ imprisonment.

11.  The judge considered that a substantial amount of the court’s time had been wasted as a result of the proposed application to reverse plea, in the course of which the applicant had withheld the real reason for making the application, and made assertions of serious misconduct against his former legal representatives, which were ultimately never pursued.  Having been fully apprised of the situation, the judge reduced the conventional discount for the applicant’s plea of guilty to 17%.  However, he allowed a further discount of 10% for the applicant’s participation in a fruitless controlled delivery operation.

12.  By applying a discount of 27% to the enhanced starting point of 11 years and 9 months’ imprisonment, the applicant was sentenced to 8½ years’ imprisonment. 

Grounds of appeal

13.  The applicant, who is acting in person, originally complained in his Form XI that the final sentence imposed on him was manifestly excessive.  However, this morning, he has produced a number of documents purporting to show that he has given useful information to the Malaysian authorities and to Father Wotherspoon, a prison chaplain, as well as various educational certificates and letters of reference.

14.  Accordingly, I have made enquiries about this purported information, the usefulness of which, Ms Florrie Chan, for the respondent, does not accept.  Firstly, whilst it is true that the applicant’s mother lodged a complaint to the Malaysian police about one Prabakaran, it is clear that Pabakaran’s subsequent arrest and detention were in relation to another case altogether, as the applicant himself confirmed to the court. Secondly, Ms Chan informs me that during the controlled delivery operation a number of messages and calls were received from “Praba”, who the applicant then claimed had nothing to do with the drugs.  Therefore, she argues that there never was any genuine attempt to assist the authorities in Hong Kong.  The applicant retorts that at the time he did not suspect his friend Prabakaran of involvement in the offence.  Thirdly, the information given to Father Wotherspoon, which was passed to the applicant’s solicitors and then to the prosecution, was actually shown to be in relation to the wrong person.

The respondent’s reply

15.  Ms Chan submitted that the initial starting point and enhancement for the international element involved were entirely appropriate and in accordance with well-established sentencing principles and guidelines. As for the applicant’s assistance to authorities by participating in an unsuccessful controlled delivery operation, such assistance was limited and unfruitful.  As explained in HKSAR v Lo Sze Tung Stephanie^[3], there would need to be something quite exceptional in such assistance to justify a discount of as much as 40% (incorporating the one-third discount for plea), which is the high water mark for a discount incorporating this factor.  A 10% discount was well above that high water mark.

16.  The respondent further submitted that the judge was entitled to find that the amount of time wasted by the applicant was substantial, and to treat the applicant’s confirmed plea as a late plea.  The application to reverse plea had necessitated multiple hearings over a period of many months before it was ultimately abandoned. 

Discussion

17.  An appellate court will look at the ultimate sentence passed on the applicant, however it has been reached, and ask itself whether it was, in all the circumstances, either manifestly excessive or wrong in principle.  If it is arguable that the discount for plea of 17% was on the low side, the effective discount for participation, which the respondent says was not genuine, in an unfruitful controlled delivery operation of 10% was far more than was justified under the authorities.  Adding the two discounts together, I do not think it is reasonably arguable that the overall 27% discount accorded to the applicant, bearing in mind the complete waste of court time that was involved in the application to reverse plea, under the guise of a complaint against the applicant’s previous counsel, has resulted in a sentence that was either manifestly excessive or wrong in principle.

18.  There being no reasonably arguable grounds of appeal against sentence, the application for leave to appeal is refused.  The applicant is duly informed that he has the right to renew his application for leave to appeal against sentence to the Court of Appeal, but he is also warned that that Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of the application.

[1]  [1990] 2 HKLR 370.

[2]  [2009] 2 HKLRD 437.

[3]  [2019] 1 HKC 309.