HKSAR v. SHAH SYED ARIF

CACC 298/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 298 OF 2015

(ON APPEAL FROM HCCC NO. 394 OF 2014)

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JUDGMENT
AND
REASONS FOR JUDGMENT

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

1. By Notice of application for leave to appeal dated 8 September 2015, the applicant seeks leave to appeal against (i) his conviction on 20 August 2015 after trial before Zervos J (“the judge”) and a jury of a single count of trafficking unlawfully in a dangerous drug, namely 142.98 grammes of a solid containing 55.88 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; and (ii) the sentence of 10 years’ imprisonment imposed by the judge following his conviction.

2. Mr Trevor Beel acts for the applicant in respect of his application for leave to appeal against sentence only.  The applicant acts in person in relation to his appeal against conviction.  On 1 June 2016, we refused the application for leave to appeal against conviction and said we would hand down our reasons later but reserved our decision in relation to the application for leave to appeal against sentence.  Accordingly, this is both our decision on the application for leave to appeal against sentence and the reasons for our decisions on both applications.

The prosecution case

3. It was the prosecution case that at 7:38 pm on 6 April 2014, the applicant left Mirador Mansion from the main entrance to the building in Nathan Road, Tsim Sha Tsui after remaining in the building for about half an hour.  He was carrying a dark-coloured umbrella when he left the building; he was then intercepted and arrested by the police as he was about to get into a taxi.

4. The evidence disclosed that police officers had had the applicant under observation from 5:39 pm that evening.[1]  PC6344 (PW1), who was the arresting officer, noticed that there was a bulge near the base of a folded umbrella (Exh P2), which the applicant was carrying with him when he left Mirador Mansion.  The police therefore suspected that something was concealed inside the umbrella and, accordingly, the applicant was intercepted as he hailed and was about to get into a taxi.  PW1 revealed his identity, at which time he saw no other person in the taxi other than the applicant and the taxi driver. He then searched the applicant and the umbrella.

5. Eight packets wrapped in plastic in the form of snake eggs (Exh P1) were found in the umbrella.  The packets contained the dangerous drug, the subject of the count on the indictment, namely 142.98 grammes of a solid containing 55.88 grammes of cocaine.  The street value of the drug was $145,983.  PC2327 (PW2) seized the umbrella and the packets of cocaine.

6. The prosecution case was that the applicant was in possession of the cocaine for the purpose of trafficking either as a courier or retailer of the dangerous drug.  The prosecution relied on CCTV footage recorded by cameras installed at Mirador Mansion showing that the applicant entered and left the building with an umbrella.

7. A video-recorded interview of the applicant conducted the following day by PW1 and PW2 (Exh P15) was also produced in evidence.  The prosecution position was that, although they did not accept everything said by the applicant as being true, Exh P15 contained admissions as to the applicant’s role in the present offence.

The defence case

8. The applicant did not testify but relied on the explanation he had given to the police when interviewed.  In that interview, he asserted that the umbrella (Exh P2) had been found by PW2 in the rear of the taxi after the applicant had alighted, which assertion was specifically denied by PW2.  The applicant claimed that he was not carrying an umbrella when he was arrested, because he had already given his own umbrella(which he had bought in the evening on the day of incident) to his friend Shah Hashid (DW1)[2], when the latter caught a taxi outside Mirador Mansion.

9. DW1, the sole defence witness, testified that the applicant had given him a blue umbrella (Exh D6) on the day of incident when he met the applicant.  He and a friend had gone to meet the applicant outside Mirador Mansion after a telephone conversation with the applicant.  They had planned to have dinner with a few friends in the evening; accordingly, the applicant told DW1 that he would go home to change his clothes first.  At DW1’s request, the applicant then gave Exh D6 to DW1 as the applicant was about to board a taxi, on the understanding that he would return it when they met up later.

10. Under cross-examination, PW1 disagreed that (i) the applicant had met any other Southeast Asian male and passed him an umbrella before getting onto a taxi; and that (ii) when the applicant was in the taxi, he did not have an umbrella with him in his possession.

The summing-up

11. The judge explained to the jury their function, the burden of proof, the elements of the offence, in particular the meaning of possession and knowledge.  He then summarised the evidence of the prosecution and defence witnesses, including a detailed account of the contents of the applicant’s video-recorded interview.  The right of silence of the applicant was properly explained both generally, and specifically in respect of those questions in the video-recorded interview (and written record of interview) which he declined to answer.  Directions in respect of the applicant’s previous good character were also given.

12. The judge identified the issues in the case as

“… whether or not the [applicant] was in possession of the umbrella in question, Exhibit P2, and if he was, whether he knew there were drugs inside.”

At the conclusion of his summing-up, the judge returned to what he described as “the key issue in this case”.  He directed the jury that

“The matters which you may wish to consider, although it is entirely a matter for you, and you may also wish to consider other matters that you may think are important are whether or not the two police officers are telling the truth as to the circumstances of the arrest of the [applicant] and the finding of the umbrella, Exhibit P2, on him. The [applicant] says the police officers found the umbrella in the taxi, and it was not the umbrella he was earlier carrying, which he had bought that day and gave to Mr Shah after he got into the taxi outside Mirador Mansion. If you think the police officers are not, or maybe not telling the truth about finding the umbrella, Exhibit P2, on the [applicant], then he is not guilty. If you think they are telling the truth about finding the umbrella, Exhibit P2, on the [applicant], then you need to go on to consider the other matters that I have mentioned you need to consider in deciding whether he is guilty of the offence charged.”

13. The judge went on to illustrate the matter which the jury had to consider in determining whether the applicant possessed the dangerous drug.  He said:

“So this case depends essentially upon whether you are sure the [applicant] had in his possession the umbrella, Exhibit P2, and he knew inside it were concealed dangerous drugs. The questions you should ask are as follows:

(1) are you sure that in the evening of 6 April 2014, the [applicant] was in possession of the umbrella, Exhibit P2, inside which were eight plastic wrappings containing a quantity of cocaine as charged. If not, the verdict is not guilty;

(2) are you sure that the [applicant] knew that inside the umbrella, Exhibit P2, were eight plastic wrappings each containing a quantity of cocaine as charged. If not, the verdict is not guilty;

(3)  are you sure that the [applicant] was in possession of the umbrella, Exhibit P2, inside which were eight wrappings each containing a quantity of cocaine as charged, for the purpose of trafficking in them as a courier or retailer.  If not, your verdict is not guilty.  If you are, your verdict is guilty.”

In the result, the jury convicted the applicant unanimously.

Reasons for Sentence

14. The judge adopted a starting point of 8 years and 2 months’ imprisonment in accordance with the guidelines set out, and adopted in relation to cocaine, in R v Lau Tak Ming.[3]

15. The judge then referred to HKSAR v Sandagdorj Altankhuyag & Anor.[4]  He considered that the fact that the applicant had come to Hong Kong illegally, where he was permitted to remain at large as a torture claimant, and yet chosen to commit a serious criminal offence affecting the order and security of Hong Kong, was a blatant abuse of the goodwill and good intentions of the people of Hong Kong.  He said:

“It has been held by the Court of Appeal in HKSAR v Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206, that a person who comes to Hong Kong seeking asylum and commits a serious crime while that claim is being processed may constitute a serious aggravating factor depending on the circumstances of the case … Macrae J (as he then was) in the judgment of the court had this to say as to his status as a torture claimant on his sentence, and I quote:

“He was a torture claimant who, like many in his position, was not lawfully in Hong Kong but was nevertheless allowed to remain at liberty by virtue of a recognisance issued by the Director of Immigration whilst his claim was being processed. Yet, despite the hospitality extended to him by the authorities and people of Hong Kong, he chose to abuse that privilege by targeting an area well known as a tourist destination, and one that is frequented by significant numbers of tourists and locals alike, in order to steal.

Where someone in the position of the 2nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.

We do not say that someone sharing the 2nd appellant’s status would aggravate his position in every case or in every crime.  Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation.”

It is true that not every offence committed by a torture claimant would aggravate the crime, but when the crime is as serious as trafficking in a dangerous drug this will undoubtedly affect the community at large and have an impact on Hong Kong’s reputation for order and security and thereby constitute an aggravating factor when such a crime is committed by a torture claimant.  Of course each case will turn on its own particular facts and circumstances and the court has discretion as to whether or not a sentence should be enhanced in such a situation.”

16. The judge accordingly enhanced the above starting point by 1 year and 10 months, resulting in an ultimate sentence after trial of 10 years’ imprisonment.

Grounds of appeal against conviction

17. By his homemade grounds of appeal attached to his Form XI Notice, the applicant merely stated that “the conviction did not convince”, without advancing any substantive or further ground of appeal.

Grounds of appeal against sentence

18. The sole ground of appeal against sentence argued on the applicant’s behalf by Mr Beel relates to the quantum of the enhancement.  No issue was taken as to the starting point or with the principle of enhancement, given the status of the applicant and seriousness of his offence.

19. Counsel pointed out that in the case HKSAR v Sandagdorj Altankhuyag, one of the appellants had come to Hong Kong with the express intention of committing crime, which was held to constitute a serious aggravating factor; whereas the applicant in the present case had maintained a clear record from 2007 when he first arrived in Hong Kong, had married a local woman in 2012 and had applied for a dependency visa, although the dependency visa had since been refused.

20. It was submitted that the enhancement of 1 year and 10 months’ imprisonment was a disproportionate enhancement in the circumstances and that 6 months would have been an appropriate quantum of enhancement.  He contended that the resulting sentence of 10 years’ imprisonment after trial would have been an appropriate starting point under the guidelines in R v Lau Tak Ming for trafficking in about 125 grammes of cocaine, which was more than double the quantity of narcotic involved in the present case; and that the said enhancement of 22 months’ imprisonment was akin to the enhancement for the international factor in respect of cross-border trafficking in close to 1,000 grammes of cocaine: see HKSAR v Chung Ping Kun.[5]

21. In respect of the level of enhancement of sentence imposed on asylum seekers, Mr Beel produced a table of six cases heard in 2015[6], which suggested that such enhancements normally range from 3 months to 1 year depending on the seriousness of the case and other factors.  In one of those cases, namely HKSAR v Vikramjeet Singh[7], a decision at first instance, the enhancement of 1 year’s imprisonment represented an 8.3% increase from a starting point of 12 years’ imprisonment.  By comparison, the sentence in the present case had been increased by 22.4%.

22. Counsel submitted that, to ensure consistency and without having to factor in other variables, a fixed percentage increase of the starting point, which in drug trafficking cases would also directly correlate to the quantity of drugs concerned, would prevent disparity and promote clarity in the provision of legal advice to defendants before plea.

Respondent’s submissions on conviction

23. Mr Jonathan Man, SADPP, on behalf of the respondent, submitted that the judge correctly identified the key issues in the case and gave faultless directions on the law in an otherwise comprehensive and well-balanced summing-up.  By their unanimous verdict, the jury must have accepted the evidence of the police witnesses but rejected the defence case and evidence.

24. Accordingly, there was no conceivable ground upon which an appellate court should interfere with the verdict.

Respondent’s submissions on sentence

25. Mr Man submitted that four of the cases referred to in Mr Beel’s table were of little or no value at all, since they were decisions at first instance in either the District or High Court, which decisions had not been the subject of appellate review: see HKSAR v Nkwo Nnaemeka Darlington.[8]

26. He argued that there could be no sensible tariff of enhancement for individual asylum seekers whose particular crimes may vary widely in their impact on the people of Hong Kong and in their effect on this City’s reputation.  Consequently, there was no warrant for confining the level of enhancement to a specific percentage point.

27. Nevertheless, Mr Man accepted that the level of enhancement in this particular case was on the high side, albeit within the acceptable range, given the seriousness of the offence and the fact that it was clearly well-planned, as evidenced from the packaging of the cocaine.

Consideration

In respect of conviction

28. We can take the application for leave to appeal against conviction shortly.  No grounds at all have been articulated or, indeed argued, before us.  Nevertheless, we have examined the judge’s directions in the summing-up to ensure that no obvious point in the applicant’s favour has been overlooked.

29. In the result, we agree with Mr Man that there are no arguable grounds of appeal at all in this case.  The summing-up was meticulous and fair and the issues in the case clearly and fully presented to the jury by the judge.  Questions relating to the credibility of the respective cases were properly before the jury and were classically for them to decide. There can be no possible complaint about the judge’s directions.  For these reasons, the application for leave to appeal against conviction was refused.

In respect of sentence

30. As we have said, no issue is taken with the obvious proposition that those who are privileged to be permitted to remain in Hong Kong and to be at liberty whilst their various claims for asylum are being determined by the authorities, are required to behave themselves and abide by the laws of this jurisdiction.  If they abuse that licence by deliberately engaging in serious criminal activities aimed at the very community which has granted them that privilege, and if the crime in which they engage has the effect of tarnishing Hong Kong’s reputation for order and security, which are the very qualities they are seeking to secure for themselves, then that is a factor capable of aggravating the seriousness of their crime.  In HKSARv Sandagdorj Altankhuyag, as the judge was fully aware, we drew a distinction between crimes committed by claimants, which do not affect the community at large or have any significant impact on Hong Kong’s reputation, and those which do.

31. HKSAR v Sandagdorj Althankhuyag was later followed and applied in HKSAR v Norena Gutierrez Christhian Andres[9], where a different division of this Court explained, at para’s 23-27:

“23. Underlying the court’s conclusion in Sandagdorj is the reality that without making an immigration claim this foreigner would have no right to remain in Hong Kong, indeed his continued presence here would in itself be unlawful. It is only because his immigration claim is being processed that he is permitted to remain in Hong Kong. This permission flows from Hong Kong complying with international obligations that it has freely accepted and the human rights provisions of the Basic Law.

24. But Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. It does not do so because it sees itself, and wants to be seen by the rest of the world, as a society governed by the rule of law whose members place a high premium on the rights of the individual. One such right – perhaps Hong Kong’s most prized right – is the right of the liberty of the individual and Hong Kong extends this right to immigration claimants. As a consequence the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will also be given his liberty and permitted to live in the community until his claim has been processed.

25. By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

26. Analysed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law.

27.  But as Macrae JA pointed out in Sandagdorj, not every crime will justify taking account of the offenders’ immigration situation as an aggravating feature.  The offence committed must, by its nature or the circumstances of its commission, have a serious detrimental effect on the community at large or significantly impact, prejudicially, on Hong Kong’s reputation. Clearly drug trafficking falls within this category of crime as its commission both affects the community at large and has a significant impact on Hong Kong’s reputation.”

32. It seems to us undeniable that the trafficking of cocaine by people who are not normally entitled to be in Hong Kong but are licensed to remain at liberty in the community while their various claims for asylum are being processed, not only affects the community at large but has an obvious and significant impact on the reputation of this City.  The judge was plainly right to regard the applicant’s offence as a serious breach of the trust and privilege extended to him by the people of Hong Kong.

33. We should say here that this Court has been concerned for some time by what appears to us to be the increasing prevalence of serious crimes being committed by non-refoulement claimants, in particular torture claimants.  That is apparent from the weekly diet of appeals which routinely come before this Court.  Mr Man has confirmed that the Department of Justice is similarly concerned by this trend.  So that the courts are properly advised as to the extent of the problem, if it be a problem, we have requested through Mr Man that statistics be provided by the Department of Justice at some suitable opportunity in the future as to the number and types of crimes being committed by non-refoulement claimants in Hong Kong.  We make clear, however, that our perception of prevalence does not impact on the present application.

34. We do not agree that this Court should attempt some form of guidelines for the enhancement of sentences which come within this category.  The circumstances of each case and each individual will be different, and crimes will differ in the seriousness of their impact on the community and their effect on the reputation of Hong Kong.  HKSAR v Sandagdorj Althankhuyag was concerned with an offence of pickpocketing, while the argument in HKSAR v Norena Gutierrez Christhian Andres was primarily concerned with simple possession of a substantial quantity of 19.02 grammes of cocaine, albeit in the context of the trafficking in a further 5.41 grammes of cocaine.  In HKSAR v Azad Mohammad Farhan[10], this Court applied the same principle of enhancement to a torture claimant who had dragged a lone woman off a street in Kowloon into the staircase of a building, where she was subjected to a terrifying ordeal of rape, buggery and robbery.  The present case concerns a torture claimant who trafficked in a sizeable and valuable quantity of 55.88 grammes of cocaine on the streets of Hong Kong.

35. We do not in the circumstances think it is either prudent or possible to issue guidelines in cases which fall into the category we have been discussing.  The enhancement of sentence is best left to the discretion of the sentencing judge or magistrate.  Obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.

36. In our judgment, for the reasons he stated, which accord with our consideration of the above principles, the judge was fully justified in being concerned that someone in the applicant’s position should be abusing the privilege extended to him by the people of Hong Kong by trafficking on our streets in a substantial quantity of cocaine worth more than HK$145,000.

37. However, we agree with Mr Beel that the enhancement of 1 year and 10 months’ imprisonment was, in all the circumstances, too great.  In our judgment, the enhancement of the sentence should have been 1 year, making an overall sentence after trial of 9 years and 2 months’ imprisonment.

38. The application for leave to appeal is accordingly allowed to this extent and, treating the hearing of the application as the hearing of the appeal, we reduce the sentence from 10 years’ imprisonment to 9 years and 2 months’ imprisonment.

[1] PC6344 (PW1) had been observing and following the applicant from 5:39 pm that day in Kowloon City.  He lost sight of him at some stage for half an hour, but saw him again at around 6:40 pm.  He observed the applicant arrive at Mirador Mansion by taxi at around 7 pm.  PC2327 (PW2) followed the applicant into Mirador Mansion but also lost track of him.  At 7:35 pm, PW2 was informed by PW1 that the applicant had left the building from the Nathan Road exit.

[2] Like the applicant, this witness had also entered Hong Kong illegally and was a torture claimant.

[3] [1990] 2 HKLR 370.

[4] [2014] 1 HKC 206.

[5] (unrep., CACC 85/2014, 2 July 2014) at para 9.

[6] All were dangerous drugs cases, two of them being appellate authorities.

[7] HCCC 512/2014.

[8] [2016] 1 HKLRD 692, at 701 para 36.

[9] (unrep., CACC 319/2014, 30 April 2015).

[10] (unrep., CACC 173 & 253/2015, 15 July 2016).