HKSAR v. AHMED SANI SALMAN

CACC 334/2017

[2018] HKCA 414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 334 OF 2017

(ON APPEAL FROM DCCC NO 808 OF 2016)

________________________

________________________

________________________

J U D G M E N T

________________________

1.  The applicant (D1 at trial) was charged with three offences under the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”): (i) Trafficking in a dangerous drug, namely 73.0 grammes of a solid containing 41.8 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Ordinance (Charge 1); (ii) Possession of dangerous drugs, namely 0.20 gramme of a powder containing 0.11 gramme of cocaine and 3.00 grammes of a crystalline solid containing 2.95 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 8(1)(a) and (2) of the Ordinance; and (iii) Possession of apparatus (one inhaling device) fit and intended for the inhalation of a dangerous drug, namely Ice, contrary to section 36(1) and (2) of the Ordinance (Charge 3).

2.  The applicant pleaded guilty to all charges.  On 29 September 2017, he was sentenced by HH Judge Dufton (“the judge”) to an overall term of 5 years and 9 months’ imprisonment.

3.  On 19 October 2017, the applicant filed a Form XI Notice applying for leave to appeal against sentence.  The respondent does not oppose his application for leave.

The facts admitted by the applicant

4.  The facts of the case are perhaps of little significance.  On 23 December 2015, at 9:05 am, when the applicant was about to leave Unit C1, 1/F, Lee Shun Building, Nos 157‑159 Lockhart Road, Wanchai, carrying a black bag and a plastic bottle, he was seen by the police and immediately discarded the two items.  He was intercepted for a search of his person and subsequently his flat.  Thereupon, there was found:

(i) In the black bag he was carrying: a total of four re‑sealable transparent plastic bags (three of them with red lines) containing the subject matter of Charge 1.

(ii) Inside the plastic bottle he was carrying: a straw containing a liquid, which was subsequently decanted into unquantifiable traces of Ice.  Next to the plastic bottle were a glass tube and a lighter.

(iii) In the underpants he was wearing: two pieces of tissue paper, and a HK$20 banknote, in which part of the subject matter of Charge 2[1] was found.

(iv) On the table of the flat: a transparent plastic bag containing part of the subject matter of Charge 2[2], some 86 re‑sealable plastic bags[3] and an electronic scale.

5.  The street value of the cocaine and Ice was $77,738 and $903 respectively.

6.  Whilst no admissions were made upon his arrest, when pleading guilty to the offences the applicant accepted that he was trafficking in the dangerous drugs, the subject matter of Charge 1; while he was in possession of the drugs, the subject matter of Charges 2 and 3.

7.  The chronology of the proceedings in the court below, which is relevant to the issue of discount, is as follows:

Date	Nature of the hearing	Remarks
23.9.2016	Plea (before HH Judge A Kwok)	The applicant pleaded not guilty.  Trial dates were fixed (for 15.2.2017 with 3 days reserved).
15.2.2017	Trial (before Deputy Judge Wong Sze Lai)	As a result of the new developments in the case, the case was adjourned to 30.3.2017 for mention.
30.3.2017	Mention (before HH Judge E Yip)	The applicant maintained his plea of not guilty.  The case was adjourned for trial (re‑fixed to 24.7.2017 with 5 days reserved).
24.7.2017	Trial (before HH Judge Dufton)	The applicant indicated he was going to plead guilty.  The case was adjourned until the next day.
25.7.2017	Trial	The applicant pleaded guilty.
25.8.2017	/	Sivan proceedings[4] were conducted to ascertain the value of applicant’s assistance provided to the authorities.
28.9.2017	Mitigation	/
29.9.2017	Sentence	/

Sentencing

8.  The applicant was a Form 8 Recognizance holder. From 2011 to 2016, he had been convicted of a total of four drug-related offences, including an offence of Trafficking in 2011, for which he was sentenced to 27 months’ imprisonment.

9.  As regards Charge 1, the judge adopted a basic starting point of 7 years and 4 months’ imprisonment, which he enhanced to 8 years and 3 months’ imprisonment, on the basis of the aggravating features as follows:

		Enhancement
(a)	Persistent offending	2 months
(b)	Committing an offence whilst on bail	3 months
(c)	Refugee status	6 months
	Total:	11 months

10.  In respect of Charges 2 and 3, the judge adopted starting points of 15 months and 3 months’ imprisonment respectively.  He considered that the applicant was only entitled to a 20% discount for his pleas, since they had not been entered in a timely manner.

11.  In respect of mitigating circumstances, the judge indicated that a “meaningful” discount should be given in light of the maximum jurisdiction of the District Court.  However, the judge did not in his reasons for sentence spell out the nature of the applicant’s assistance to the authorities, or the specific discount to which he was entitled for that assistance.  In the result, the judge gave the applicant a 30.3% discount in respect of Charge 1[5], and a (greater) discount of 33.3% for Charges 2 and 3[6], making the following sentences:

(i)  Charge 1: 5 years and 9 months’ imprisonment;

(ii)  Charge 2: 10 months’ imprisonment; and

(iii)  Charge 3: 2 months’ imprisonment.

The judge ordered that all sentences were to be served concurrently with each other.

Grounds of appeal

12.  In his Form XI, the applicant said that the discount given to him was inadequate.  By his written submissions dated 17 December 2017, he complains that the extent of the discount given to him by the judge for his assistance to the authorities was not made clear.

Respondent’s submissions

13.  By letter dated 11 January 2018, Mr Franco Kuan, on behalf of the respondent, accepted that it might be argued that it was not clear how the judge apportioned the discount between the various mitigating factors.  He was prepared to accept that the appeal was reasonably arguable, even though he considered the sentence could be supported.

Consideration

14.  At first blush, as Mr Kuan recognises, the overall reduction for plea and assistance would appear to be on the low side.  There may or may not be valid reasons for that.  However, they are matters which may be properly canvassed at the appeal.  For present purposes, given the position of the respondent, I grant leave to appeal on the ground that the sentence is manifestly excessive and/or wrong in principle.

15.  I further grant the applicant a legal aid certificate to enable him to be represented at the appeal hearing.