HKSAR v. MALIK KAMRAN

CACC 112/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 112OF 2017

(ON APPEAL FROM DCCC NO. 907 OF 2016)

____________

____________

______________________

J U D G M E N T

______________________

1.  The applicant, a Form 8 recognizance holder from Pakistan, seeks leave to appeal against his conviction on 7 April 2017 after trial by District Court Judge Casewell of a charge of unlawful trafficking on 10 July 2016 in 8 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Also, he seeks leave to appeal against the sentence of 5 years’ imprisonment imposed on him by the judge in consequence of that conviction.

2.  At the outset of the hearing, the applicant, who appeared in person having been refused the grant of legal aid on 12 June 2017, applied for an adjournment to await a reply from the Bar Association’s Free Legal Advice Scheme to his request for assistance.  He said that he was unaware of a letter to him rejecting that application, dated 25 August 2017, which the Court drew to his attention.

The trial

3.  It was an admitted fact that, having been intercepted by a police officer at about 18:30 hours on 10 July 2016 in the pedestrian subway of Pei Ho Street, Sham Shui Po, Kowloon, a search of a red recycling bag carried by the applicant in his right hand revealed the presence of a white paper box containing, inter alia, four small packets of re-sealable transparent plastic bags containing 7.29 grammes of Ice.  Having been arrested, the applicant was taken to the Sham Shui Po Police Station where a search of his person revealed the presence of another transparent re-sealable plastic bag in the applicant’s right front trousers’ pocket.  It contained 0.71 grammes of Ice.   The estimated retail value of the seized Ice was $2,940.

4.  In an interview conducted by a police officer on 11 July 2016, having admitted that he was in possession of the Ice the subject of the charge, the applicant said that he had bought it from a Chinese man at the Mong Kok MTR station for $400.  The Ice was for his own consumption, not for trafficking.

5.  Furthermore, it was an admitted fact that at the time of arrest, the applicant was in possession of $810.  Also, it was accepted that, as an asylum seeker to whom a Form 8 recognizance had been issued by the Department of Immigration, he was not entitled to work in Hong Kong.

The defence case

6.  The applicant gave evidence and called a witness, Mr But, in the defence case.  The latter said that on 7 July 2017 he had given the applicant $2,000, which was part of $5,000 which had been given by the applicant’s family to Mr Butt’s family in Pakistan for payment to the applicant.  He had made similar payments to the applicant on five to seven occasions, in the range of $3,000 to $5,000, from 2008 onwards.

7.  The applicant testified that he had bought the Ice, which had been found in his possession on 10 July 2016, for $400 from a Chinese man in Mong Kok.  That was the amount of money that he told that man that he had in his possession in answer to the question to that effect.  Although the man had asked for $500, he accepted payment of $400.  He had purchased Ice from the man on earlier occasions.

8.  The applicant said that he had abused Ice for about seven to eight years.  He said he was actually consuming about three to four grammes per day.  In 2014 and 2015, he had been convicted of possession of dangerous drugs, but he had no convictions for unlawfully trafficking in dangerous drugs.

Reasons for verdict

9.  In his reasons for verdict, the judge said that the issue in the case was whether or not the prosecution had proved beyond reasonable doubt that the applicant was in possession of the dangerous drugs “in order to do what has been described as dealing in the drug.”  Noting that there was no direct evidence in respect of that issue, the judge said the question was whether or not that was the only reasonable inference to be drawn from the proved facts.  In that regard, he noted that the prosecution relied on “the defendant’s possession of the drug, of this quantity of drug in a public place”.

10.  Of the applicant’s evidence that he possessed the Ice for self‑consumption, the judge found “…the defendant’s evidence as to his consumption of the drug was something unbelievable.  He said clearly in evidence he will consume between 3 to 4 grammes of the drug per day when he was in possession of the drug.”

11.  Of the issue of the range of self-consumption of Ice by abusers, the judge said that he had regard to the judgments of this Court in HKSAR v Tam Yi Chun [1] and the Attorney General v Ching Kwok Hung [2].  The judge noted that in the latter case this Court received expert evidence as to the range of consumption of Ice by abusers.  In particular, he said that this Court had noted that Doctor Leung, a Government Chemist of the Forensic Division of the Government Laboratory, had testified that:

“ one-tenth of a gramme of Ice without reuse would be sufficient for three to four of what in the vernacular are called ‘hits’… Ice can be used and re-used. Its effect lasts between 2 to 12 hours with the average being somewhere in the middle of that period.”

12.  Further, having regard to “use and reuse”, this Court noted that Doctor Leung “was of the view that on the basis of use and reuse, 10 to 15 hits could be obtained from one gramme.”  Having regard to the calculations in respect of one-tenth of a gramme, the judge said that “1 gramme of ice would provide between 30 to 40… hits for the average user.”

13.  Of the applicant’s testimony that he consumed 3 to 4 grammes per day, the judge said “this would lead to a figure by my calculation of between 30 to 45 undiluted hits which the defendant would use in one day.  That clearly, given that one‑hit could last up to two to 12 hours means that the defendant’s evidence about what he told me about his consumption of the drug must clearly be untrue.”

14.  Of the applicant’s testimony that he had paid $400 for the 8 grammes of Ice, which it was accepted was worth almost $3,000 the judge said “again, I assess this as clearly being untrue.  It cannot be the case that any dealer would sell such what are pure drugs at such a grossly under‑value.  To suggest that this is possible is frankly, my view, absurd.”

15.  In the result, the judge determined:

“ I had no hesitation in finding the defendant had been untruthful as to these two key areas relating to his consumption of the drug and the price at which he bought them. I have therefore no hesitation in rejecting the defendant’s evidence about his use, his consumption of the drug and the price at which he obtained them.”

16.  Then, the judge went on to consider whether or not the inference could be drawn properly that the applicant was unlawfully trafficking in the dangerous drugs of which he was in possession.  Noting that the 8 grammes of Ice “could provide between 80 to 120 undiluted doses for an addict”, that the applicant possessed the dangerous drugs in a public place and that the applicant appears to have no source of income besides infrequent cash amounts provided by Mr But, the judge found:

“ This would clearly not be sufficient to fund the nature of the addiction that the defendant appears to have or the quantity of drugs that he had.”

17.  In the result, in convicting the applicant of unlawfully trafficking in the Ice, the judge said:

“ In my view, these drugs are clearly possessed in this way for commercial sale or trafficking or distribution to other users and they must be possessed for that purpose.”

Reasons for sentence

18.  In sentencing the applicant, the judge noted that as a Form 8 recognizance holder, the applicant was “unemployed in Hong Kong”.  Also, he noted that the applicant had two convictions for the possession of dangerous drugs.  First, in 2014 he had been sentenced to 8 months’ imprisonment and then, secondly in 2016 he received another sentence of 8 months’ imprisonment on conviction of the same offence.

Starting point for sentence

19.  Having said that the guidelines for sentencing for unlawful trafficking in Ice provided for sentences in the range of 3 to 7 years’ imprisonment for unlawfully trafficking in up to 10 grammes of Ice, the judge stipulated a starting point for sentence “in the region of 6 years’ imprisonment”.

Self-consumption

20.  Having noted that the applicant admitted that he consumed Ice and that he had previous convictions for the possession of dangerous drugs in 2014 and 2016, the judge said:

“ All these factors are suggestive that the defendant is a consumer of the drug for a substantial period and would be a person who would fund his consumption of the drug through his sale of it.”

21.  As a consequence, the judge said that he accepted the mitigation that a “significant portion” of the Ice was intended for self‑consumption. Having adverted to the judgment of this Court in HKSAR v Chow Chun Sang [3], he said that in such circumstances a defendant “would be eligible for a discount from the normal starting point ranging between 10 to 25 percent of the starting point.”  Then, the judge said “I think the appropriate deduction is in the region of what would be 15 percent which would be a deduction of 12 months.”

Sentence

22.  In the result, the judge imposed a sentence of 5 years’ imprisonment on the applicant.

Grounds of appeal against conviction and sentence

23.  In a handwritten statement attached to Form XI, by which the applicant gave notice of his applications, the applicant asserted that he had been wrongly charged with “drugs trafficking instead of possession” and that as a result he sought a retrial.  In respect of sentence the applicant asserted simply that the sentence of 5 years’ imprisonment was “to(o) severe”.  In his oral submissions, the applicant asked that his sentence be reduced, that he be given a discount to reflect self‑consumption. Finally, he asked for forgiveness.

The respondent’s submissions

24.  In his written submissions for the respondent, reiterated orally, Mr Daryanani submitted that the applications for leave to appeal against conviction and sentence ought to be refused.

25.  He submitted that possession of 8 grammes of Ice by itself was insufficient to draw an irresistible inference of unlawful trafficking in that dangerous drug.  However, he said that the judge was entitled to have regard to all the circumstances relevant to the drawing of that inference.  He said that was what the judge had done.

26.  Mr Daryanani invited the Court to note that in refusing leave to appeal against a conviction for unlawfully trafficking in 10.08 grammes of Ice in HKSAR v Chui Yuet Kwan Ady [4], McWalters JA noted that at the trial expert evidence had been called by the prosecution, through a Dr Tang Wai Kwong as to the range of self-consumption of Ice by abusers of that drug.  McWalters JA noted that Dr Tang had testified that he had relied on unidentified study conducted in the Mainland which concluded that the range of self‑consumption was 0.1 grammes to 2 grammes per day.  Apart from being named, no other information was provided of Dr Tang’s expertise.

27.  Mr Daryanani informed the Court that the applicant had arrived in Hong Kong on 25 March 2003 and had been permitted to remain until 8 April 2003.  From 9 April 2003 onwards he had overstayed.  On 7 June 2010, he had been arrested, but had absconded.  On 10 January 2014, he had been sentenced to a term of imprisonment for breach of a condition of stay.  On 11 April 2014 he made a ‘torture’ claim to the Immigration Department.  Although enquiries were made during the hearing of the Immigration Department, Mr Daryanani was unable to provide the court with any information of what, if any, progress had been made in processing that claim in the ensuing period of more than three years.

Sentence

28.  MrDaryananisubmittedthatthestartingpointforsentence arrived at by an arithmetic calculation was 6 years and 2 months’ imprisonment.  By contrast, the judge had stipulated a starting point for sentence “in the region of 6 years’ imprisonment.”  Finally, he submitted that the discount of 15 percent that the judge stipulated to reflect the fact of his finding that a “significant portion” of the Ice was for self‑consumption was within the range of 10 to 25 percent identified by this Court as being appropriate in such circumstances.  The discount actually afforded was within the range of the judge’s discretion.

29.  The judgment of this Court in HKSAR v Shah Syed Arif [5]having been drawn to his attention by the Court, Mr Daryanani acknowledged that the fact that the offence of unlawful trafficking had been committed by the applicant, whilst he was at liberty in Hong Kong as a Form 8 recognizance holder, was a factor that was capable of constituting a factor of aggravation in the commission of the offence.  He accepted that counsel for the prosecution at trial had not drawn the judge’s attention to the line of authorities of which that judgment was one authority.

A consideration of the submissions

Conviction

30.  Of the range of self-consumption by abusers of Ice, the judge was entitled to take judicial notice of the reported judgments of this Court in HKSAR v Tam Yi Chun and the Attorney General v Ching Kwok Hung.  They are authoritative and considered judgments of this Court setting out guidance on the issue.  It is to be noted that in the former case, in which judgment was delivered on 9 June 2014, this Court received the evidence of Doctor Tse Man Li, a Consultant and Deputy Director of the Hong Kong Poison Information Centre under the Hospital Authority.  In the judgment of the Court, Stock VP said “Dr Tse endorsed much of what was said about Ice in Ching Kwok Hung”.  The Court went on to note that Doctor Tse said “for regular users of Ice, the average daily consumption is in the range of 0.1 to 0.5 grammes”, but added that in Ching Kwok Hung this Court had noted that “Ice can be used and reused”.

31.  It is not surprising that the judge did not refer to the unreported judgment of the single judge in refusing leave to appeal against conviction in HKSAR v Chui Yuet Kwan Ady.  That was a determination by the single judge in respect of a particular case and not an attempt to provide any general guidance on the issue in question.

32.  It is clear, as he was entitled to, that the judge had regard to several factors in determining that he inferred that the applicant was unlawfully trafficking in the dangerous drugs of which he admitted possession.  First, that they were possessed in a public place.  Secondly, the fact that the applicant had no source of income, other than occasional donations from his family and, thirdly the fact that the 8 grammes represented a number of doses/hits that could be provided was “far beyond that that would be held by a person for his own consumption.”

Conclusion

33.  I am satisfied that the applicant has advanced no reasonably arguable grounds of appeal in respect of conviction.  Accordingly, I refuse the application for leave to appeal against conviction.

Sentence

34.  Although the judge was relatively non‑specific in stipulating the starting point for sentence as being “in the region of 6 years imprisonment”, it is clear that in stating that he afforded the applicant a “deduction of 12 months’ imprisonment”, to reflect the discount of 15 percent he afforded the applicant to reflect the fact that a “significant portion” of the dangerous drugs was for self‑consumption, and in then sentencing the applicant to 5 years’ imprisonment, that the judge did take 6 years’ imprisonment as the starting point.  Although the starting point of 6 year’s imprisonment was less than the starting point calculated on a purely arithmetic basis, nevertheless it was clearly within the judge’s ambit of discretion.

35.  Although the judge noted that the applicant was an asylum seeker and a Form 8 recognizance holder, he made no reference to the fact that was capable of being a factor in aggravation of the commission of the offence.  There is a well-established consistent line of authority that, if a non‑refoulment claimant was permitted to remain in Hong Kong and to be at liberty whilst his claim was being determined by the authorities, commits a serious crime which has the effect of tarnishing Hong Kong’s reputation for order and security that is a factor capable of aggravating the seriousness of his offence.[6]

36.  In the judgment of this Court in HKSAR v Shah Syed Arif, Macrae JA said:[7]

“ 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.”

37.  With respect to the judge, he fell into error in not determining that in unlawfully trafficking in 8 grammes of Ice, whilst the applicant was permitted to be in Hong Kong as a Form 8 recognizance holder, was a factor in aggravation in the commission of this offence.  That factor of aggravation ought to have been reflected in an enhancement of the starting point taken for sentence.

Conclusion

38.  Accordingly, I am satisfied that there are no reasonable grounds of appeal against sentence.  Indeed, in my judgment the sentence imposed on the applicant was unduly lenient.  Accordingly, I refuse the application for leave to appeal against sentence.

39.  The applicant is advised that he has the right to renew his application for leave to appeal against conviction and sentence to the Full Court, but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.